2013 -- S 0261 SUBSTITUTE A

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LC01103/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO HEALTH AND SAFETY

     Introduced By: Senators Ruggerio, Sosnowski, Lombardo, Walaska, and Cool Rumsey

     Date Introduced: February 12, 2013

     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 90

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RESPONSIBLE RECYCLING, REUSE AND DISPOSAL OF MATTRESSES

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     23-90-1. Purpose. – The purposes of this chapter are:

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     (1) To establish a system for the collection, recycling, and reuse for discarded mattresses

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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 mattresses in

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the state, which addresses the collection, recycling and reuse of mattresses 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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mattresses;

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

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recycle mattresses discarded by residents; and

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

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from landfill and other forms of disposal.

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     23-90-2. Findings. – The general assembly hereby finds and declares that:

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

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

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

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     (2) It is in the best interest of this state to reduce illegal dumping of discarded mattresses

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and determine a process for minimizing costs incurred by Rhode Island's cities and towns for the

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management of discarded mattresses; and

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     (3) It is in the best interest of this state for producers to develop a statewide product

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stewardship system that serves urban and rural areas in Rhode Island and provides cost-effective,

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convenient opportunities for the collection, transportation, recovery and safe management of

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discarded products.

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     23-90-3. 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) "Brand" means a name, symbol, word or mark that attributes a mattress to the

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producer of such mattress.

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     (2) "Covered entity" means any political subdivision of the state, any mattress retailer,

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any permitted transfer station, any waste to energy facility, any healthcare facility, any

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educational facility, any correctional facility, any military base, or any commercial or non profit

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lodging establishment that possesses a discarded mattress that was discarded in this state.

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Covered entity does not include any renovator, refurbisher or any person who transports a

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discarded mattress.

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     (3) "Consumer" means an individual who is also a resident of this state.

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     (4) "Corporation" means the Rhode Island Resource Recovery Corporation.

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     (5) "Corporation Director" means the executive director of the Rhode Island Resource

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Recovery Corporation.

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     (6) "Council" or "mattress recycling council" means the state-wide non profit

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organization created by producers or created by any trade association that represents producers

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who account for a majority of mattress production in the United States to design, submit and

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implement the mattress stewardship plan as described in this chapter.

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     (7) "Discarded mattress" means any mattress that a consumer intends to discard, has

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discarded or that is abandoned.

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     (8) "Energy recovery" means the process by which all or a portion of solid waste

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materials are processed or combusted in order to utilize the heat content or other forms of energy

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derived from such solid waste materials.

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     (9) "Foundation" means any ticking-covered structure that is used to support a mattress

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and that is composed of one or more of the following: A constructed frame, foam or a box spring.

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"Foundation" does not include any bed frame or base made of wood, metal or other material that

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rests upon the floor and that serves as a brace for a mattress.

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     (10) "Mattress" means any resilient material or combination of materials that is enclosed

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by ticking, used alone or in combination with other products, and that is intended for or promoted

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for sleeping upon. "Mattress" includes any foundation and any renovation. "Mattress" does not

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include any mattress pad, mattress topper, sleeping bag, pillow, crib mattress, car bed, carriage,

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basket, dressing table, stroller, playpen, infant carrier, lounge pad, crib bumper, liquid and

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gaseous filled ticking including any water bed and air mattress that does not contain upholstery

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material between the ticking and the mattress core, and upholstered furniture that does not

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otherwise contain a detachable mattress.

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     (11) "Mattress core" means the main support system that is present in a mattress,

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including, but not limited to, springs, foam, air bladder, water bladder or resilient filling.

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     (12) "Mattress recycling council" or "council" means the organization created by

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producers to design, submit and implement the mattress stewardship program described in section

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23-88-5.

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     (13) "Mattress stewardship fee" means the amount added to the purchase price of a

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mattress sold in this state that is necessary to cover the cost of collecting, transporting and

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processing discarded mattresses by the council pursuant to the mattress stewardship program.

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     (14) "Mattress stewardship program" or "program" means the state-wide program

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described in section 23-88-5 and implemented pursuant to the mattress stewardship plan as

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approved by the corporation director.

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     (15) "Mattress topper" means any item that contains resilient filling, with or without

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ticking, that is intended to be used with or on top of a mattress.

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     (16) "Performance goal" means a metric proposed by the council, to measure, on an

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annual basis, the performance of the mattress stewardship program, taking into consideration

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technical and economic feasibilities, in achieving continuous, meaningful improvement in

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improving the rate of mattress recycling in the state and any other specified goal of the program.

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     (17) "Producer" means any person who manufactures or renovates a mattress that is sold,

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offered for sale or distributed in the state under the manufacturer's own name or brand.

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"Producer" includes:

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     (i) The owner of a trademark or brand under which a mattress is sold, offered for sale or

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distributed in this state, whether or not such trademark or brand is registered in this state; and

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     (ii) Any person who imports a mattress into the United States that is sold or offered for

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sale in this state and that is manufactured or renovated by a person who does not have a presence

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in the United States;

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     (18) "Recycling" means any process in which discarded mattresses, components and by-

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products may lose their original identity or form as they are transformed into new, usable or

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marketable materials. "Recycling" does not include as a primary process the use of incineration

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for energy recovery or energy generation by means of combustion.

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     (19) "Renovate" or "renovation" means altering a mattress for the purpose of resale and

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includes any one, or a combination of, the following: Replacing the ticking or filling, adding

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additional filling, rebuilding a mattress, or replacing components with new or recycled materials.

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"Renovate" or "renovation" does not include the:

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     (i) Stripping of a mattress of its ticking or filling without adding new material;

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     (ii) Sanitization or sterilization of a mattress without otherwise altering the mattress, or

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     (iii) Altering of a mattress by a renovator when a person retains the altered mattress for

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personal use, in accordance with regulations of the department of business regulation.

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     (20) "Renovator" means a person who renovates discarded mattresses for the purpose of

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reselling such mattresses in a retail store.

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     (21) "Retailer" means any person who sells mattresses in this state or offers mattresses in

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this state to a consumer through any means, including, but not limited to, remote offerings such as

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sales outlets, catalogs or the Internet.

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     (22) "Sanitization" means the direct application of chemicals to a mattress to kill human

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disease-causing pathogens.

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     (23) "Sale" means the transfer of title of a mattress for consideration, including through

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the use of a sales outlet, catalog, internet website or similar electronic means.

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     (24) "Sterilization" means the mitigation of any deleterious substances or organisms

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including human disease-causing pathogens, fungi and insects from a mattress or filling material

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using a process approved by the department of business regulation.

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     (25) "Ticking" means the outermost layer of fabric or material of a mattress. "Ticking"

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does not include any layer of fabric or material quilted together with, or otherwise attached to, the

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outermost layer of fabric or material of a mattress.

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     (26) "Upholstery material" means all material, loose or attached, between the ticking and

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the core of a mattress.

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     (27) "Wholesaler" means any person who sells or distributes mattresses in the state, in a

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nonretail setting, for the purpose of the resale of such mattresses.

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     23-90-4. Mattress stewardship council established. – (a) On or before July 1, 2015,

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each producer shall join the council and such council shall submit a plan, for the corporation

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director's approval, to establish a state-wide mattress stewardship program, as described in this

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section. Any retailer may be a member of such council. Such mattress stewardship program shall,

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to the extent it is technologically feasible and economically practical:

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     (1) Minimize public sector involvement in the management of discarded mattresses;

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     (2) Provide for the convenient and accessible state-wide collection of discarded

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mattresses from any person in the state with a discarded mattress that was discarded in the state,

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including from participating covered entities that accumulated and segregated a minimum of fifty

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(50) discarded mattresses for collection at one time, or a minimum of thirty (30) discarded

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mattresses for collection at one time in the case of participating municipal transfer stations;

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     (3) Provide for council-financed recycling and disposal of discarded mattresses;

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     (4) Provide suitable storage containers at permitted municipal transfer stations, municipal

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government property or other solid waste management facilities for segregated, discarded

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mattresses, or make other mutually agreeable storage and transportation agreements at no cost to

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such municipality provided the municipal transfer station, municipal government property or

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other solid waste management facilities make space available for such purpose and imposes no

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fee for placement of such storage container on its premises;

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     (5) Include a uniform mattress stewardship fee that is sufficient to cover the costs of

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operating and administering the program; and

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     (6) Establish a financial incentive that provides for the payment of a monetary sum,

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established by the council, to promote the recovery of mattresses.

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     (b) The council shall be a nonprofit organization with a fee structure that covers, but does

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not exceed, the costs of developing the plan and operating and administering the program in

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accordance with the requirements of this chapter, and maintaining a financial reserve sufficient to

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operate the program over a multi-year period of time in a fiscally prudent and responsible

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manner. The council shall maintain all records relating to the program for a period of not less than

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three (3) years.

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     (c) Pursuant to the program, recycling shall be preferred over any other disposal method

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to the extent that recycling is technologically feasible and economically practical.

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     (d) The council shall enter into an agreement with the corporation to reimburse for

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reasonable costs directly related to administering the program but not to exceed the cost of two

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(2) full time equivalent employees.

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     23-90-5. Mattress stewardship plan. – (a) On or before July 1, 2015, the mattress

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stewardship council shall submit a mattress stewardship plan for the establishment of a mattress

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stewardship program to the corporation director for approval.

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     (b) The plan submitted pursuant to subsection (a) of this section shall, to the extent it is

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technologically feasible and economically practical:

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     (1) Identify each producer's participation in the program;

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     (2) Describe the fee structure for the program and propose a uniform stewardship fee that

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is sufficient to cover the costs of operating and administering the program;

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     (3) Establish performance goals for the first two (2) years of the program;

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     (4) Identify proposed recycling facilities to be used by the program, such facilities shall

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not require a solid waste management facilities license;

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     (5) Detail how the program will promote the recycling of discarded mattresses;

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     (6) Include a description of the public education program;

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     (7) Describe fee disclosure language that retailers will be required to prominently display

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that will inform consumers of the amount and purpose of the fee; and

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     (8) Identify the methods and procedures to facilitate implementation of the mattress

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stewardship program in coordination with the corporation director and municipalities.

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     (c) Not later than ninety (90) days after submission of the plan pursuant to this section,

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the corporation shall make a determination whether to:

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     (1) Approve the plan as submitted; or

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     (2) Deny the plan.

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     (d) The corporation director shall approve the plan for the establishment of the mattress

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stewardship program, provided such plan reasonably meets the requirements of this section. Prior

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to making such determination, the corporation director shall post the plan for at least thirty (30)

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days in accordance with the "Administrative Procedures Act" as set forth in chapter 42-35 on the

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corporation's website and solicit public comments on the plan, to be posted on the website.

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     (e) In the event that the corporation director denies the plan, the corporation director shall

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provide a notice of determination to the council, within sixty (60) days, detailing the reasons for

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the disapproval. The council shall revise and resubmit the plan to the corporation director not

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later than forty-five (45) days after receipt of notice of the corporation director's denial notice.

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Not later than forty-five (45) days after receipt of the revised plan, the corporation director shall

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review and approve or deny the revised plan. The council may resubmit a revised plan to the

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corporation director for approval on not more than two (2) occasions. If the council fails to

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submit a plan that is acceptable to the corporation director, because it does not meet the criteria

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pursuant to subdivision (b)(1-8), the corporation director shall have the ability to modify the

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submitted plan and approve it. Not later than one hundred twenty (120) days after the approval of

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a plan pursuant to this section, the council shall implement the mattress stewardship program.

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     (f) It is the responsibility of the council to:

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     (1) Notify the corporation director whenever there is a proposed substantial change to the

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program. If the corporation director takes no action on a proposed substantial change within

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ninety (90) days after notification of the proposed change, the proposed change shall be deemed

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approved.

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     For the purposes of this subdivision, "substantial change" shall include, but not be limited

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to:

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     (i) A change in the processing facilities to be used for discarded mattresses collected

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pursuant to the program; or

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     (ii) A material change to the system for collecting mattresses.

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     (2) Not later than October 1, 2017, the council shall submit to the corporation director for

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review updated performance goals that are based on the experience of the program during the first

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two (2) years of the program.

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     (g) The council shall notify the corporation director of any other changes to the program

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on an ongoing basis, whenever they occur, without resubmission of the plan to the corporation

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director for approval. Such changes shall include, but not be limited to, a change in the

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composition, officers or contact information of the council.

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     (h) On or before July 1, 2015, and every two (2) years thereafter, the council shall

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propose a uniform fee for all mattresses sold in this state. The council may propose a change to

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the uniform fee more frequently than once every two (2) years if the council determines such

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change is needed to avoid funding shortfalls or excesses. Any proposed fee shall be reviewed by

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an independent auditor to assure that such assessment does not exceed the costs of the mattress

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stewardship program described in subsection (b) of this section and to maintain financial reserves

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sufficient to operate the program over a multi-year period in a fiscally prudent and responsible

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manner. Not later than sixty (60) days after the council proposes a mattress stewardship fee, the

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auditor shall render an opinion to the corporation director as to whether the proposed mattress

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stewardship fee is reasonable to achieve the goals set forth in this section. If the auditor concludes

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that the mattress stewardship fee is reasonable, then the proposed fee shall go into effect. If the

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auditor concludes that the mattress stewardship fee is not reasonable, the auditor shall provide the

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council with written notice explaining the auditor's opinion. Not later than fourteen (14) days

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after the council's receipt of the auditor's opinion, the council may either propose a new mattress

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stewardship fee or provide written comments on the auditor's opinion. If the auditor concludes

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that the fee is not reasonable, the corporation director shall decide, based on the auditor's opinion

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and any comments provided by the council, whether to approve the proposed mattress

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stewardship fee. Such auditor shall be selected by the council. The cost of any work performed by

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such auditor pursuant to the provisions of the subsection and paragraph (i) of this section shall be

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funded by the council.

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     (i)(A) On and after the implementation of the mattress stewardship program, the fee,

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established pursuant to subsection (b) of this section, and described in subsection (h) of this

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section, shall be added to the cost of all mattresses sold to retailers and distributors in this state by

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each producer. On and after such implementation date, each retailer or distributor, as applicable,

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shall add the amount of such fee to the purchase price of all mattresses sold in this state. The

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council may, subject to the corporation director's approval, establish an alternative, practicable

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means of collecting or remitting such fee.

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     (B) On and after the implementation date of the mattress stewardship program, no

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producer, distributor or retailer shall sell or offer for sale a mattress to any person in the state if

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the producer is not a member of the council.

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     (C) No retailer or distributor shall be found to be in violation of the provisions of this

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section, if, on the date the mattress was ordered from the producer or its agent, the producer of

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said mattress was listed on the corporation's website in accordance with the provisions of this

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chapter.

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     (j) Not later than October 1, 2016 an annually thereafter, the council shall submit an

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annual report to the corporation director. The corporation director shall post such annual report on

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the corporation's website. Such report shall include, but not be limited to: :

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     (1) The weight of mattresses collected pursuant to the program from:

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     (i) Municipal and/or transfer stations;

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     (ii) Retailers; and

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     (iii) All other covered entities;

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     (2) The weight of mattresses diverted for recycling;

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     (3) Identification of the mattress recycling facilities to which mattresses were delivered

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for recycling;

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     (4) The weight of discarded mattresses recycled, as indicated by the weight of each of the

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commodities sold to secondary markets;

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     (5) The weight of mattresses, or parts thereof, sent for disposal at each of the following:

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     (i) Rhode Island resource recovery corporation; and

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     (ii) Any other facilities;

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     (6) Samples of public education materials and methods used to support the program;

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     (7) A description of efforts undertaken and evaluation of the methods used to disseminate

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such materials;

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     (8) Updated performance goals and an evaluation of the effectiveness of the methods and

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processes used to achieve performance goals of the program; and

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     (9) Recommendations for any changes to the program.

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     (k) Two (2) years after the implementation of the program and upon the request of the

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corporation director but not more frequently than once a year, the council shall cause an audit of

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the program to be conducted by the auditor describe in subsection (h) of this section. Such audit

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shall review the accuracy of the council's data concerning the program and provide any other

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information requested by the corporation director. Such audit shall be paid for by the council. The

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council shall maintain all records relating to the program for not less than three (3) years.

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     (l) No covered entity that participates in the program shall charge for receipt of

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mattresses generated in the state. Covered entities may charge a fee for providing the service of

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collecting mattresses and may restrict the acceptance of mattresses by number, source or physical

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condition.

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     (m) Covered entities that, upon the date of this act's passage, have an existing program

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for recycling discarded mattresses may continue to operate such program without coordination of

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the council, so long as the entities are able to demonstrate, in writing, to the corporation director

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that the facilities to which discarded mattresses are delivered are engaged in the business of

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recycling said mattresses and the corporation director approves the written affirmation that the

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facility engages in mattress recycling of mattresses received by the covered entity. A copy of the

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written affirmation and the corporation's approval shall be provided to the council by the

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corporation director in a timely manner.

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     23-90-6. Responsibilities of the Rhode Island resource recovery corporation. – (a)

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The corporation shall review for approval the mattress stewardship plan of the council.

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     (b) The corporation shall maintain on its website information on collection opportunities

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for mattresses, including collection site locations. The information must be made available in a

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printable format for retailers and consumers.

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     (c) Not later than the implementation date of the mattress stewardship program, the

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corporation shall list the names of participating producers covered by the program and the cost of

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the approved mattress stewardship fee on its website.

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     (d) The corporation shall approve the mattress stewardship fee to be applied by the

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council to mattresses pursuant to this chapter.

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     (e) Pursuant to section 23-88-11, the corporation shall report biennially to the general

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assembly on the operation of the statewide system for collection, transportation and recycling of

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mattresses.

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     23-90-7. Regulations. – The corporation is hereby authorized to promulgate additional

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rules and regulations pursuant to the administrative procedures act, chapter 42-35, to implement

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the provisions of this chapter.

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     23-90-8. Immunity. – Each producer, retailer and the council shall be immune from

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liability for any claim of a violation of antitrust law, to the extent such producer or council is

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exercising authority pursuant to the provisions of this chapter, including but not limited to:

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     (1) The creation, implementation or management of a plan pursuant to section 23-88-5 of

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this chapter, and the types or quantities of used mattresses recycled or otherwise managed

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pursuant to a plan;

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     (2) The cost and structure of a plan; and

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     (3) The establishment, administration, collection or disbursement of the mattress

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stewardship fee associated with funding the implementation of the plan.

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     23-90-9. Violations. – A violation of any of the provisions of this chapter or any rule or

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regulation promulgated pursuant to section 23-88-7 shall be punishable by a civil penalty not to

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exceed one thousand dollars ($1,000). In the case of a second and any subsequent violation, the

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civil penalty shall not exceed five thousand dollars ($5,000) for each violation.

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     23-90-10. Collaboration. – In the event that another state implements a mattress

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recycling program, the council may collaborate with such state to conserve efforts and resources

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used in carrying out the mattress stewardship program, provided such collaboration is consistent

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with the requirements of this chapter.

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     23-90-11. Report to the General Assembly. – Not later than three (3) years after the

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approval of the plan pursuant to section 23-88-5 of this chapter, the corporation director shall

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submit a report to the general assembly. Such report shall provide an evaluation of the mattress

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stewardship program.

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     SECTION 2. This act shall take effect upon passage.

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LC01103/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY

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     This act would establish the procedure for the recycling, reuse and disposal of mattresses.

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     This act would take effect upon passage.

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LC01103/SUB A

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