2012 -- H 7991

=======

LC02285

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCERS RESPONSIBILITY FOR

DISCARDED PRODUCTS

     

     

     Introduced By: Representatives Handy, Carnevale, Walsh, Tanzi, and Valencia

     Date Introduced: March 27, 2012

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

1-2

amended by adding thereto the following chapter:

1-3

     CHAPTER 87

1-4

     RESPONSIBLE RECYCLING, REUSE AND DISPOSAL OF MATTRESSES

1-5

     23-87-1. Purpose. – The purposes of this chapter are:

1-6

     (1) To establish a manufacturer financed system for the collection, recycling, and reuse

1-7

for discarded mattresses in Rhode Island.

1-8

     (2) To develop a comprehensive strategy, with the participation of state agencies,

1-9

producers, retailers, and consumers for waste prevention and reduction of discarded mattresses in

1-10

the state, which addresses the collection, recycling and reuse of mattresses in a safe and

1-11

environmentally sound manner;

1-12

     (3) To promote the development of infrastructure for the reuse and recycling of discarded

1-13

mattresses;

1-14

     (4) To minimize costs incurred by Rhode Island municipalities to collect, dispose of, or

1-15

recycle mattresses discarded by residents;

1-16

     (5) To eliminate waste generated in the state from disposal of discarded mattresses from

1-17

landfill and other forms of disposal; and

1-18

     (6) To encourage the design of products that are less toxic, more durable and more

1-19

recyclable.

2-1

     23-87-2. Findings. – The general assembly hereby finds and declares that:

2-2

     (1) It is in the best interest of this state for providers of mattresses sold in Rhode Island to

2-3

take responsibility for reducing the environmental and health impacts of a mattress over its life

2-4

cycle, from design to management after the end of a mattress’s useful life;

2-5

     (2) It is in the best interest of this state to determine a process for minimizing costs

2-6

incurred by Rhode Island’s cities and towns for the management of discarded mattresses.

2-7

     (3) It is in the best interest of this state to institute a mattress stewardship system to

2-8

encourage the design and manufacture of mattresses that are more resource-efficient, more

2-9

recyclable and less toxic; and

2-10

     (4) It is in the best interest of this state for producers to finance and manage programs

2-11

within a statewide product stewardship system that serves urban and rural areas in Rhode Island

2-12

and provides free, convenient opportunities for the collection, transportation, recovery and safe

2-13

management of discarded products.

2-14

     23-87-3. Definitions. – As used in this chapter, the following words shall, unless the

2-15

context clearly requires otherwise, have the following meanings:

2-16

     (1) “Brand” means a name, symbol, word or mark that identifies a product and attributes

2-17

the product to the owner of the brand as the producer.

2-18

     (2) “Covered entity” means any person with a discarded product as set forth in this

2-19

chapter.

2-20

     (3) “Department” means the Rhode Island department of environmental management.

2-21

     (4) “Director” means the director of the Rhode Island department of environmental

2-22

management or his or her designee.

2-23

     (5) “Discarded mattress” means a mattress no longer wanted by its owner that is

2-24

discarded or is intended to be discarded.

2-25

     (6) “Disposition rate” means a quantitative measure that establishes on an annual basis

2-26

the percentage of discarded mattresses that are recycled, reused or properly disposed of, including

2-27

energy recovery, relative to the total amount collected or total amount collected per capita in a

2-28

product stewardship program.

2-29

     (7) “Environmentally sound management practices” means policies as defined by rules

2-30

adopted pursuant to section 23-87-10 that are implemented by a producer or a stewardship

2-31

organization to ensure compliance with applicable laws and that address issues such as adequate

2-32

record keeping, tracking and documenting the fate of materials within this state and beyond, on-

2-33

site operations, security of facilities and materials, worker health and safety requirements,

2-34

environmental protection, closure plans, adequate insurance and financial assurances.

3-1

     (8) “Mattress” means a large thick pad filled with resilient material and often

3-2

incorporating coiled springs, used as a bed or part of a bed and includes standard innerspring

3-3

mattresses, foam mattresses, box springs and mattresses used in conjunction with futon frames.

3-4

     (9) “Orphan product” means a product that lacks a brand, for which the producer is no

3-5

longer in business and has no successor in interest or for which the department of environmental

3-6

management cannot identify a producer.

3-7

     (10) “Performance goal” means a metric established by a producer or the department of

3-8

environmental management to measure, on an annual basis, the performance of a product

3-9

stewardship program in addressing recycling, reuse, safe disposal, environmental impacts or

3-10

health impacts related to a product.

3-11

     (11) “Person” means an individual, trust, firm, joint stock company, corporation

3-12

(including a government corporation), partnership, association, the federal government or any

3-13

agency or subdivision thereof, a state, municipality, commission, political subdivision of a state,

3-14

or any interstate body.

3-15

     (12) “Producer” means a person:

3-16

     (i) Who manufactures a mattress and who sells, offers for sale or distributes that product

3-17

in Rhode Island under the manufacturer’s own name or brand;

3-18

     (ii) If paragraph (i) of this subsection does not apply, who is not the manufacturer of the

3-19

mattress, but is the owner or licensee of a trademark or brand under which a mattress is sold or

3-20

distributed in Rhode Island, whether or not the trademark is registered; or

3-21

     (iii) If paragraphs (i) and (ii) of this subsection do not apply, who imports the product

3-22

into Rhode Island for sale or distribution.

3-23

     (13) “Product” means mattresses as defined in subdivision (8) of this section.

3-24

     (14) “Product goal” means any change in the design and manufacture of a mattress that

3-25

reduces or has the potential to reduce environmental or health impacts.

3-26

     (15) “Product stewardship plan” means a statewide plan that describes a program for the

3-27

collection, transportation, recycling, reuse and disposal of discarded mattresses and any related

3-28

performance goals and product goals and that is developed and provided for by a producer or

3-29

group of producers.

3-30

     (16) “Product stewardship program” means a statewide program financed and managed

3-31

by a producer or group of producers that is based on an approved product stewardship plan and

3-32

that addresses the environmental or health impacts of a product over the entire life cycle of that

3-33

product.

4-34

     (17) “Recycling” means any process by which discarded products, components and

4-35

byproducts are transformed into new, usable or marketable materials in a manner in which the

4-36

original products may lose their identity but does not include energy recovery or energy

4-37

generation by means of combusting discarded products, components and by-products with or

4-38

without other waste products.

4-39

     (18) “Retailer” means any person that offers new products for sale at retail through any

4-40

means, including, but not limited to, remote offerings such as sales outlets, catalogs or the

4-41

Internet.

4-42

      (19) “Reuse” means the return of a product into the economic stream for use in the same

4-43

kind of application as originally intended, without a change in the product’s form or function.

4-44

     (20) “Sell” or “sale” means any transfer of title for consideration, including, but not

4-45

limited to, remote sales conducted through sales outlets, catalogs or the Internet or any similar

4-46

electronic means, but excluding lease arrangements.

4-47

     (21) “Statewide product stewardship system” means the statewide system of product

4-48

stewardship programs established and managed by producers or stewardship organizations that

4-49

are overseen by the department of environmental management.

4-50

     (22) “Stewardship organization” means a corporation, nonprofit or other legal entity

4-51

appointed by a producer or group of producers to act as an agent on behalf of the producer to

4-52

administer a product stewardship program.

4-53

     23-87-4. Rulemaking. -- The department may adopt rules as necessary to implement the

4-54

provisions of this chapter.

4-55

     23-87-5. Product stewardship rulemaking for mattresses. – (a) The department shall

4-56

develop and implement a statewide product stewardship system for mattresses:

4-57

      (b) In developing and implementing the statewide product stewardship system under this

4-58

section, the department shall collaborate to the extent practicable with the federal government,

4-59

other states, state agencies, local governments, producers, stewardship organizations, the retail

4-60

industry, nonprofits, the solid waste industry, environmental groups and covered entities.

4-61

     (c) To the extent practicable, the department shall consult and coordinate with other states

4-62

to achieve consistency in the development and implementation of the statewide product

4-63

stewardship system.

4-64

     23-87-6. Adoption of product specific rules. - (a) The department shall adopt product-

4-65

specific rules to address the implementation of product stewardship programs for mattresses.

4-66

     (b)(1) Prior to adopting product-specific rules, the department shall appoint an advisory

4-67

committee to advise on the development of product-specific rules. The committee shall have at

4-68

least nine (9) members and, at a minimum, one member shall represent each of the following

5-1

groups:

5-2

     (i) Producers;

5-3

     (ii) Local governments;

5-4

     (iii) Environmental groups;

5-5

     (iv) The solid waste or recycling industry;

5-6

     (v) The retail industry; and

5-7

     (vi) Consumers or covered entities.

5-8

     (2) To encourage coordination with other states, the department may invite

5-9

representatives from other states to participate in the committee proceedings as nonmembers.

5-10

     (c) Any product-specific rules developed and adopted pursuant to this section shall

5-11

address the following:

5-12

     (1) Definition of covered entities;

5-13

     (2) Environmentally sound management practices;

5-14

     (3) Performance goals and product goals as provided in section 23-87-14;

5-15

     (4) The necessity for a disposal ban as determined by the specific characteristics of the

5-16

product;

5-17

     (5) Implementation date for the product stewardship program;

5-18

     (6) Department’s administrative fees; and

5-19

     (7) Any other requirement directly relevant to the management of a product under a

5-20

product stewardship program.

5-21

     (d) The department may, after consultation with the advisory committee established in

5-22

section 23-87-6, allow for the implementation of a voluntary product stewardship program for

5-23

mattresses in lieu of the adoption and implementation of product specific rules if a producer or

5-24

group of producers is able to demonstrate the following, in writing, to the department:

5-25

     (1) Its ability to meet aggressive collection and recycling goals;

5-26

     (2) Its ability to provide broad coverage and availability of collection and recycling

5-27

opportunities;

5-28

     (3) Its ability to provide for aggressive education and marketing of the program;

5-29

     (4) Its ability to undertake comprehensive reporting on the success of the program;

5-30

     (5) Its ability to succeed based upon past performance;

5-31

     (6) Its ability to provide collection and recycling opportunities in a manner that will be as

5-32

effective as a program operating under product specific rules promulgated by the department; and

5-33

     (7) Its ability to identify a single point-of-contact.

6-34

     The department shall explain, in writing, the reasons for its decision to allow or not allow

6-35

the implementation of a voluntary product stewardship program.

6-36

     23-87-7. Responsibilities of producers. -- (a) Producers of products specified in section

6-37

23-87-5 for which rules are adopted pursuant to section 23-87-6, shall establish product

6-38

stewardship programs for the products. Every producer shall:

6-39

     (1) Operate, either individually or collectively with other producers, a product

6-40

stewardship program; or

6-41

     (2) Enter into an agreement with one or more stewardship organizations to operate, on the

6-42

producer’s behalf, a product stewardship program; and

6-43

     (3) Work cooperatively with the department, retailers, consumers, municipalities and the

6-44

Rhode Island resource recovery corporation to implement a product stewardship program.

6-45

     (b) Product stewardship programs shall be provided free of charge to covered entities

6-46

when a product is sold or when the discarded products are delivered or collected for reuse,

6-47

recycling or disposal throughout the calendar year. All discarded products collected for a program

6-48

shall be reused or recycled unless the applicable product-specific rule provides that such products

6-49

must be properly disposed of. A program shall meet or exceed the requirements for the collection

6-50

of products set forth in the product stewardship plan required by section 23-87-9.

6-51

     (c) Producers shall pay administrative, operational and capital costs associated with the

6-52

product stewardship programs, including costs of collection, transportation, recycling, reuse and

6-53

disposal of the products and their components. Producers shall provide adequate insurance and

6-54

financial assurances for operation of the product stewardship programs.

6-55

     (d) Product stewardship programs shall meet or exceed the environmentally sound

6-56

management practices provided in the applicable product-specific rules as well as any other

6-57

applicable federal, state or local requirements regarding the management of the collected

6-58

products.

6-59

     (e) A producer may not sell or offer for sale in Rhode Island any mattress unless the

6-60

mattress or, where appropriate, the mattress package or container, is labeled with a brand that is

6-61

permanently affixed and readily visible and the brand is included in an approved product

6-62

stewardship plan.

6-63

     (f) All product stewardship programs shall operate in accordance with:

6-64

     (1) The product stewardship plan as approved by the department; and

6-65

     (2) Sections 23-87-1 through 23-87-18 of this chapter and any applicable rules adopted

6-66

pursuant to sections 23-87-1 through 23-87-18 of this chapter.

6-67

     (g) Product stewardship programs shall include an education and outreach component to

6-68

promote the use of the program and to inform covered entities of available collection options.

7-1

This information shall be provided to covered entities, retailers and other interested parties.

7-2

     23-87-8. Requirement for product stewardship plan. -- (a) Producers shall submit a

7-3

product stewardship plan to the department that addresses the following:

7-4

     (1) Information about participating producers, including, but not limited to:

7-5

     (i) Contact information for producers;

7-6

     (ii) Contact information for the individual or entity submitting the plan;

7-7

     (iii) A description of any stewardship organization that operates the product stewardship

7-8

program; and

7-9

     (iv) Producers’ mattresses and associated brands covered by the product stewardship

7-10

program and product stewardship plan;

7-11

     (2) Information on performance goals and product goals, including, but not limited to:

7-12

     (i) A detailed description of annual performance goals and, if applicable, product goals;

7-13

and

7-14

     (ii) Compliance with annual performance goals and, if applicable, product goals;

7-15

     (3) Collection system information, including but not limited to, how the product

7-16

stewardship program will be available, convenient, accessible and free of charge for all covered

7-17

entities in urban and rural areas statewide;

7-18

     (4) Implementation of environmentally sound management practices for the collection,

7-19

transportation, recycling, reuse and disposal of discarded mattresses;

7-20

     (5) Management of collected products, including, but not limited to:

7-21

     (i) How the collected mattresses will be recycled, reused or, where required by the

7-22

product-specific rules, properly disposed of; and

7-23

     (ii) How all residuals that cannot be recycled or reused will be properly managed;

7-24

     (6) Financial information, including, but not limited to:

7-25

     (i) How the product stewardship program will be financed;

7-26

     (ii) The mechanism for securing and disbursing funds to cover administrative, operational

7-27

and capital costs; and

7-28

     (iii) Demonstration of adequate insurance and financial assurances for collection,

7-29

transportation, recycling, reuse or disposal operations;

7-30

     (7) Outreach and education to covered entities including, but not limited to:

7-31

     (i) How to use and access the product stewardship program; and

7-32

     (ii) How this information will be provided to collectors, retailers and other interested

7-33

parties;

8-34

     (8) Public and stakeholder consultation, including but not limited to:

8-35

     (i) Opportunities for the public and other stakeholders to comment on the product

8-36

stewardship plan prior to submission; and

8-37

     (ii) Opportunities for the public and other stakeholders to comment on the

8-38

implementation and operation of the product stewardship program.

8-39

     (b) If the department determines that a proposed product stewardship plan complies with

8-40

the provisions of this chapter and any applicable rules and is in the public interest, the department

8-41

shall approve the product stewardship plan.

8-42

     (c) All product stewardship plans submitted and approved by the department shall be

8-43

available to the general public through the website of the producer or the stewardship

8-44

organization.

8-45

     (d) The department shall maintain a website listing of producers and brands of mattresses

8-46

covered by approved product stewardship plans and product stewardship programs, updated by

8-47

the first day of each month.

8-48

     23-87-9. Submission and review of product stewardship plan. - (a) All product

8-49

stewardship plans shall be submitted to the department no later than one hundred twenty (120)

8-50

days following the adoption of the applicable product-specific rules, or no later than one hundred

8-51

twenty (120) days prior to the sale or offer for sale of a product in Rhode Island.

8-52

     (b) The department shall approve, approve with conditions, or reject the product

8-53

stewardship plan within sixty (60) days of receiving the plan unless the department requests

8-54

additional information regarding the plan.

8-55

     (c) If a product stewardship plan is rejected and the producer wishes to submit a revised

8-56

plan, the producer must do so within sixty (60) days of the date of the notice of rejection.

8-57

     (d) Product stewardship plans shall be updated and submitted to the department for

8-58

review at least once every four (4) years from the date on which the plan is first approved or as

8-59

otherwise determined by a schedule established by the department.

8-60

     (e) If a producer joins an approved product stewardship plan, the producer shall notify the

8-61

department prior to selling or offering for sale any products in Rhode Island.

8-62

     23-87-10. Requirement for selling mattresses covered under product stewardship

8-63

plans. - (a) As of the implementation date established by the applicable product specific rule, a

8-64

producer, retailer or other person may not sell the mattress or offer the mattress for sale to any

8-65

person in this state unless the producer is participating in an approved product stewardship

8-66

program.

8-67

     (b) A retailer or other person complies with the requirements of this section if, on the date

8-68

the mattress is ordered from the producer or its agent, the website of the department lists the

9-1

producer, along with the mattress brand, as operating or participating in an approved product

9-2

stewardship program.

9-3

     (c) At the time of sale to a consumer, a producer, retailer or other person selling a

9-4

mattress or offering a mattress for sale shall provide the consumer with information on where and

9-5

how to recycle or dispose of the mattress through a product stewardship program.

9-6

     23-87-11. Requirement for submittal of reports. - (a) A producer shall annually

9-7

prepare and submit to the department a written report that describes how the product stewardship

9-8

program was implemented in accordance with the provisions of this chapter and all applicable

9-9

rules.

9-10

     (b) The department may request that additional information be submitted in order to

9-11

verify any reported accomplishments under the program.

9-12

     23-87-12. Annual performance goals. - (a)(1) A producer shall establish annual

9-13

performance goals for discarded products collected in a product stewardship program. A producer

9-14

shall establish reasonable annual performance goals for the first two (2) years of the program’s

9-15

operation, provided that the goals include the following:

9-16

     (i) Total amount collected or total amount collected per capita;

9-17

     (ii) Collection rate; and

9-18

     (iii) Disposition rate.

9-19

     (2) The department shall establish the appropriate metric to use in measuring annual

9-20

performance goals in the product-specific rule.

9-21

     (b) Failure to meet annual performance goals established by a producer for the first two

9-22

(2) years of the operation of the product stewardship program shall not be subject to enforcement

9-23

by the department. However, a producer shall establish, measure and report on the annual

9-24

performance goal. By the third (3rd) year of the operation of the product stewardship program for

9-25

a product, the department shall establish an enforceable, annual performance goal. A producer

9-26

shall meet or exceed this goal. Producers shall continue to fully implement a product stewardship

9-27

program even after an enforceable annual performance goal is achieved.

9-28

     (c) A producer may establish product goals for mattresses covered by a product

9-29

stewardship program. These goals shall be specific to the product and intended to achieve

9-30

changes that result in a reduction in environmental or health impacts. The department shall

9-31

consider and make appropriate adjustments for any product goal adopted and successfully

9-32

implemented that affects the ability of a producer to meet an enforceable annual performance

9-33

goal.

10-34

     23-87-13. Establishment of Fees. - The department may establish a schedule of fees to

10-35

be paid by producers. Fees may be established in amounts to recover, but not exceed, costs

10-36

incurred by the department in providing plan review, approval, program development, oversight

10-37

and compliance for the products for which a producer is responsible. Fees collected by the

10-38

department under this section shall be deposited in the environmental response fund established

10-39

pursuant to section 23-19.1-23.

10-40

     23-87-14. Proper disposal of products. - No person shall knowingly dispose of any

10-41

mattress specified in this chapter except to handle, recycle or compost the material in accordance

10-42

with a plan submitted and approved by the department.

10-43

     23-87-15. Enforcement. - The director is authorized to exercise all powers, direct and

10-44

incidental, necessary to carry out the purposes of this chapter. The director may institute

10-45

administrative or civil proceedings, or may request the attorney general to do the same, to enforce

10-46

any provision of this chapter or any rule, regulation or order issued pursuant to this chapter.

10-47

     23-87-16. Violations. - A violation of any of the provisions of this law or any rule or

10-48

regulation promulgated pursuant thereto shall be punishable, in the case of a first (1st) violation,

10-49

by a civil penalty not to exceed one thousand dollars ($1,000). In the case of a second (2nd) and

10-50

any further violation, the liability shall be for a civil penalty not to exceed five thousand dollars

10-51

($5,000) for each violation.

10-52

     23-87-17. Reporting by the department. - The department shall annually, not later than

10-53

December 31, submit an annual report of its activities pursuant to this chapter. The report shall

10-54

include:

10-55

     (1) An update on the implementation of this chapter and current state of compliance by

10-56

collectors, processors, producers and retailers;

10-57

     (2) Recommendations to the general assembly and the governor regarding proposed

10-58

changes to this chapter, or any other chapter of the general laws, or any regulations promulgated

10-59

pursuant thereto; and

10-60

     (3) Any other information the department deems appropriate. The report shall be

10-61

submitted to the governor, the president of the senate, the speaker of the house, and the house and

10-62

senate chairs of the committees on the environment.

10-63

     23-87-18. Evaluation of Federal Requirements. - The department shall evaluate any

10-64

federal law that establishes a national program to manage any products specified in this chapter

10-65

through a product stewardship approach. If the department determines that the federal law

10-66

substantially meets or exceeds the requirements and intent of sections 1 to 18 of this chapter, the

10-67

department shall include information on the federal law in the next annual report.

11-68

     23-87-19. Requirement to Adopt Rules. - The department may adopt rules before the

11-69

operative date specified or take any action before that date that is necessary to carry out the

11-70

provisions of this chapter.

11-71

     23-87-20. Implementation. - No later than December 31, 2012, the department shall

11-72

begin developing and implementing the statewide product stewardship system as described in this

11-73

chapter.

11-74

     23-87-21. Multistate Implementation. - The department may participate in the

11-75

establishment of a regional multistate organization or compact to assist in carrying out the

11-76

requirements of this chapter.

11-77

     23-87-22. Severability. – If any provision of this chapter or any rule or regulation made

11-78

under this chapter, or its application to any person or circumstance is held invalid by a court of

11-79

competent jurisdiction, the remainder of the chapter, rule, or regulation and the application of the

11-80

provision to other persons or circumstances shall not be affected by this invalidity. The invalidity

11-81

of any section or sections or parts of any section or sections shall not affect the validity of the

11-82

remainder of the chapter.

11-83

     SECTION 2. This act shall take effect upon passage.

     

=======

LC02285

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCERS RESPONSIBILITY FOR

DISCARDED PRODUCTS

***

12-1

     This act would provide for the procedure for the responsible recycling, reuse and disposal

12-2

of mattresses.

12-3

     This act would take effect upon passage.

=======

LC02285

=======

H7991