Massachusetts Senate Docket 1691 (S.471) (2023) - (Introduced)

Covered materials are any packaging material or paper products regardless of recyclability or compostability, that are sold, offered for sale, or distributed to consumers in the state, including through an internet transaction.

Paper products includes paper that can or has been printed on including flyers, brochures, booklets, catalogs, greeting cards, telephone directories, magazines, paper used for copying, writing or any other general use.

Exclusions include:

1. Packaging intended to be used for long-term storage or protection for at least 5 years
2. Beverage containers subject to a deposit
3. Paper products that could become unsafe or unsanitary to recycle
4. Literary, text, or other bound books
5. Newspapers

Residences are covered entities.

Schools and municipal buildings are covered entities.

Small businesses and hospitality locations are covered entities.

Public spaces are covered entities.

For covered materials, producer is defined as 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. For packaging the definition of producer is person who manufactures a product under the manufacturer’s own brand that uses covered material.

If there is no brand owner then the producer is the person who is not the manufacturer of a product under the manufacturer’s own brand that uses covered material, but is the owner or licensee of a trademark under which a covered material issued in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not the trademark is registered.

Lastly, 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 in the commonwealth. Producer includes a franchisor of a franchise located in the commonwealth but does not include the franchisee operating that franchise.

If a producer realized less than $1,000,000 in total gross revenue during the prior calendar year, or sold, offered for sale or distributed for sale in or into the commonwealth during the prior calendar year products contained, protected, delivered, presented or distributed in or using less than one ton of covered material in total they are exempt from the definition of producer.

Nonprofit organizations are exempt from the definition of producer.

Producers shall develop a producer responsibility organization and be contracted y the department to act on behalf of producers to develop and implement a producer responsibility plan.

The producer responsibility organization shall be a 501(c)(3).

The PRO shall reimburse participating collectors for costs associated with collection, processing, transportation and recycling of covered materials.

Program funds will be used for costs associated with collection, processing, transportation and recycling or disposal of covered materials.

Program funds will be used for educational and outreach efforts made by the packaging reduction organization. The PRO shall ensure that not less than two (2) percent is used for education.

Program funds will be used for all costs incurred 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, compliance, enforcement, and sufficient staff positions to administer the program.

Program funds will be used for investments in infrastructure enhancement and convenience efforts made by the packaging reduction organization. The PRO shall ensure no less than eight (8) percent is used for infrastructure.

There must be a flat-rate fee schedule for producers generating between 1 and 15 tons of covered materials annually.

The fee schedule shall be set by the department and will include a materials cost differentiation system developed by the department. The department shall regularly publish a schedule of adjustments to be used by the producer responsibility organization in determining the amount of producer payments required. This shall be used to adjust the fees assessed for categories of covered materials.

Fees must incentivize increased use of post-consumer recycled content material in covered materials so long as it does not increase the toxicity of the packaging material.

Fees must incentivize minimal life cycle impact of covered materials.

Fees must incentivize reuse and lifespan extension of packaging.

Fees must incentivize the use of the minimum quantity of packaging necessary to effectively deliver a
product without damage or spoilage.

Fees must incentivize covered material waste reduction, reduced use of toxic substances in covered materials, the use of readily recyclable materials to manufacture covered materials, and single-material packaging with clear recycling or disposal instructions for consumers, and other design characteristics that reduce contamination in recycling.

The PRO must include in its plan how the organization will achieve a combined reduction from a specified baseline and recycling rate, based on regular audits of outbound tonnages of covered material from facilities of no less than sixty (60) percent by weight by July 1, 2030, no less than seventy five (75) percent by weight by July 1, 2035, and no less than ninety (90) percent by weight by July 1, 2040, of covered materials managed by the organization.

If there is an alternative collection program, the program shall ensure that a combined reduction and recycling rate is achieved of no less than sixty-five (65) percent by weight by July 1, 2030, no less than eighty (80) percent by weight by July 1, 2035, and no less than ninety (90) percent by weight by July 1, 2040 of covered materials managed by the organization.

The PRO must meet proposed minimum post-consumer recycled material content rates. The minimum post consumer recycled material content rates shall include each covered material category, and shall not be less than ten (10) percent of all material in each covered material category, by weight by 2035.

The PRO must provide convenient and free consumer access to collection services or collection facilities for all covered entities in the commonwealth.

Within 6 months following the enactment of this legislation producers must establish a PRO.

The PRO shall submit a plan within 6 months of the promulgation of related regulations by the department.

Within thirty (30) days of approval of the plan, no producer, distributor, retailer, or other responsible party for a covered material shall sell, offer for sale, use, or distribute any covered material to any person in the commonwealth if the producer of such materials is not in compliance.

The department shall review the PRO's plan and approve or deny the plan within 90 days of receipt.

The department shall administer and enforce this section and shall promulgate regulations as necessary to implement, administer and enforce this section. All regulations developed under this section shall be promulgated no later than six months after the passage of this act.

The Sustainable Packaging Trust is established and under control of the department for the purpose of collecting funds for department administration of the packaging and paper products
program or an alternative collection program, and for collecting fines related to the packaging and paper products program or an alternative collection program.

The PRO shall submit an annual report to the department on a regular schedule determined by the department for the preceding calendar year the program was in operation.

Any producer or collector that violates this section shall be subject to a fine for each violation and for each day that the violation occurs in an amount of not more than $200,000.

Education and outreach efforts shall provide recycling instructions that are, to the extent practicable, consistent statewide, easy to understand, easily accessible, and in compliance with the annually published list of readily recyclable materials.

Education and outreach efforts shall promote the proper end-of-life management of covered materials.

Education and outreach efforts shall provide information on how to prevent litter of covered materials.

The PRO must include how it intends to solicit and consider input from the advisory committee in its plan.

No later than three (3) months from enactment, the department shall establish an advisory committee that represents a range of interested and engaged persons, 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 one individual each representing producers, retailers, waste haulers, material recovery facility operators, municipalities, environmental and community organizations, freshwater and marine litter programs, reuse organizations, regional end-of-life management of covered materials, and environmental and human health scientists.

Each individual serving on the advisory committee may represent only one (1) member of each category and the organization 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.

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 material or discarded product component materials.

A producer or producer responsibility organization, including a producer's or organization's officers, members, employees and agents that organize a packaging and paper product program or an alternative collection program is immune from liability for the producer's or organization’s conduct under state laws relating to antitrust, restraint of trade, unfair trade practices and other regulation of trade or commerce only to the extent necessary to plan and implement the producer's or organization’s packaging and paper product program or alternative collection program.

Beginning one (1) year after passage, the department shall establish a toxic substances list, and may reference existing toxic or hazardous substances lists created by other state agencies and the Interstate Chemicals Clearinghouse. Any person may petition the department to add a chemical or chemical class substance to the list based on scientific evidence. The department shall review and update the list of toxic substances at least every three years.

The PRO shall conduct a needs assessment within 6 months of contract award. Subsequent needs assessments shall be conducted every five years by the organization in consultation with the committee.

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.

The department shall coordinate with the producer responsibility organization to establish categories of covered materials. The covered material categories shall group covered materials that have similar properties such as chemical composition, shape, or other characteristics, including, but not limited to: rigid or flexible plastics made of polyethylene terephthalate (PET), polyethylene (PE), polyvinyl chloride (PVC), polypropylene (PP), polystyrene (PS), poly coated fiber, multi-layered material, other (BPA, Compostable Plastics, polycarbonate and LEXAN); metal, such as aluminum, tin, and steel; paper; cartons; and glass. 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 plan must include a description of how the PRO intends to fund representative third-party, independent audits of both inbound and outbound recyclable material generated in the commonwealth that is processed and sold by facilities; waste characterizations of municipal solid waste being disposed of in the commonwealth; and litter audits. The audits must be conducted at least annually.