2012 -- S 2027

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LC00031

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCER RESPONSIBILITY FOR

DISCARDED PRODUCTS

     Introduced By: Senator William A. Walaska

     Date Introduced: January 11, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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

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amended by adding thereto the following chapter:

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     CHAPTER 86

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AN ACT TO PROVIDE LEADERSHIP REGARDING THE RESPONSIBLE RECYCLING,

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REUSE AND DISPOSAL OF CONSUMER PRODUCTS

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     23-86-1. Purpose. -- The purposes of this chapter are:

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

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for certain categories of discarded products in Rhode Island;

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

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

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

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environmentally sound manner;

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

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products;

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

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recycle products as discarded by residents;

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

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landfill and other forms of disposal; and

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

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recyclable.

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     23-86-2. Legislative. – The general assembly hereby finds and declares:

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

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

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

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

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incurred by Rhode Island’s cities and towns for the management of discarded products;

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

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

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recyclable and less toxic and that result in less greenhouse gas emissions; and

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

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

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

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management of discarded products.

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     23-86-3. Definitions. – As used in this chapter the following words shall, unless the

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context clearly requires otherwise, have the following meanings:

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     (1) “Architectural paint” means interior and exterior architectural coatings sold in

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containers of five (5) gallons or less. “Architectural paint” does not mean industrial, original

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equipment or specialty coatings.

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

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

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

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chapter.

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

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     (5) "Director" means the Director of the Rhode Island department of environmental

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management or his or her designee.

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     (6) “Discarded product” means a product no longer wanted by its owner that is discarded

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or is intended to be discarded.

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     (7) “Disposition rate” means a quantitative measure that establish on an annual basis the

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

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

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product stewardship program.

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

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adopted pursuant to section 23-86-10 that are implemented by a producer or a stewardship

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

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

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

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

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     (9) “Historical product” means any product that is not currently marketed or sold by the

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producer.

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

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

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

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      (11) “Medical sharps” means objects including, but not limited to, hypodermic needles,

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syringes with or without the attached needle, and other devices that are used to penetrate the skin

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for the delivery of medications. It shall include sharps that have been used in animal or human

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patient care or treatment. Unused, discarded medicals sharps as described herein are considered

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medical sharps with the exception of unused medical sharps in their original sealed packaging.

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

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

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management cannot identify a producer.

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     (13) “Performance goal” means a metric established by a producer or the Department of

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

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

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health impacts related to a product.

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

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

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

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or any interstate body.

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     (15) “Producer” means a person:

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

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

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

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

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

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

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into Rhode Island for sale or distribution.

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     (16) “Product” means:

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     (i) A single item or group of similar items specified in sections 23-86-5 or 23-86-6; and

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     (ii) Historical products and orphan products of the same type as the items described in

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paragraph (a) of this subsection.

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

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

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

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

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

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group of producers.

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

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

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

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product.

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     (20) “Recycling” means: (i) Any process by which discarded products, components and

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

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original products may lose their identity; and (ii) Does not include energy recovery or energy

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

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without other waste products.

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

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

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Internet.

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

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

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

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

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electronic means, but excluding lease arrangements.

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

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stewardship programs established and managed by producers or stewardship organizations that

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are overseen by the department of environmental management.

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

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

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administer a product stewardship program.

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     23-86-4. Rulemaking. -- The department may adopt rules as necessary to implement the

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provisions of this chapter.

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     23-86-5. Product stewardship rulemaking for architectural paint, mattresses and

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medical sharps. -- The department shall develop and implement a statewide product stewardship

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system for the following products:

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     (1) Architectural paint;

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     (2) Mattresses; and

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     (3) Medical sharps.

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

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

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

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

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

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

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stewardship system.

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     23-86-6 Product stewardship programs for additional products. -- (a) Every two (2)

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years, after consultation with the advisory committee established pursuant to this section, and

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after the implementation of statewide product stewardship systems for the products listed in

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section 23-86-5, the department may identify a list of additional potential products that may be

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appropriate for a product stewardship program. The department shall hold at least one public

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meeting where interested persons can provide comment regarding the listing of potential

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products. The department is allowed to solicit recommendations for potential products from the

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public.

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     (b) Upon review of any public comment and any relevant information and after

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consultation with the advisory committee, the department may select from the list developed

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pursuant to section 23-86-4 of this section products for further evaluation. The department may

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consider whether a product’s packaging should be included in this evaluation. These products

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shall be evaluated based on the factors in section 23-86-3.

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     (c) In evaluating a product, the department shall consider the following factors:

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     (1) Potential to reduce waste, toxicity, greenhouse gas emissions or other environmental

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or health impacts;

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     (2) Potential to encourage product design or manufacture that reduces environmental or

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health impacts;

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     (3) Current or potential contribution of the product to the weight, volume or toxicity of

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the solid waste stream;

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     (4) Public demand or need for improved recycling, reuse or disposal opportunities;

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     (5) Producer ability to manage the product through a product stewardship program;

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     (6) Fiscal impacts to local governments, producers, retailers, consumers and other

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affected parties of using a product stewardship program to address the management of a product

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after the product is discarded; and

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

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stewardship program.

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     (d) Based on the evaluation provided in sections 23-86-2 and 23-86-3, after consultation

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with the advisory committee, the department may determine products to be covered under the

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product stewardship program. Prior to making this determination, the department shall hold at

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least one public meeting and post recommendations on its website for thirty (30) days to allow for

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public comment.

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     (e) The department may not add more than two (2) products in a two (2) year period

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unless it determines that:

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     (1) The threat to the environment or public health warrants the recommendation of

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additional products; or

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     (2) The products are of a similar class or type.

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     (f)(1) Prior to undertaking the process described in this section, the department shall

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appoint and convene a standing advisory committee to provide technical information and advice

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regarding the identification, evaluation and recommendation of products. The committee shall

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

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following groups:

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     (i) Producers;

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     (ii) Local governments;

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     (iii) Environmental groups;

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     (iv) The solid waste or recycling industry; and

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     (v) The retail industry.

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

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

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     (g) The department shall complete a systematic evaluation to comprehensively assess the

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desirability and practicality of further developing a product stewardship program for

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pharmaceuticals and packaging. Such systematic evaluation shall be made in writing and in

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conjunction with the standing advisory committee as created in subsection 23-86-6(a).

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     (h) The products approved by the department identified herein are covered by the

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provisions of sections 1 to 18 of this chapter.

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     23-86-7. Adoption of product specific rules. - (a) The department shall adopt product-

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specific rules to address the implementation of product stewardship programs for the products

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specified in section 23-86-8 of this chapter.

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

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

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

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groups:

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     (i) Producers;

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     (ii) Local governments;

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     (iii) Environmental groups;

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     (iv) The solid waste or recycling industry;

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     (v) The retail industry; and

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     (vi) Consumers or covered entities.

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

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

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

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address the following:

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     (1) Definition of covered entities;

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     (2) Environmentally sound management practices;

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     (3) Performance goals and product goals as provided in section 23-86-14;

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

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product;

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     (5) Implementation date for the product stewardship program;

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     (6) Department’s administrative fees; and

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

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product stewardship program.

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

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section 23-86-6, allow for the implementation of a voluntary product stewardship program for

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certain products in lieu of the adoption and implementation of product specific rules if a producer

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

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

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

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opportunities;

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

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

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

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

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

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

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

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the implementation of a voluntary product stewardship program.

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     23-86-8. Responsibilities of producers. -- (a) Producers of products specified in sections

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23-86-5 and 23-86-6 for which rules are adopted pursuant to section 23-86-7 shall establish

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product stewardship programs for the products. Every producer shall:

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

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stewardship program; or

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

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producer’s behalf, a product stewardship program; and

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

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RI resource recovery corporation to implement a product stewardship program.

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

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

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

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

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

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of products set forth in the product stewardship plan required by section 23-86-9.

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

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

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

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financial assurances for operation of the product stewardship programs.

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

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

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

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products.

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

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

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

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stewardship plan.

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

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

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     (2) Sections 1 to 18 of this chapter and any applicable rules adopted pursuant to sections

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1 to 18 of this chapter.

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

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

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

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     23-86-9. Requirement for product stewardship plan. -- (a) Producers shall submit a

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product stewardship plan to the department that addresses the following:

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

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     (i) Contact information for producers;

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

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

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program; and

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

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program and product stewardship plan.

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

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

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and

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

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

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

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entities in urban and rural areas statewide;

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

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transportation, recycling, reuse and disposal of discarded products.

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

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     (i) How the collected products will be recycled, reused or, where required by the product-

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specific rules, properly disposed of; and

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

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

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

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

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and capital costs; and

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

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transportation, recycling, reuse or disposal operations.

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

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

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

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parties.

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

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

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stewardship plan prior to submission; and

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

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implementation and operation of the product stewardship program.

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

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

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shall approve the product stewardship plan.

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

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

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organization.

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

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approved product stewardship plans and product stewardship programs, updated by the first day

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of each month.

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     23-86-10. Submission and Review of Product Stewardship Plan. - (a) All product

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

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

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

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

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

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additional information regarding the plan.

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

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

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

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

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otherwise determined by a schedule established by the department.

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

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

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     23-86-11. Requirement for Selling Products Covered Under Product Stewardship

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

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

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

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program.

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

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

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

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stewardship program.

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

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or offering a product for sale shall provide the consumer with information on where and how to

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recycle or dispose of the product through a product stewardship program.

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     23-86-12. Requirement for Submittal of Reports. - (a) A producer shall annually

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

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

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rules.

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

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verify any reported accomplishments under the program.

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     23-86-13. Annual Performance Goals. - (a)(1) A producer shall establish annual

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

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

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operation, provided that the goals include the following:

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

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     (ii) Collection rate; and

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     (iii) Disposition rate.

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

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performance goals in the product-specific rule.

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

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

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

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

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

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

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program even after an enforceable annual performance goal is achieved.

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

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

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

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

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

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goal.

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     23-86-14. Establishment of Fees. - The department may establish a schedule of fees to

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

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

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

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

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pursuant to 23-19.1-23.

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     23-86-15. Proper Disposal of Products. - No person shall knowingly dispose of any

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

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with a plan submitted and approved by the department.

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     23-86-16. Enforcement. - The director is authorized to exercise all powers, direct and

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

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

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

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     23-86-17. Violations. - A violation of any of the provisions of this law or any rule or

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

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

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

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($5,000) for each violation.

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     23-86-18. Reporting by the department. - The department shall annually, not later than

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

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

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collectors, processors, producers and retailers; (2) Recommendations to the general assembly and

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the governor regarding proposed changes to this chapter, or any other chapter of the general laws,

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or any regulations promulgated pursuant thereto; and (3) Any other information the department

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deems appropriate. The report shall be submitted to the governor, the president of the senate, the

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speaker of the house, and the house and senate chairs of the committees on the environment.

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     23-86-19. Evaluation of Federal Requirements. - The department shall evaluate any

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federal law that establishes a national program to manage any products specified in sections 5 and

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6 of this chapter through a product stewardship approach. If the department determines that the

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federal law substantially meets or exceeds the requirements and intent of sections 1 to 18 of this

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

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     23-86-20. Requirement to Adopt Rules. - The department may adopt rules before the

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

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provisions of this chapter.

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     23-86-21. Implementation. - No later than December 31, 2012, the department shall

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

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chapter.

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     23-86-22. Multistate Implementation. - The department may participate in the

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

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requirements of this chapter.

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     SECTION 2. This act shall take effect upon passage.

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LC00031

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCER RESPONSIBILITY FOR

DISCARDED PRODUCTS

***

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     This act would provide leadership regarding the responsible recycling, reuse and disposal

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of consumer products.

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     This act would take effect upon passage.

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LC00031

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