2023 -- H 5091

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LC000254

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RESPONSIBILITY

FOR PACKAGING

     Introduced By: Representatives Bennett, Carson, Speakman, Cortvriend, McEntee,
Caldwell, Shanley, Donovan, Ajello, and Handy

     Date Introduced: January 12, 2023

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

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

amended by adding thereto the following chapter:

CHAPTER 99

EXTENDED PRODUCER RESPONSIBILITY FOR PACKAGING

     23-99-1. Findings -- Purpose.

     (a) Towns and cities in Rhode Island bear much of the burden of recycling and disposing

of post-consumer waste; however, they have little control over sources of waste, particularly

packaging waste.

     (b) Unrecyclable single-use packaging is a common contaminant in recycling loads in

Rhode Island. Recycling loads rejected from the Rhode Island resource recovery materials

recycling facility contribute to waste and recycling costs borne by towns and cities.

     (c) Rhode Island’s central landfill is projected to reach capacity by 2034. Single-use

packaging makes up approximately sixteen percent (16%) of the waste buried in the landfill each

year.

     (d) Single-use plastic packaging is a significant contributor to litter and ocean debris. As

of 2022, more than sixteen million tons (16,000,000 tt) of plastic waste washes into the ocean each

year.

     (e) Single-use packaging has significant environmental impacts on a local and global scale,

including polluting our waters, contributing to climate-damaging emissions, and creating litter.

     (f) It is in the best interests of the health, safety, and welfare of residents and visitors to

Rhode Island to protect our environment and natural resources by reducing non-reusable, non-

recyclable, and toxic packaging and to achieve a more equitable relationship between packaging

producers and local governments and communities.

     23-99-2. Definitions.

     As used in this chapter:

     (1) "Auditor general" means the person appointed pursuant to § 22-13-1 to carry out the

duties specified in § 22-13-4.

     (2) "Beverage container" means a container used to contain all drinks in liquid form and

intended for human consumption.

     (3) "Bio-plastic" or "bio-plastics" means plastic produced from biological sources such as

vegetable fats and oils, polysaccharides, sugar, proteins, or other materials that are designed to be

biodegradable.

     (4) "Brand" means any mark, word, name, symbol, design, device, or graphical element or

a combination thereof, including a registered or unregistered trademark, that identifies and

distinguishes a product from other products.

     (5) "Commissioner" means the commissioner of the department of environmental

management.

     (6) "Department" means the Rhode Island department of environmental management.

     (7) "Discarded/discards" means packaging material that has been used for its intended

purpose and is no longer needed by consumers, businesses, institutions, and other users, and can be

managed through reuse, recycling, or disposal.

     (8) "Disposal" means the landfilling or incineration of packaging material. "Disposal" shall

also include energy recovery or energy generation by any means, including, but not limited to,

combustion, pyrolysis, gasification, solvolysis, thermal desorption, waste to fuel, or any other

chemical conversion process, or molecular conversion process. "Disposal" shall also include the

use of materials as landfill cover.

     (9) "Environmental justice community" means any neighborhood or community which is

composed predominantly of persons of color or persons below the poverty line, that is subject to a

disproportionate burden of environmental hazards.

     (10) "Inspector general" means the individual appointed pursuant to § 23-99-14.

     (11) "Local government" means any municipal corporation, governmental subdivision of

the state, local government unit, special district, school, local or regional board, commission, or

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authority authorized by law to plan or provide for waste management services for a specific

geographical area.

     (12) "Packaging" or "packaging material" means a discrete material or category of material,

regardless of recyclability, including, but not limited to, such material types as paper, plastic, glass,

metal, or multi-material, that is used for the containment, protection, handling, delivery, transport,

distribution, or presentation of another product that is sold, offered for sale, imported, or distributed

in the state.

     "Packaging" and "packaging material" do not include:

     (i) "Medical devices and packaging" which are included with products regulated as a drug,

medical device, or dietary supplement by the United States Food and Drug Administration under

the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 321 et seq., Sec. 3.2(E) of 21 U.S. Code

of Federal Regulations, or the Dietary Supplement Health and Education Act;

     (ii) "Animal biologics", including vaccines, bacterins, antisera, diagnostic kits, and other

products or biological origin, and other covered materials regulated by the United States

Department of Agriculture under the Virus, Serum, Toxin Act, 21 U.S.C. Sec. 151-159;

     (iii) Packaging regulated by the federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. Sec. 136 et seq. or other applicable federal law, rule, or regulation; and

     (iv) Beverage containers subject to a returnable container deposit, if applicable.

     (13) "Packaging reduction organization" means the nonprofit entity or entities contracted

by the department and authorized to collect producer fees, assist producers with compliance with

the requirements of this chapter, provide technical assistance to producers, and implement the

packaging reduction and recycling program.

     (14) "Packaging reduction and recycling program" or "program" means the program

implemented by the packaging reduction organization, and overseen by the department, to reduce

packaging, assess and collect information and payments from producers based on the amount of

packaging used by the producer to contain, protect, deliver, present, or distribute their products, in

order to pay for the development of packaging reduction programs including, but not limited to,

reusable and refillable packaging systems and infrastructure, reimbursements to local government

to cover the cost of packaging recycling, and investments in education and outreach.

     (15) "Post-consumer recycled material" means new material produced using material

resulting from the recovery, separation, collection and reprocessing of material that would

otherwise be disposed of or processed as waste and that was originally sold for consumption. "Post-

consumer recycled material" does not include post-industrial material or pre-consumer material, or

material generated by means of advanced recycling, chemical recycling, combustion, gasification,

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incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-fuel, or any other

chemical or molecular conversion process.

     (16) "Producer" means:

     (i) A person or entity that manufactures or uses in commercial enterprise a product sold,

offered for sale, contained, protected, delivered, presented, or distributed in or using packaging into

the state under the brand of the manufacture; or

     (ii) If subsection (16)(i) of this section does not apply, a person or entity that is not the

manufacturer of the product, but is the owner or licensee of a trademark, regardless of whether the

trademark is registered, under which a product is sold, offered for sale, contained, protected,

delivered, presented, or distributed in or using packaging; or

     (iii) If subsections (16)(i) and (16)(ii) of this section do not apply, a person or entity that

imports a product that is contained, protected, delivered, or presented in packaging, into the United

States or the state for use in commercial enterprise in the state; or

     (iv) An entity that manufactures or uses in a commercial enterprise, sells, offers for sale,

or distributes the packaging material in the state under the brand of the manufacturer; and

     (v) "Producer" includes a franchisor of a franchise located in the state but does not include

the franchisee operating that franchise.

     (17) "Product line" means a group of related products all marketed under a single brand

name that is sold by the same producer to distinguish products from each other for better usability

for customers.

     (18) "Recyclable" means a product or packaging material:

     (i) That can be sorted by entities that process post-consumer materials generated in the

state;

     (ii) That has a consistent regional market for purchase by end users in the production of

new products; and

     (iii) Which can be recycled with minimal losses of material during processing and

manufacturing. Whether a product or packaging type meets these criteria shall be determined by an

annual review process as described in § 23-99-6.

     "Recyclable" does not include material processed through advanced recycling, chemical

recycling, combustion, gasification, incineration, pyrolysis, solvolysis, thermal desorption, waste-

to-energy, waste-to-fuel, or any other chemical or molecular conversion process.

     (19) "Recycled" means the use of discarded packaging materials or products in the

production of a new product or packaging in place of virgin materials. Material will not be

considered "recycled" if it is used as landfill cover. "Recycled" material does not include

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contaminants, residues, and other process losses.

     (20) "Recycling" means the series of activities by which material is:

     (i) Collected, transported, sorted, and processed;

     (ii) Used in industrial feedstocks in place of virgin materials to manufacture new products

with minimal loss of material quality and quantity, as determined through the process set forth in §

23-99-6. "Recycling" does not include energy recovery or energy generation by any means,

including, but not limited to, advanced recycling, chemical recycling, combustion, gasification,

incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-fuel, or any other

chemical or molecular conversion process. It also does not include landfill disposal of discarded

material or discarded product component materials, including the use of materials as landfill cover.

     (21) "Recycling rate" means the percentage of any given packaging type that is ultimately

recycled. The recycling rate for any packaging material shall be calculated as the total weight of

packaging that is recycled in a given year divided by the total weight of packaging generated.

Material losses (contaminants and residues) accruing during collection, processing and

manufacturing new products do not count as recycled and should not be in the numerator of the

equation.

     (22) "Reuse" means the return of packaging back into the economic stream for use in the

same kind of application intended for the original packaging, without effectuating a change in the

original composition of the package, the identity of the product, or the components thereof.

     (23) "Reuse and refill system" means a program or set of mechanisms designed to facilitate

multiple uses of packaging. Mechanisms may include, but are not limited to, deposits, incentives,

curbside collection, collection kiosks, refill stations, dishwashing facilities, and re-distribution

networks.

     (24) "Reusable or refillable packaging and containers" means packaging material and

containers that are specifically designed and manufactured to maintain its shape and structure, and

be materially durable for repeated sanitizing, washing, and reuse.

     (25) "Toxic substance" means a chemical or chemical class identified by a state agency,

federal agency, international intergovernmental agency, accredited research university, or other

scientific entity deemed authoritative by the department on the basis of credible scientific evidence

as being one or more of the following:

     (i) A chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,

immunotoxin, neurotoxicant, or endocrine disruptor;

     (ii) A chemical or chemical class that is persistent or bioaccumulative;

     (iii) A chemical or chemical class that may harm the normal development of a fetus or child

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or cause other developmental toxicity in humans or wildlife;

     (iv) A chemical or chemical class that may harm organs or cause other systemic toxicity;

     (v) A chemical or chemical class that may have adverse air quality impacts, adverse

ecological impacts, adverse soil quality impacts, or adverse water quality impacts; or

     (vi) A chemical or chemical class that the department has determined has equivalent

toxicity to the criteria listed in this definition.

     (26) "Unit" means each discrete component of a package or container, including material

that is used for the containment, protection, handling, delivery, transport, distribution, and

presentation of a product that is sold, offered for sale, imported, or distributed in the state, including

through Internet transactions.

     (27) "Universal Product Code" or "UPC" means a standard for encoding a set of lines and

spaces that can be scanned and interpreted into numbers for product identification purposes.

"Universal product code" includes any industry-accepted barcode used for product identification

purposes in a manner similar to a UPC, including, but not limited to, a European Article Number.

     23-99-3. Packaging reduction and recycling program.

     (a) This chapter establishes a packaging reduction and recycling program by which

producers who sell, offer for sale, or distribute products contained, protected, delivered, presented,

or distributed in packaging shall pay fees based on the quantity and type of packaging used in the

state. The fees shall be used to fund the administration of this program. Producers shall also be

required to make changes to the design of their products in order to meet packaging reduction and

recycling requirements.

     (b) The department shall contract with a 501(c)(3) nonprofit, to act as the packaging

reduction organization, which shall collect packaging reduction, generation, and recycling

information and fee payments, as described in § 23-99-9, from participating producers. The

payments collected from producers shall be deposited into the packaging reduction fund to

reimburse local governments for the costs associated with reducing and managing packaging waste,

reimburse the department for their administration of the program, and to support eligible projects

that reduce packaging waste by investing in packaging reduction and elimination, reuse and refill

systems and programs, recycling infrastructure, and comprehensive multi-media educational

programs.

     (c) No later than eighteen (18) months after the effective date of this chapter, the

department shall conduct a statewide packaging reduction, reuse, and recycling needs assessment

as described in § 23-99-8 to determine the current state of packaging reuse, recycling, and disposal,

and to identify barriers and opportunities to reduce the amount of packaging discarded and disposed

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of, and to increase the reusability and recyclability of packaging.

     (d) The auditor general shall conduct an annual audit of the program, including, but not

limited to, the amount of money received; the amount of money sent to local governments; the

amount of money used to invest in reduction, recycling, and reuse programs and services by the

packaging reduction organization and any state offices; the amount of discarded packaging

generated, reduced, and recycled; any recommendations for improvement of the program. The audit

shall be a public document.

     23-99-4. Producer responsibilities and exemptions of small producers.

     (a) One year after the selection of the packaging reduction organization as required by §

23-99-5, a producer shall not sell, offer for sale, or distribute into the state a product contained,

protected, delivered, presented, or distributed in packaging unless the producer is:

     (1) Registered with the packaging reduction organization; and

     (2) In full compliance with all requirements of this chapter.

     (b) A producer shall annually report to the packaging reduction organization:

     (1) The total amount, by unit, of each type of packaging material sold, offered for sale, or

distributed for sale into the state by the producer in the prior calendar year;

     (2) All information necessary for producer and the packaging reduction organization to

meet its obligations required pursuant to § 23-99-6.

     (c) A producer shall annually submit a written statement, signed by the chief executive

officer, verifying the producer’s compliance with:

     (1) The toxic substance reduction requirements of § 23-99-13;

     (2) The packaging reduction requirements of § 23-99-11; and

     (3) The packaging recycling requirements of § 23-99-12.

     (d) A producer is exempt from the requirements and prohibitions of this chapter in a

calendar year in which:

     (1) The producer realized less than one million dollars ($1,000,000) in total gross revenue

during the prior calendar year; or

     (2) The producer sold, offered for sale, or distributed for sale products contained, protected,

delivered, presented, or distributed in or using less than one ton of packaging material in total during

the prior calendar year.

     (e) A producer claiming an exemption under this section shall provide the department with

sufficient information to demonstrate that the claimant is eligible for an exemption.

     23-99-5. Selection of the packaging reduction organization.

     (a) Consistent with the requirements of this section, within one year after the promulgation

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of rules as required by § 23-99-15, the department shall select and enter into a contract with a

501(c)(3) nonprofit organization to act as the packaging reduction organization in order to operate

the packaging reduction and recycling program for a period of ten (10) years.

     (b) Consistent with applicable competitive bidding requirements under state purchasing

laws and following the initial adoption of rules by the department pursuant to § 23-99-15, the

department shall issue a request for a proposal for the operation of the packaging reduction and

recycling program. The proposals shall be required to cover the ten (10) year operation of the

program by the successful bidder and shall be required to include, at a minimum, the following

information:

     (1) A description of how the bidder will administer the packaging reduction and recycling

program, including the mechanisms and processes for providing assistance to producers to comply

with the reporting requirements of this chapter;

     (2) The mechanisms and processes the bidder will use to compile information from

participating producers;

     (3) How the bidder intends to establish and manage the packaging reduction fund,

including, but not limited to, public participation, the staffing the bidder intends to use for

management of the fund, and the plan for providing technical support to interested persons

regarding use of the funds;

     (4) A financial assurance plan that ensures all funds held in the packaging reduction fund

are immediately and exclusively forfeited and transferred to or otherwise made immediately

available to the department if the packaging reduction organization contract with the department is

terminated by the department, or expires;

     (5) A proposed budget outlining the anticipated costs of operating the producer

responsibility program, including identification of any start-up costs that will not be ongoing and a

description of the method by which the bidder intends to determine and collect producer payments

during the initial startup period;

     (6) A certification that the bidder will not share, except with the department, information

provided to the bidder by a producer that is proprietary information and that is identified by the

producer as proprietary information. The certification shall include a description of the methods by

which the bidder intends to ensure the confidentiality of such information; and

     (7) Any other additional information required by the department.

     (c) If, at the close of the competitive bidding process set forth in this section, the department

determines that no bidder has submitted, in accordance with this section, a proposal that meets the

requirements of this section, the department shall run the program by itself or a designated state

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public body.

     23-99-6. Responsibilities of the packaging reduction organization.

     (a) The packaging reduction organization shall:

     (1) Register all producers;

     (2) Collect and compile data from producers as required by § 23-99-4;

     (3) Collect fees due from producers as required by § 23-99-9;

     (4) Reimburse the department and the auditor general for the costs associated with

conducting the needs assessment required by § 23-99-8;

     (5) Distribute funds to reimburse local governments and private companies for the costs

associated with the implementation of reduction and refill and reuse programs, collection,

transportation, and recycling of packaging materials as required by § 23-99-10;

     (6) Make recommendations to the department regarding investments toward packaging

reduction, reuse, and recycling as required by § 23-99-10; and

     (7) Offer technical support to participating producers, with an emphasis on support to small

businesses, to assist them with compliance with the requirements of this chapter, including

information about procuring affordable alternatives to non-compliant packaging and reducing

packaging.

     (b) Annually, the packaging reduction organization shall submit a report to the department

that, at a minimum, shall include the following information:

     (1) Contract information for the packaging reduction organization;

     (2) A list of all participating producers, brand(s), and products identified by the Universal

Product Code (UPC) that the producer sells, offers for sale, or distributes into the state that are

contained, protected, delivered, presented, or distributed in or using packaging;

     (3) The total amount, by both weight and number of units of each type of packaging

material used to contain, protect, handle, deliver, transport, distribute, or present products sold,

offered for sale, or distributed into the state by each individual producer during the prior calendar

year;

     (4) The total amount, by both weight and number of units, of each type of packaging

material used to contain, protect, handle, deliver, transport, distribute, or present products sold,

offered for sale, or distributed into the state by all producers during the prior calendar year.

     (5) A complete accounting of all payments made to and by the packaging reduction

organization during the prior calendar year;

     (6) A list of producers believed to be out of compliance with the requirements of this

chapter, and the reason the packaging reduction organization believes the producer to be out of

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compliance. Information on non-compliant companies shall be provided to the attorney general’s

office in a timely fashion and for possible enforcement action by that office;

     (7) A description of the educational and outreach efforts made by the packaging reduction

organization in the prior calendar year, and how those efforts were designed to reduce packaging

waste, and increase reuse and recycling of packaging materials;

     (8) An assessment of whether the fee structure adopted by the department pursuant to § 23-

99-9 has been effective in incentivizing improvements to the design of packaging material,

including actual reduction of packaging, increases in reusable and refillable packaging, recycling

rates for packaging materials, and decreases in the amount of packaging;

     (9) A description of the reimbursements and expenditures made pursuant to § 23-99-10;

and

     (10) Any additional information required by the department.

     (c) The packaging reduction organization shall conduct an annual review process to

determine whether products and packaging materials are recyclable. This review shall be conducted

in consultation with representatives of end markets, including recycled commodities brokers and

manufacturers who purchase post-consumer material for use in manufacturing new products. For

the purposes of calculating producer payments and municipal reimbursements in accordance with

this chapter, this annual process shall include a transitional period between the date the

determination is finalized and the date it goes into effect.

     (d) The packaging reduction organization shall conduct public outreach and provide

consumers with educational and informational materials related to reducing the amount of

packaging discarded, recycled, and disposed of in the state. The outreach and education shall, at a

minimum, include:

     (1) A description of the environmental, social, economic, and environmental justice impact

associated with improper disposal of packaging materials;

     (2) At least three (3) public hearings in geographically diverse parts of the state each year,

to solicit public input on the implementation and effectiveness of this chapter and suggested

improvements;

     (3) Information regarding the management of discarded packaging including reuse,

recycling, composting, and disposal by landfilling and incineration;

     (4) The location and availability of curbside and drop-off collection opportunities for

packaging waste, including deposit and take-back programs;

     (5) Description of the environmental, social, economic, and environmental justice impact

associated with failure to reuse or recycle packaging materials;

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     (6) Information regarding municipal reimbursement for the costs associated with

packaging reuse, recycling, and disposal; and

     (7) Any other information required by the department.

     (e) The public outreach and education conducted by the packaging reduction organization

shall:

     (1) Utilize all available forms of media, including, but not limited to, television, radio,

print, electronic, and web-based media to provide information directly to residents in the state, in

multiple languages;

     (2) Be coordinated with the various local governments in the state to incorporate electronic,

print, web-based and social media elements that individual local governments may elect to use, at

their discretion, to provide education directly to their residents;

     (3) Be provided to producers for inclusion on their packaging’s label to inform consumers

about the methods to responsibly reuse, recycle, or dispose of the packaging; and

     (4) Be coordinated with other similar public outreach and education programs in the state

as necessary to avoid consumer confusion and facilitate the consolidation of available resources.

     (f) In addition to engaging in the public education and outreach required by this section,

the packaging reduction organization shall be authorized to provide producers and retailers with

educational materials related to the responsible reduction, reuse, recycling, or disposal of discarded

packaging. The educational and informational materials provided to the retailer under this

subsection may include, but need not be limited to, printed materials, signage, templates of

materials that can be reproduced by retailers and provided thereby to consumers at the time of a

product’s purchase, and advertising materials that promote and encourage consumers to properly

reuse, recycle, or dispose of packaging materials.

     (g) The packaging reduction organization shall not spend funds on lobbying federal, state,

or local governments or the making of campaign contributions to any candidates running for office.

     23-99-7. Responsibilities of the department.

     (a) Beginning one year after the selection of the packaging reduction organization pursuant

to § 23-99-5, and annually thereafter, the department shall work with the packaging reduction

organization to:

     (1) Calculate the amount of packaging that was generated during the prior calendar year;

     (2) Calculate the recycling rate for all packaging during the prior calendar year;

     (3) Calculate the recycling rate for each packaging material type during the prior calendar

year; and

     (4) Develop a list of producers believed to be out of compliance with the requirements of

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this chapter.

     (b) In the event that the department determines that the packaging reduction organization

no longer meets the requirements of this chapter or fails to implement and administer the

requirements of this chapter in a manner that effectuates the purposes of this chapter, the department

shall revoke its approval of the packaging reduction organization and shall select a new packaging

reduction organization to replace it, or, in the alternative, may elect to operate the program itself.

     (c) The department or attorney general shall take enforcement action against all non-

compliant producers in accordance with § 23-99-16.

     23-99-8. Statewide reduction, reuse, and recycling needs assessment.

     (a) Consistent with applicable competitive bidding requirements, within one year after

promulgating the rules and regulations required to implement this chapter, and every five (5) years

thereafter, the department shall issue a request for proposals to conduct a statewide packaging

reduction, reuse, and recycling needs assessment, hereinafter "needs assessment", to identify

barriers and opportunities for reducing, reusing, and recycling packaging materials. The proposals

shall include, at a minimum, a description of how the bidder will conduct the needs assessment to

evaluate the following:

     (1) The current recycling rate for each type of packaging material;

     (2) The amount, by weight and material type, of packaging recycled at each recycling

facility that accepts discarded packaging generated in the state;

     (3) The processing capacity, market conditions, and opportunities in the state and

regionally for recyclable materials;

     (4) The net cost of end-of-life management of discarded packaging in the state, including

the cost associated with the collection, transportation, sortation, recycling, landfilling, or

incineration of discarded packaging;

     (5) The availability of opportunities in the recycling, and reuse system for businesses

owned by women and people of color;

     (6) Current barriers affecting recycling access and availability in the state;

     (7) Current barriers to the marketability of recyclable materials generated in the state;

     (8) Opportunities for the creation of packaging reuse and refill programs in the state;

     (9) Opportunities for the improvement of packaging recycling in the state, including the

development of end markets for recycled packaging materials;

     (10) Current barriers affecting the creation and implementation of packaging reuse and

refill programs; and

     (11) Consumer education needs in the state with respect to packaging waste reduction,

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recycling, reducing contamination in recycling, and reuse and refill systems for packaging.

     (b) After reviewing proposals, the department shall select an applicant to perform the needs

assessment. If, at the close of the competitive bidding process, the department determines that no

applicant can successfully perform the needs assessment, the department shall perform the needs

assessment itself, or designate another state office to do it.

     (c) The cost incurred by the department or designee associated with conducting the needs

assessment shall be paid for by funds from the packaging reduction and recycling fund.

     (d) The department shall report the results of the study to the public, the media, state

legislature, the governor, the auditor general and the attorney general, who are all directed to

coordinate enforcement of this law.

     23-99-9. Assessment of fees.

     (a) The department shall promulgate regulations setting forth the manner in which producer

payments on packaging materials shall be calculated and assessed.

     (b) The payments shall be calculated based on the total amount, by weight, of each type of

packaging material used to contain, protect, deliver, present, or distribute a product sold, offered

for sale, or distributed into the state by the producer in the prior calendar year.

     (c) The list of packaging material types for which there is a specific fee shall include, at a

minimum, the following material types:

     (1) Polyethylene terephthalate (PET or PETE);

     (2) High density polyethylene (HDPE);

     (3) Polyvinyl Chloride (PVC);

     (4) Low density polyethylene (LDPE);

     (5) Polypropylene (PP);

     (6) Polystyrene (PS) including expanded polystyrene;

     (7) Other plastic resin types not specifically identified here;

     (8) Bio-plastics;

     (9) Paper;

     (10) Cardboard;

     (11) Wood;

     (12) Glass;

     (13) Bi-metal, steel and other ferrous metals;

     (14) Aluminum and other non-ferrous metals;

     (15) Mixed materials including laminates and packaging containing more than one of the

above materials; and

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     (16) Any other material used for consumer packaging.

     (d) The fees shall be designed to cover, at a minimum, the total cost associated with:

     (1) The collection transportation, and management of each type of packaging material used

to contain, protect, deliver, present, or distribute products sold, offered for sale, or distributed into

the state by all producers;

     (2) The department’s and other state agencies’ administration of this chapter;

     (3) The packaging reduction organization’s administration of the packaging reduction and

recycling program;

     (4) The cost associated with the development of the statewide packaging reduction, reuse,

and recycling needs assessment pursuant to § 23-99-8; and

     (5) Any other factors determined by the department.

     (e) The fees adopted under this section shall delineate criteria to be used to initially

establish and subsequently adjust producer payments in a manner that incentivizes:

     (1) A reduction in the total packaging as measured by weight used by producers, and

discarded by consumers, businesses, institutions, and other users. Weight reductions shall not be

achieved by substituting plastic for other materials types;

     (2) An increase in the proportion of a producer’s total packaging that is managed within a

reuse and refill system;

     (3) An increase in the proportion of a producer’s total packaging that is deemed recyclable

as determined by an annual review process as described in § 23-99-6;

     (4) An increase in the proportion of a producer’s total packaging that is ultimately recycled;

     (5) A reduction in toxic components in packaging materials; and

     (6) A reduction in litter from packaging materials.

     (f) There shall be no fee assessed on packaging that is designed for reuse and refill and

contained within a reuse or refill system.

     (g) The department shall update and revise the fees every three (3) years.

     23-99-10. Packaging reduction fund.

     (a) There is hereby established, a separate, non-lapsing, interest-bearing fund to be known

as the packaging reduction fund, which will be managed by the packaging reduction organization

with oversight from the department.

     (b) The packaging reduction organization shall deposit into the fund all payments received

from producers in accordance with § 23-99-9, and all penalties collected pursuant to § 23-99-16.

     (c) Beginning one year after the first payment of fees by producers pursuant to § 23-99-9,

and annually thereafter, the packaging reduction organization shall:

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     (1) Retain a portion of the fees deposited into the packaging reduction fund to cover the

costs associated with its administration of the packaging reduction and recycling program; and

     (2) Reimburse the department, the office of the inspector general, the office of attorney

general, the auditor general and all other state entities for the costs associated with administering

and enforcing the requirements of this chapter and its implementation regulations. This

reimbursement shall include costs associated with performing, revising, and updating the statewide

packaging reduction, reuse, and recycling needs assessment required by § 23-99-8. This

reimbursement shall also cover any costs incurred by the department in adopting and revising rules

and regulations as well as administering and enforcing the requirements of this chapter.

     (d) Beginning one year after the first payments of fees by producers pursuant to § 23-99-

9, and annually thereafter, the packaging reduction organization shall distribute money from the

packaging reduction fund to reimburse local governments for the costs incurred for the

management, reduction, and recycling of packaging waste, as long as the local government

provides recycling services to all residents, businesses, schools, and institutions in their jurisdiction.

Local governments that contract with private haulers and recyclers to handle the management,

reduction, and recycling of packaging waste are eligible for reimbursement, as long as the private

hauler or recycler provides recycling services to all residents, businesses, schools, and institutions

within the local government’s jurisdiction. Nothing in this subsection shall be interpreted as

allowing for the reimbursement of costs associated with the disposal of packaging.

     (e) Beginning one year after the first payment of fees by producers pursuant to § 23-99-9,

and annually thereafter, the packaging reduction organization shall make all remaining funds

following the reimbursement and distributions required by subsections (c) and (d) of this section,

available for projects and programs that will help achieve the packaging reduction requirements of

§ 23-99-11, and the packaging recycling requirements of § 23-99-12. Annually, the money

allocated for projects and programs under this subsection shall be at least fifty percent (50%) of the

money provided to local governments pursuant to subsection (d) of this section.

     (1) Funds may be used for investment in collection systems, transportation systems, reuse

systems, washing systems, redistribution systems, technology for tracking and data collection,

capital expenditures on new and emerging technology focused on reusable and refillable packaging,

as well as equipment, and facilities, and other projects determined by the department to facilitate

the goals and objectives of this chapter.

     (2) Funds may also be used for investment in public outreach and education in ways that

increase access and participation in packaging reduction, reuse, refill, and recycling systems

throughout the state.

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     (3) The packaging reduction organization shall prioritize investments for projects and

programs that will directly benefit environmental justice communities, including, but not limited

to, communities that are home to a landfill, incinerator, transfer station, or waste-to-energy facility.

     (4) Any investments made pursuant to this subsection shall be approved by the department.

The department shall approve or deny proposed investments within ninety (90) days of receipt of

a proposal from the packaging reduction organization. The investments may be approved, at the

discretion of the department, as long as the proposed investment shall, at a minimum:

     (i) Increase the transition of packaging from non-reusable to reduced, reusable or refillable

packaging;

     (ii) Increase access to reuse and refill infrastructure in the state;

     (iii) Increase the capacity of reuse and refill infrastructure in the state;

     (iv) Provide reuse and refill instructions that are, to the extent practicable, consistent

statewide, easy to understand, translated into various commonly used languages, and easily

accessible; or

     (v) Provide for outreach and education that are coordinated across programs or regions to

avoid confusion for residents and developed in consultation with local government and the public.

     23-99-11. Packaging reduction requirements.

     (a) Each individual producer is required to meet the packaging reduction requirements

contained in this section as follows:

     (1) Beginning two (2) years after a producer first registers with the packaging reduction

organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by ten

percent (10%) by weight.

     (2) Beginning four (4) years after a producer first registers with the packaging reduction

organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by

twenty percent (20%) by weight.

     (3) Beginning six (6) years after a producer first registers with the packaging reduction

organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by

thirty percent (30%) by weight.

     (4) Beginning eight (8) years after a producer first registers with the packaging reduction

organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by

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forty percent (40%) by weight.

     (5) Beginning ten (10) years after a producer first registers with the packaging reduction

organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by

fifty percent (50%) by weight.

     (b) The reductions required by this section shall be measured against the total amount of

packaging the producer used to contain, protect, deliver, present, or distribute the products they

sold, offered for sale, or distributed for sale, during the first year they registered with the packaging

reduction organization.

     (c) These reductions required by this section may be achieved by using the following

strategies:

     (1) Elimination of packaging components;

     (2) Reduction of packaging components;

     (3) Using reuse and refill systems; and

     (4) Packaging rightsizing, light weighting, and optimization.

     (d) The reductions required by this subsection shall not be achieved by substituting plastic

for other materials.

     (e) In the case of a producer that enters the market with fifty percent (50%) or more by

weight of its packaging being reusable and contained within a reuse and refill system, that producer

may apply to the department for a waiver from the packaging reduction requirements.

     23-99-12. Packaging recycling requirements.

     (a) Each individual producer is required to meet the packaging recycling requirements

contained herein.

     (b) A producer is required to ensure that the packaging used to contain, protect, deliver,

present, or distribute the products they sell, offer for sale, or distribute into the state, is made of a

material that meets the following recycling rates:

     (1) Not less than thirty percent (30%) within five (5) years after the effective date of this

chapter;

     (2) Not less than fifty percent (50%) within eight (8) years after the effective date of this

chapter; and

     (3) Not less than seventy percent (70%) within twelve (12) years after the effective date of

this chapter.

     (c) The requirements of subsection (b) of this section shall not apply to reusable or refillable

packaging or containers.

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     23-99-13. Toxic reduction requirements.

     (a) Beginning three (3) years after the promulgation of rules and regulations pursuant to §

23-99-15, and every three (3) years thereafter, the department shall designate at least ten (10) toxic

substances or families of toxic substances that may no longer be sold, offered for sale, distributed

for sale, or distributed for use in packaging in this state unless it determines there are not ten (10)

chemicals that meet the definition of toxic substances. If the department determines there are not

ten (10) toxic substances that meet such a definition, it shall publish a detailed statement of its

findings and conclusions supporting such determination.

     (b) Within one hundred eighty (180) days of designating a toxic substance, the department

shall adopt regulations to prohibit the newly designated toxic substance in packaging, with an

effective date no later than two (2) years after such designation.

     (c) Any producer that violates this section shall be subject to a fine for each violation not

to exceed fifty thousand dollars ($50,000) per violation. For the purposes of this section, each

product line that is sold, offered for sale, or distributed to consumers, via retail commerce, in the

state, including through an Internet transaction shall be considered a violation.

     23-99-14. Establishment of the office of inspector general.

     (a) The director of the department shall establish and appoint a standalone independent

inspector general within the department. The inspector general shall administratively report to the

director of the department. The inspector general shall evaluate the programs created by this chapter

on an annual basis to ensure it is properly functioning, and the producers are following the

requirements of this chapter.

     (b) The director, the inspector general or designees, shall have the authority to investigate

the compliance of producers with all provisions of this chapter and to bring enforcement violations

against non-compliant producers.

     23-99-15. Rulemaking.

     (a) The department may promulgate rules and regulations as necessary to implement,

administer, and enforce this chapter. All initial rules and regulations developed to implement the

provisions of this chapter shall be promulgated no later than one year after the effective date of this

chapter.

     (b) The department shall solicit input from the public of any draft rules or regulations to

implement this chapter, solicit public comment on draft rules or regulations for a period of at least

ninety (90) days, and hold a public hearing on the draft rules or regulations.

     (c) The rules and regulations adopted by the department pursuant to this chapter shall

include, at a minimum:

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     (1) A process for contracting with the packaging reduction organization pursuant to the

requirements of § 23-99-5;

     (2) A process for annually determining a schedule of producer fees and payment collections

pursuant to the requirements of § 23-99-9;

     (3) A process for collecting all necessary information to ensure producer compliance with

the requirements of this chapter;

     (4) A process for evaluating whether a producer is in compliance with the packaging

reduction requirements of § 23-99-11;

     (5) A process for evaluating whether a producer is in compliance with the packaging

recycling requirements of § 23-99-12;

     (6) A process for evaluating whether a producer is in compliance with the toxic packaging

reduction requirements of § 23-99-13;

     (7) A process for determining on an annual basis the types of packaging material that are

recyclable;

     (8) A process for the assessment of the packaging reduction organization and the packaging

reduction and recycling program;

     (9) Requirements for the packaging reduction organization to conduct a representative

audit of recyclable material processed and sold by facilities that process recyclable material

generated in the state and of municipal solid waste disposed of in the state;

     (10) A process for establishing and enforcing penalties for all violations of the requirements

of this chapter;

     (11) A process for determining new toxic substances in packaging pursuant to § 23-99-13;

     (12) A process for how the department will oversee and monitor the packaging reduction

organization’s management of the packaging reduction fund, including a process for submitting

and reviewing proposals from the packaging reduction organization regarding investments in

projects and programs that will help achieve the packaging reduction requirements of § 23-99-11,

and the packaging recycling requirements of § 23-99-12; and

     (13) A process for determining whether information is proprietary information and

therefore, shall be handled as confidential information.

     23-99-16. Penalties and enforcement.

     (a) Failure to comply with the requirements of this chapter by either the packaging

reduction organization or an individual producer shall subject the violators to penalties. The

department, inspector general, and the office of the attorney general, may conduct investigations,

including inspecting operations, facilities, and records of producers and the packaging reduction

LC000254 - Page 19 of 21

organization, and by performing audits of producers and the packaging reduction organization, to

determine whether entities are complying with the requirements of this chapter.

     (b) The department, the inspector general, or the office of the attorney general, shall notify

the packaging reduction organization and producers of any conduct or practice that does not comply

with the requirements of this chapter and of any inconsistencies identified in an audit.

     (c) The department, the inspector general, or the office of the attorney general, may issue

a notice of violation to, and impose an administrative civil penalty not to exceed one hundred

thousand dollars ($100,000) per day per violation on, any entity not in compliance with this chapter

or any of the regulations the department adopts to implement this chapter. For the purposes of this

section, each product line that is sold, offered for sale, or distributed to consumers, via retail

commerce, in the state, including through an Internet transaction, shall be considered a violation.

     (d) Any funds collected under this section shall be deposited into the packaging reduction

fund.

     23-99-17. Enforcement by action in superior court.

     (a) The provisions of this chapter may be enforced by means of an action in the superior

court seeking either enforcement of civil penalties, injunctive relief, a declaratory judgment, a writ

of mandamus, or any combination thereof. No such action may be commenced without the plaintiff

providing written notice of the violations of this chapter to defendants at least sixty (60) days prior

to filing a legal action in superior court.

     (b) All persons shall have standing to commence an enforcement actions for equitable

relief.

     (c) Reasonable attorneys’ fees shall be recoverable by all substantially prevailing plaintiffs

who seek equitable relief under this section.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RESPONSIBILITY

FOR PACKAGING

***

     This act would establish the packaging reduction and recycling program. The department

of environmental management (DEM) would be responsible for selection of an organization to

administer the program. The program over a multi-year basis would require reduction in the amount

of packaging material used for products. Additionally, this act would create a new position of

inspector general within DEM. Administrative penalties not to exceed one hundred thousand

dollars ($100,000) per day could be imposed for violations. A civil action for equitable relief for

any violation could be pursued by any person. Reasonable attorney fees would be recoverable for

a substantially prevailing party seeking equitable relief for a violation of the provisions of this act.

     This act would take effect upon passage.

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