HOUSE OF REPRESENTATIVES

H.B. NO.

1316

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to packaging waste.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that the State has a duty to protect the environment, economy, and public health. Globally, only nine per cent of all the plastic ever produced has been recycled. The other ninety-one per cent is in landfills, has been incinerated, or is dispersed throughout the environment. Our oceans are now awash in at least one hundred fifty million tons of plastic waste, an amount that researchers say will soon surpass the weight of all the fish in the sea. Plastic micro-particles, which can introduce toxins into our bodies, are present in the air we breathe, the water we drink, and the food we eat. The World Wildlife Fund recently commissioned a study that found we ingest an average of five grams of plastic every week, the equivalent of a credit card. There is not enough research to determine the impacts of plastic ingestion on human health.

The legislature further finds that the plastic industry has misled the public to believe that recycling is a viable solution to the plastic waste problem. Since the 1990's, the plastic industry has been funding an increasing number of public service announcements and commercials to encourage consumers to recycle. The goal of this messaging was to convince consumers that their plastic waste could be recycled and encourage them to take personal responsibility for plastic pollution, while plastic manufacturers could continue to produce more without any responsibility for the environmental impacts of their actions. Recycling became the means by which the plastic industry has placed the burden of plastic waste onto local governments and taxpayers. For Hawaii and many other states, most of the plastic collected for recycling is shipped to other countries for recycling or disposal. China was previously the biggest buyer of recyclables worldwide, but recently implemented new restrictions for imported waste. As a result, Hawaii's counties are left with fewer and more expensive options for recyclables, leading to even more of these materials ending up in landfills.

The legislature additionally finds that, following a lawsuit filed by several environmental organizations in the State, the Environmental Protection Agency ruled that Kamilo beach on Hawaii Island be listed as "impaired" under the Clean Water Act due to plastic pollution. The federal decision requires the department of health to develop methods to assess how much debris is polluting the waters at Kamilo and come up with solutions. The State is now legally liable for shouldering the cost of a problem that was created by the plastic industry.

The legislature further finds that addressing issues with only plastic waste, or only one type of waste at a time, leads producers to switch to using other materials. Instead, producers should internalize the environmental and public health costs of their products, and design better products and systems that reduce waste at the source and encourage the reuse of more waste materials.

Therefore, in order to incentivize innovation in packaging design that minimizes environmental impacts, promotes the use of recycled content in plastic packaging, promotes reuse, and ensures funding for collection, sorting, reprocessing, and end‑of‑life management services, the purpose of this Act is to require that producers of packaging waste be responsible for the end‑of‑life management of their products in a way that ensures minimal social and environmental impacts, and makes producers responsible for more of the true cost of the goods they create.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

WASTE AND LITTER MANAGEMENT

   -1 Definitions. As used in this chapter:

"Aluminum" means a covered product made of the chemical element aluminum that forms a silvery white to dull gray, nonmagnetic metal.

"Brand" means a name, symbol, word, or mark that identifies a product and attributes the product and its components, including packaging, to the brand holder of the product as the producer.

"Brand holder" means a person who owns or licenses a brand or who otherwise has rights to market a product under the brand, whether or not the brand trademark is registered.

"Compostable" means a covered product that is capable of undergoing aerobic biological decomposition that results in the material being broken down primarily into carbon dioxide, water, inorganic compounds, and biomass.

"Consumer" means a person to whom a covered product is supplied that is the intended end user of the covered product. "Covered product" means packaging and paper products sold or supplied to consumers.

"Department" means the department of health.

"Designated for collection" means the covered products sold or supplied by a producer that are included in the material categories listed in the producer's plan to be collected for reuse or recycling.

"Environmentally sound" means practices that:

(1) Comply with all applicable laws and rules to protect workers, public health, and the environment;

(2) Provide for adequate recordkeeping, tracking, and documenting of the fate of materials within the State and beyond; and

(3) Include environmental liability coverage for the producers or producer responsibility organizations implementing a plan.

"Flexible plastic" means any covered product made of polymers that is flexible in form, including films and multilayer laminates.

"Glass" means a covered product made of soda lime glass or borosilicate glass substance.

"Material category" means a group of covered products that have similar properties such as chemical composition, shape, or other characteristics including, but not limited to plastic beverage containers, other rigid plastic, flexible plastic, paper, aluminum, steel, glass.

"Packaging" means a material, substance, or object that is:

(1) Used to protect, contain, transport, or serve a product;

(2) Sold or supplied to consumers expressly for the purpose of protecting, containing, transporting, or serving products;

(3) Attached to a product or its container for the purpose of marketing or communicating information about the product;

(4) Supplied at the point of sale to facilitate the delivery of goods; or

(5) Supplied to or purchased by consumers expressly for the purpose of facilitating food or beverage consumption that is ordinarily disposed of after a single use or short-term use, whether or not it could be reused.

"Paper" means a covered product made of paper fiber, regardless of its cellulosic fiber source, which may include, but is not limited to wood, wheat, rice, cotton, bananas, eucalyptus, bamboo, hemp, and sugar cane or bagasse.

"Paper product" means paper sold and supplied, including but not limited to flyers, brochures, booklets, catalogs, newspapers, magazines, copy paper, printing paper, and all other paper materials except for bound books and paper products that, by their use, could become unsafe or unsanitary to handle.

"Plan" means a description of the approach and activities developed by a producer or producer responsibility organization to fulfill the requirements and to carry out the responsibilities of producers under this chapter.

"Plastic beverage container" means a covered product made of rigid plastic for water and flavored water, beer or other malt beverages, wine, distilled spirits, mineral water, soda water, and similar carbonated soft drinks, and any beverage other than those specified in this definition, except infant formula, intended for human or animal consumption, and in a quantity more than or equal to two fluid ounces and less than or equal to one gallon. "Plastic beverage container" does not include rigid plastic containers or rigid plastic bottles that are medical devices, medical products that are required to be sterile, prescription medicine, and packaging used for those products.

"Postconsumer recycled content" means the content of a product made of recycled materials derived specifically from postconsumer recycled material sources.

"Producer" means a person who meets one of the following criteria, in descending order of priority, for assigning responsibility to meet the requirements of this chapter:

(1) Is the brand holder of a brand under which the covered product is sold, offered for sale, or distributed in or into the State;

(2) Imports the covered product into the State for sale, offer for sale, or distribution in the State, including remote sale or distribution, such as through sales outlets, catalogs, and the Internet, but is not the brand holder as specified under paragraph (1);

(3) Elects to assume the responsibility and register in lieu of a producer; or

(4) Is determined by the department to be the responsible party for a covered product.

"Producer" does not include government agencies, counties, or other political subdivisions of the State, registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations, or de minimis producers that annually sell, offer for sale, distribute, or import into the country for sale in the State less than one ton of covered products each year or covered products that in aggregate generate less than $1,000,000 each year in revenue.

"Producer responsibility organization" means:

(1) A nonprofit organization that qualifies for a tax exemption 25 under 26 U.S.C. Sec. 501(c)(3) of the federal internal revenue code 26 and is designated by a producer or group of producers to develop and carry out the activities required of producers by this chapter; or

(2) A single producer that develops and implements a plan to carry out the activities for its own covered products, as required by this chapter.

"Program" means the activities conducted to implement a plan.

"Public place" includes streets, sidewalks, plazas, town squares, public parks, beaches, forests, or other public land open for recreation or other uses, and transportation facilities such as bus and train stations, airports, and ferry terminals. "Public place" does not include industrial, commercial, or privately owned property.

"Recyclable" means a covered product that is regularly collected, separated, and reprocessed into a recycled material, and that does not contain harmful chemical, physical, biological, or radiological substances that will pose a threat to human health or the environment for its intended or likely manner of use.

"Recycled material" means material derived from covered products that is reprocessed into products or commodities used in the production of new products whether for the original or another purpose. "Recycled material" does not include energy recovery and the reprocessing of materials that are to be used as fuels or landfill cover.

"Reusable" means a covered product that is sufficiently durable for multiple rotations of its original or similar purpose or function in a system of reuse.

"Reused material" means material that is collected after use and reused for its original or similar purpose or function.

"Rigid plastic" means any covered product made of plastic polymers that is rigid or semirigid in form, including foams.

"Socially just management" means practices that:

(1) Allow every individual to benefit from the same economic, political, and social rights, privileges, and opportunities, free from socioeconomic status, regardless of race; health disparities; age; sex, including on the basis of gender identity or orientation; disability; religion; or other characteristics; and

(2) Do not disproportionately impact any community and in particular communities in the State or elsewhere that bear disproportionately higher levels of adverse environmental, social justice, and economic impacts.

"Steel" means any covered product made of a ferrous metal substance.

   -2 Waste and litter management; producer; registration. (a) Beginning            ,     , every producer shall annually register with the department as an individual producer responsibility organization or join a third-party producer responsibility organization that is registered with the department. Producers that are not registered as or have not joined a producer responsibility organization shall not sell or supply covered products in or into the State.

(b) Third-party producer responsibility organizations shall establish a governance structure for their organization that is managed by a board of directors comprised of producers subject to this chapter.

(c) By            ,     , and annually thereafter, every registered producer responsibility organization shall submit with their registration the following:

(1) A list of all their member producers and brands;

(2) An annual payment, as determined by the department; and

(3) Until a producer responsibility organization begins to submit annual reports, as specified under section    -21, the following data for the prior calendar year:

(A) The weight, by material category, of covered products supplied into the State to consumers for residential use, accompanied by a description of how the producer or producer responsibility organization has distinguished and apportioned the quantities of packaging and paper covered products supplied to consumers for residential use from quantities supplied for nonresidential use that are not considered covered products under this chapter;

(B) The quantity of covered products supplied that were designed to be reused or refilled, by material category and by weight and number of units; and

(C) The postconsumer recycled content, by material category, of covered products supplied, including:

(i) The total postconsumer content by weight; and

(ii) The total postconsumer content as a percentage of total weight.

A producer may submit national data allocated on a per‑capita basis for the State to approximate the information required in this subsection if the producer demonstrates to the department that state level data is not available or feasible to generate.

(d) Beginning            ,     , every registered producer responsibility organization shall submit a plan to the department that meets the requirements of sections    -10 and    -11.

(e) A producer responsibility organization registered with the department as of            ,     , shall:

(1) Implement its approved plan by            ,     ; and

(2) Submit an annual report to the department consistent with section    -21 by            ,     , and each September 1st thereafter.

(f) A producer responsibility organization registering with the department after            ,     , shall:

(1) Submit the list of producers, brands, data, and payment to the department as required in subsection (c);

(2) Submit a plan, informed by a stakeholder consultation process, within one year of registration;

(3) Implement its approved plan within six months of approval; and

(4) Submit an annual report to the department consistent with section    -21 by September 1st, beginning with the first year after plan approval.

(g) A producer or producer responsibility organization that submits information or records to the department under this chapter may request that the information or records be made available only for the confidential use of the department, the director of health, or the appropriate division of the department. The director of health shall give consideration to the request if keeping the information or records confidential is not detrimental to the public interest.

   -3 Department duties; program costs. (a) By            ,     , and annually thereafter, the department shall identify the annual costs it will incur under this chapter. The department shall determine an annual payment by producer responsibility organizations that is adequate to cover, but not exceed, the department's full costs to implement, administer, and enforce this chapter in the next fiscal year, including rule making.

(b) Once the department has established an equitable payment schedule pursuant to subsection (a), the department shall equally divide the annual payment among the number of producer responsibility organizations; provided that the department may not assign a share of annual payment more than $1,000 to producer responsibility organizations that represent a single producer and report less than one hundred tons of covered products supplied during the most recent calendar year for which such data has been reported.

(c) By            ,     , and annually thereafter, the department shall collect each registered producer responsibility organization's payment of the department's cost for the next fiscal year. The department shall:

(1) Apply any remaining annual payment funds from the current fiscal year to the annual payment for the next fiscal year, if the collected annual payment exceeds the department's costs for a given fiscal year; and

(2) Increase annual payments for the next fiscal year to cover the department's costs, if the collected annual payment was less than the department's costs for the prior fiscal year.

   -4 Department duties; producer responsibility; plans. (a) Beginning            ,     , the department may determine the responsible party for a covered product when the responsible party is not a brand holder, does not import covered products into the State, or has not elected to assume the responsibility for covered products.

(b) The department shall review new, updated, and revised plans submitted by producer responsibility organizations as required in section    -2. The department shall:

(1) Make new, updated, and revised plans available for public review and comment for at least thirty days;

(2) Review new, updated, and revised producer responsibility organization plans within one hundred twenty days of receipt of a completed plan;

(3) Make a determination in writing as to whether or not to approve a plan, plan update, or plan revision and notify the producer responsibility organization of the:

(A) Determination of approval if a plan provides for a program that meets the requirements of this chapter, taking into consideration comments received under paragraph (1); or

(B) Reasons for not approving a plan.

The producer responsibility organization shall submit a new or revised plan within sixty days after receipt of the letter of disapproval.

(c) The approval of a plan by the department shall not relieve producers participating in the plan from responsibility for fulfilling the requirements of this chapter.

   -5 Department duties; covered products; reuse. (a) Beginning            ,     ,the department may develop criteria to determine whether the covered products are reusable, recyclable, or compostable. When developing the criteria, the department shall, at minimum, consider whether covered product materials:

(1) Are or may be collected, separated, and processed in sufficient quantity and quality into a marketable feedstock that can be used in the production of new products;

(2) Contain toxic substances; or

(3) Are designed in a way that is problematic for reuse, recycling, or composting.

(b) The department may adopt rules pursuant to chapter 91 to implement, administer, and enforce this chapter, including but not limited to:

(1) Establishing an equitable formula for determining each producer responsibility organization's share of the annual payment necessary to cover the department's costs, as identified under section    -3(a);

(2) Establishing additional plan content in addition to the requirements established under section    -11, as necessary to fulfill the intent of this chapter;

(3) Requiring producers to collect and manage covered products from additional locations or entities determined to be significant sources of covered product waste, including but not limited to public places and events;

(4) Establishing additional elements to be included as annual reporting requirements under section    -21, necessary to determine the program's compliance with the requirements of this chapter;

(5) Establishing third-party audit and verification requirements; and

(6) Establishing processes for new, updated, and revised plan approvals as required in section    -22.

   -6 Department duties; postconsumer recycled content requirements. (a) Beginning in            ,     , and every other year thereafter, or upon the petition from a representative of the producer responsibility organization, but not more than annually, the department shall consider whether the minimum postconsumer recycled content requirements established in section    -14 shall be waived or reduced.

(b) The department shall consider a petition from producers or producer responsibility organizations within sixty days of receipt.

(c) The department may adopt rules pursuant to chapter 91 to implement, administer, and enforce minimum postconsumer recycled content of covered products, and to adjust minimum postconsumer recycled content. In making a determination to adjust the minimum postconsumer recycled content requirements, the department may consider the following:

(1) Changes in market conditions, including supply and demand for postconsumer recycled plastics, collection rates, and bale availability;

(2) Recycling rates;

(3) The availability of suitable materials and feedstocks to meet the minimum postconsumer recycled content requirements;

(4) The capacity of recycling or processing infrastructure; and

(5) The carbon footprint, and other environmental and social impacts, of the transportation and processing of the recycled material.

(d) If the department determines that a minimum postconsumer recycled content requirement should be adjusted, the adjusted rate shall be in effect until a new determination is made or upon the expiration of the minimum postconsumer recycled content requirement's effective period, whichever occurs first. The department shall not adjust the minimum postconsumer recycled content requirements above the minimum postconsumer recycled content percentages, as established under section    -13.

   -7 Department duties; performance requirements; establishment. (a) Beginning            ,     , and no more frequently than every five years, the department may by rule:

(1) Establish additional reuse and recycling performance requirements for years not specified in section    -13;

(2) Add reuse and recycling performance requirements for additional material categories not specified in section    -13; and

(3) Adjust the reuse and recycling performance requirements established in section    -13.

(b) In making a determination to adjust the reuse and recycling performance requirements, the department may consider the following:

(1) Changes in market conditions, including supply and demand for recycled materials, collection rates, and availability;

(2) The capacity of sorting or processing infrastructure; and

(3) The carbon footprint and other social justice and environmental impacts of the production and transportation of the recycled material.

(c) If the department determines that a minimum reuse and recycling performance requirement should be adjusted, the adjusted requirement shall be in effect until a new determination is made or upon the expiration of the minimum reuse and recycling performance requirement's effective period, whichever occurs first. The department shall not adjust the overall minimum reuse and recycling performance requirements for all covered products below the requirements established under section    -13 for the years specified.

(d) The department may adopt rules pursuant to chapter 91 to add or amend material categories to be included in the reuse and recycling rate calculations as required in section    -13.

(e) A producer or producer responsibility organization may appeal adjustments to the minimum reuse and recycling performance requirements as determined under section    -13 to the department within thirty days of the department's determination.

(f) Beginning            ,     , the department may determine that a producer responsibility organization that achieves the reuse and rate requirements established for each material category of covered products supplied into the State and achieves the minimum reuse rates as established in section    -13 is considered to achieve the overall reuse and recycling performance requirements for all covered products.

   -8 Department duties; website; establishment. By            ,     , the department shall establish and begin maintenance of a public website that:

(1) Lists producers and their covered products that are participating in an approved plan; and

(2) Makes available each plan and annual report received by the department under this chapter.

   -9 Civil penalties; fines. (a) The department may administratively impose a civil penalty of up to $10,000 per violation per day on any person who violates this chapter.

(b) Any person who incurs a penalty under this section may appeal the penalty to the department.

(c) Penalties levied under this section shall be deposited in the waste and litter management special fund created in section    ‑25.

-10 Producer plan; participation; stakeholder input. (a) Each producer of covered products shall participate in, implement, and fund an approved plan. A producer that fulfills its responsibilities under this chapter through a producer responsibility organization is responsible jointly and severally, and does not assign its responsibilities under this chapter to the producer responsibility organization.

(b) A producer responsibility organization shall not include on its board of directors, or otherwise be governed by, representatives or affiliates of any public or private entities that submit bids to perform work for the producer responsibility organization or that contract with the producer responsibility organization.

(c) A producer responsibility organization shall develop and maintain a public website with enhanced language access informing the public of plan implementation details, including collection services and locations for each type of covered product, and a current list of all producers participating in the plan.

(d) Prior to submitting a new, updated, or revised plan to the department, a producer or producer responsibility organization shall conduct a consultation process to solicit and respond to input from stakeholders and from the advisory committee established under section    -24. The consultation process required in advance of the submission of a plan to the department is in addition to the department-led public comment process specified in section    -4. The consultation process shall:

(1) Address all elements of the system including collection, sorting, processing, reuse, use of recycled materials, and education;

(2) Allow opportunities for all stakeholders and members of the public to provide comment on the plan prior to its submission to the department;

(3) Offer various formats and languages as necessary for presenting the plan and receiving comments including workshops, surveys, webinars, and one-on-one meetings; and

(4) Document all comments received and responsive answers provided by the producer or producer responsibility organization for purposes of a stakeholder consultation report to be included with the submission of a plan to the department.

The stakeholder consultation report shall also describe each forum in which comment or input was received by the plan proponent.

   -11 Producer plan; contents. (a) A producer responsibility organization shall submit a plan to the department describing the approach and activities to fulfill the requirements of this chapter.

(b) All plans and plan updates shall contain the following components:

(1) A list and brief explanation of the covered products supplied or sold in or into the State by each producer and by brand participating in the plan;

(2) A description of how:

(A) The producer responsibility organization shall fulfill the requirements of this chapter;

(B) Plan will use and interact with recycling programs and infrastructure that predate the implementation of the plan, including a description of procurement practices; and

(C) Producers will increase the reuse, refill, and recyclability of covered products;

(3) A description of actions to be taken to:

(A) Work with and achieve the goals of underserved and underrepresented communities that bear a disproportionate share of adverse environmental, social justice, and economic impacts through socially just management practices, including but not limited to community outreach and engagement in the appropriate language of the impacted communities and meaningful consultation; and

(B) Increase the efficiency of the system of collecting and managing covered products through reuse and recycling;

(4) Protocols for producers retaining the right of first refusal of recycled materials produced from covered products collected;

(5) The identification of market engagement strategies for collection and recycling services to be used in direct procurement of services in order to ensure open competition among waste management service providers and improve effectiveness and efficiency including, but not limited to, strategies that involve the use of competitive tenders or open‑market financial incentives;

(6) A list of covered products designated for collection as required under section    -16;

(7) A description of the activities to be undertaken to meet the convenience standards for collection of covered products as established under section    -16, including the jurisdictions where curbside collection services are available, location of each permanent collection facility, types and locations of alternate collection methods used, and locations of public place collection services;

(8) A plan to minimize the amount, cost, and toxicity of residuals from the collection and processing of covered materials designated for collection, including residuals from materials recovery facilities or similar facilities producing specification grade commodities for sale, but do not include residuals from further processing of end market-ready material;

(9) A plan for collecting, transporting, and processing covered products to ensure responsible management and recycling, including:

(A) Achieving the reuse and recycling performance requirements in section    -13;

(B) Providing material that will assist producers in meeting recycled content requirements specified in section    -14; and

(C) Ensuring covered products designated for collection do not contain toxic substances;

(10) A description of how plan implementation will:

(A) Achieve equity in the provision of recycling collection services in the State; and

(B) Rely upon environmentally sound and socially just management practices for worker health and safety;

(11) A description of how producer fees and fee modulation will incorporate design for recycling and litter prevention as objectives;

(12) A plan for addressing contamination from covered products at compost or other organics processing facilities and similar facilities, including through decontamination equipment improvements and conducting packaging contamination composition studies;

(13) A plan for education and outreach as required under section    -20, including how counties will be involved in and reimbursed for education and outreach activities that support the achievement of the reuse and recycling performance requirements under section    -13;

(14) A summary of the plan development stakeholder consultation process undertaken consistent with section    -10;

(15) The dispute resolution process to be used, as needed, with residents, collectors, processors, producers, and end-market users of materials; and

(16) Any other information to be included in the plan as required by the department by rule.

(c) In addition to the components specified in subsection (b), producer responsibility organizations implementing plans on behalf of more than one producer shall include the following plan elements:

(1) A description of the structure and governance of the producer responsibility organization, including the membership of the advisory committee required under section    -24; and

(2) A description of the collection and structure of the fees owed by producers to be used to implement the plan, consistent with section    -15.

   -12 Collection and management. (a) Covered products collected by the program shall be managed in an environmentally sound and socially just manner at facilities operating with human health and environmental protection standards that are broadly equivalent to or better than those required in the United States and other countries that are members of the organization for economic cooperation and development.

(b) Producer responsibility organizations implementing a plan shall:

(1) Include measures to track, verify, and publicly report that covered products collected by the program are managed responsibly;

(2) Take measures to:

(A) Promote and facilitate reuse of covered products designed to be reused;

(B) Promote responsible recycling;

(C) Meet the necessary quality standards for recycled materials so that covered products collected by the program may be used to manufacture new products;

(D) Ensure that covered products collected for recycling do not contain toxic substances; and

(3) Document how they have used domestic and local collection and processing infrastructure and the extent to which the use of domestic and local collection and processing infrastructure to meet the requirements under this chapter is technologically feasible and economically practical.

(c) Prior to program use of any advanced technology for conversion of postuse plastic polymers for the purpose of producing recycled material to be counted toward reuse and recycling performance targets, the producer responsibility organization shall provide the department with a third-party assessment prepared to examine the impact of the advanced technology on the following:

(1) Air and water pollution and release or creation of any hazardous pollutants; and

(2) The greenhouse gas emissions resulting from products and processes of the advanced technology facility, taking into account the full life cycle including final use of products.

(d) The results of the assessment under subsection (c) shall, whenever reported and communicated, provide full disclosure of geographical, temporal, and technological boundaries that have been selected for the assessment.

(e) The person preparing the assessment under subsection(c) may not be interested, directly or indirectly, in the ownership or operation of the advanced recycling facility.

   -13 Reuse and recycling performance requirements. (a) To meet the reuse and recycling performance requirements established in this section, a producer shall:

(1) Demonstrate that all covered products are reusable, recyclable, or compostable by January 1, 2030;

(2) Demonstrate that the covered products collected by the program were managed consistent section    -12; and

(3) Authenticate, verified by an independent third party, the reuse and recycling rates of covered products, as specified under subsections (b) through (d), and provide the verification to the department as part of the annual reporting requirements established under section    -21.

(b) At minimum, each plan shall achieve the following performance requirements:

(1) By 2026, a minimum of fifty-five percent of all covered products supplied into the State are reused or recycled, with a minimum of five percent reused;

(2) By 2030, a minimum of seventy-five percent of all covered products supplied into the state are reused or recycled, with a minimum of ten percent reused; and

(3) For each material category of covered products supplied into the State, producer responsibility organizations shall achieve a combined reuse and recycling rates for rigid plastic, including plastic beverage containers; flexible plastic; paper; aluminum; steel; and glass, to be determined by the department.

(c) For the purposes of this chapter, the amount of recycled material shall be measured at the following calculation point for each material category of covered products included in the plan:

(1) Rigid plastic material that:

(A) Does not undergo further processing before entering pelletization, extrusion, molding, or advanced recycling for plastic polymers;

(B) Is flaked and does not undergo further processing before use in a final product; or

(C) Is compostable and is delivered to an industrial composting facility under an agreement with that facility.

(2) Flexible plastic material that:

(A) Does not undergo further processing before entering pelletization, extrusion, molding, or advanced recycling for plastic polymers;

(B) Is flaked and does not undergo further processing before use in a final product; or

(C) Is compostable and is delivered to an industrial composting facility under an agreement with that facility;

(3) Paper material that:

(A) Does not undergo further processing before entering a pulping operation; or

(B) Is compostable and is delivered to an industrial composting facility under an agreement with that facility;

(4) Aluminum material that does not undergo further processing before entering a metal smelter or furnace;

(5) Steel material that does not undergo further processing before entering a metal smelter or furnace;

(6) Glass material that does not undergo further processing before entering a glass furnace or the production of filtration media, abrasive materials, glass fiber insulation, and construction materials; and

(7) For materials that are not included in the material categories listed in paragraphs (1) through (6) of this subsection, the calculation point shall be proposed and described by the producer responsibility organization in its plan and annual report and is subject to approval by the department in order to be included in the reuse and recycling rate calculation.

(d) For each material category of covered product included in the plan, the combined reuse and recycling rate shall be calculated as the sum of the amount of reused material and recycled material managed by the program in a given year, divided by the amount of covered products supplied into the state in the same year, expressed as a percentage, where:

(1) Covered products supplied into the state in a given year is the amount calculated in accordance with section    -21(b);

(2) Reused material is the amount of covered product managed by the program in the same year that was sold or supplied for reuse for their original or similar purpose or function; and

(3) Recycled material is the amount produced from covered products managed by the program in the same year measured in accordance with subsection (c).

(e) A producer that does not achieve the reuse and recycling performance requirements established in this section, either individually or through a producer responsibility organization, shall submit a revised plan to the department no later than ninety days after submitting an annual report as required under section    -21, in which the failure to achieve the reuse and recycling performance requirements are identified. The revised plan shall include changes to the plan specifying how the program will be modified to meet the requirements of this section.

   -14 Postconsumer recycled content; requirements. (a) To meet the postconsumer recycled content requirements established in this section, a producer shall authenticate the postconsumer recycled content of covered products through third-party verification and provide the verification to the department as part of the annual reporting requirements established under section    -21.

(b) A producer that sells, offers for sale, or distributes plastic beverage containers in or into the State shall meet the following annual minimum postconsumer recycled plastic content for the total quantity of plastic beverage containers that are sold, offered for sale, or distributed in the State effective:

(1) January 1, 2025, through December 31, 2029: No less than twenty-five per cent postconsumer recycled plastic by weight; or

(2) On and after January 1, 2030: No less than fifty per cent postconsumer recycled plastic by weight.

(c) For all other covered products, a producer responsibility organization shall meet the annual minimum postconsumer recycled content for the total quantity of all covered products for the following materials, except plastic beverage containers that are supplied in the State: other rigid plastic, flexible plastic, paper packaging, other paper products, aluminum, steel, and glass. The annual minimum postconsumer recycled content shall be determined by the department.

(d) A producer responsibility organization may establish and implement a mechanism for the generation and trading of postconsumer recycled content credits for the purpose of achieving the minimum recycled content as established under subsection (c), to be accompanied by authentication through third-party verification in accordance with subsection (a).

(e) A producer that does not achieve the postconsumer recycled content requirements established under subsections (b) and (c), either individually or through a producer responsibility organization, shall submit a revised plan to the department no later than ninety days after submitting an annual report as required under section    -21, in which the failure achieve the postconsumer recycled content requirements are identified. The revised plan shall include changes to the plan specifying how the program will be modified to meet the requirements of this section.

(f) Beginning in 2025, and every other year thereafter, or at the petition from a representative of the producer responsibility organization but not more than annually, the department shall consider whether the minimum postconsumer recycled content requirements established under subsections (b) and (c) shall be waived or reduced.

(g) The department shall consider a petition from producers or producer responsibility organizations within sixty days of receipt.

(h) A producer or producer responsibility organization may appeal adjustments to the requirement for minimum postconsumer recycled content to the department within thirty days of the department's determination.

   -15 Funding requirements. (a) A nonreimbursable point-of-sale fee shall not be charged to consumers to recoup the costs of meeting producer obligations under this chapter.

(b) A producer responsibility organization implementing a plan shall fully fund all activities required under this chapter.

(c) A producer responsibility organization implementing a plan on behalf of other producers shall develop a system to collect charges from participating producers to cover the costs of plan implementation in an environmentally sound and socially just manner that encourages the use of design attributes that reduce the environmental impacts of covered products, such as through the use of eco-modulated fees to:

(1) Encourage designs intended to facilitate reuse and recycling;

(2) Encourage the use of recycled content;

(3) Discourage the use of problematic materials that increase system costs of managing covered products; and

(4) Encourage other design attributes that reduce the environmental impacts of covered products including, but not limited to, the potential to create litter.

(d) Any system of program charges owed by producers that includes discounted charges or favorable treatment of covered products deemed to be reusable shall establish a basis for determining that products, in practice, are typically reused a minimum number of times.

(e) Fees collected for department duties under section    -3 may only reimburse costs directly associated with the implementation, administration, and enforcement of this chapter.

   -16 Convenience standards. (a) A producer responsibility organization shall ensure convenient collection services are available for the full list of covered products designated for collection in the plan.

(b) In areas without curbside garbage collection, and in all areas for covered products designated for alternate collection, free and equitable access to permanent collection facilities shall be provided that are located at each solid waste transfer, processing, or disposal site, and at additional locations as needed to provide convenient access for residents. For the purposes of this subsection, "convenient access" means a reasonable opportunity to drop off covered materials at collection events for underserved areas where the population does not have a permanent collection location within a fifteen mile radius.

(c) The producer responsibility organization, in consultation with the department and the local community, shall determine a reasonable frequency and location of collection events to be held in underserved areas. The producer responsibility organization shall give special consideration for providing opportunities to geographically isolated populations.

(d) Under initial plan implementation, collection shall be provided in public places where recycling collection receptacles were in place and managed by government agencies prior to the effective date of this section.

(e) Every producer responsibility organization shall identify in its plan and on its website, in appropriate languages, each area where curbside and alternative collection services are available, the location of each permanent collection opportunity for covered products, the types and locations of alternate collection methods used, and the locations of public place collection services.

   -17 County authority to collect covered products. (a) The provisions of this chapter shall not:

(1) Obligate a county to participate in a plan implemented by a producer or a producer responsibility organization;

(2) Restrict the authority of a county under section 46-85; or

(3) Restrict the authority provided to a county under chapter 342G.

(b) A county may enter into contractual agreements with producers or producer responsibility organizations under which the county:

(1) Collects covered products from residents in single-family and multifamily residences within its jurisdiction; or

(2) Arranges for reimbursement from producers to cover the costs incurred by the county for collection of covered products.

(c) Counties may carry out resident education and outreach consistent with producer plan provisions under section    -20 and be reimbursed for the costs of these initiatives, subject to mutual agreement between the jurisdiction and the producer responsibility organization, using an approach specified in the plan.

   -18 Service provider agreements. (a) Except as provided for in section    -17, to carry out producer responsibilities under this chapter, producers that enter into contractual agreements with service providers, including counties and private entities, shall:

(1) Use open, competitive, and fair procurement practices;

(2) Compensate counties that provide collection or outreach services under section    -16 and section    -17 for all reasonable costs associated with the services provided;

(3) Ensure that all contracted service providers:

(A) Meet minimum operating standards, including the requirements of this chapter and chapter 342G;

(B) Operate in an environmentally sound and socially just manner;

(C) Meet high labor standards, including family-level wages, providing benefits including health care and pensions, and demonstrate procurement from and contracts with women, minority, or veteran-owned businesses; and

(D) Provide fair opportunities regardless of ethnicity, race, gender, age, disability, religion, sexual orientation, or national origin; and

(4) Ensure that contracted service providers maintain records and provide the producer responsibility organization with verifiable chain of custody documentation and other documentation necessary to evaluate the performance relative to the requirements of this chapter.

(b) Producers, individually or through a producer responsibility organization, shall submit the records and documentation required under this section to the department, upon request by the department.

   -19 Infrastructure investments. (a) Each producer responsibility organization shall invest in reuse and recycling infrastructure and market development in the State. This may include but is not limited to:

(1) Installing or upgrading equipment to improve sorting of covered products or mitigating the impacts of covered products to other commodities at existing sorting and processing facilities; and

(2) Capital expenditures for new technology, equipment, and facilities.

(b) Infrastructure investments shall be detailed in the annual report submitted to the department.

   -20 Education and outreach. (a) Each plan implemented by producer responsibility organizations under this chapter shall include an education and outreach component that is designed to provide clear, equitable, socially just, and consistent information to residents and support the achievement of the reuse and recycling performance requirements under section    -13 that, at minimum:

(1) Uses consistent and easy to understand messaging and education statewide adapted to the diverse communities of the State, with the aim of reducing resident confusion regarding the recyclability and end-of-life management options available for different covered products;

(2) Establishes a process for answering customer questions and resolving customer concerns;

(3) Provides outreach and educational resources that are conceptually, linguistically, and culturally accurate for the communities served and reach the State's diverse ethnic populations, including through meaningful consultation with communities that bear disproportionately higher levels of adverse environmental and social justice impacts;

(4) Develops and provides outreach and educational materials about the program to be used by retailers, collectors, government agencies, and nonprofit organizations;

(5) Informs producers and retailers about their obligation to sell only covered products of producers participating in an approved plan; and

(6) Evaluates the effectiveness of education and outreach efforts for the purposes of making progress toward performance requirements established in this chapter.

   -21 Annual reporting on activities. (a) Beginning September 1,     , and each September 1st thereafter, each producer responsibility organization shall submit an annual report to the department for the preceding calendar year of plan implementation. The annual report shall include plan implementation activities as required by this chapter.

(b) Each annual report shall include the following information:

(1) The quantity of covered products supplied, including:

(A) A list and brief explanation of the covered products supplied or sold in or into the State to consumers by each producer and by brand participating in the program and a list of covered products supplied that are designated for collection through curbside collection or by an alternate means under the approved plan;

(B) The weight and, where applicable and determined by the department to be necessary, number of units, by material category, of covered products supplied into the State to consumers for residential use, to be used for the purposes of calculating the reuse and recycling rate requirements under section    -13; and

(C) A description of how the producer responsibility organization has distinguished and apportioned the quantities of packaging and paper supplied to consumers for residential use, which are considered covered products under this chapter, from quantities supplied for nonresidential use that are not considered covered products under this chapter;

(2) The quantity of covered products supplied that were designed to be reused or refilled, by material category, by weight and, where applicable and determined by the department to be necessary, number of units;

(3) The quantity of postconsumer recycled content, by material category, of covered products supplied, measured in accordance with the requirements in section    -14 and including the total postconsumer content by weight and as a percentage of total weight;

(4) The quantity of material managed and methods of management by the program, including the weight:

(A) Of all material managed by the program, by material category, including covered products and other materials;

(B) And number of units, where applicable and determined by the department to be necessary, by material category, of reused material managed by the program, measured as defined in section    -13;

(C) And number of units, where applicable and determined by the department to be necessary, by material category, of recycled material managed by the program, measured as defined in section    -13;

(D) By material category, of material managed by the program sent for energy recovery;

(E) By material category, of material managed by the program sent for landfill disposal; and

(F) By material category, of material managed by the program for other methods of management not listed in paragraphs (4)(B) through (E), accompanied by a description of each other method used;

(5) The final destinations of recycled material managed by the program, including a list of:

(A) Names and locations of end users or reprocessors that received recycled material managed by the program, by material category; and

(B) Descriptions of the forms of recycled material managed by the program that were sold or supplied to the end users or reprocessors;

(6) The reuse and recycling rates achieved by the program, for each material category of covered product supplied and for all covered products supplied into the State, calculated in accordance with the requirements in section    -13;

(7) A description of the levels and types of physical contamination in the materials collected and managed by the program;

(8) Activities undertaken to meet the convenience standards for collection of covered products as established section    -16, including:

(A) A list of jurisdictions and service providers where curbside collection services are provided by the program, accompanied by a brief description of services provided, locations and operating hours of permanent collection facilities, types and locations of alternate collection methods used, and locations of public place collection services; and

(B) Collection service accessibility and convenience metrics, including population coverage, the geographic distribution of collection, and the distance of collection locations to state residents;

(9) A description of the investments made in reuse and recycling infrastructure and market development in the State, including the amount spent expressed as a percentage of the program's total annual expenditures;

(10) A description of education and outreach activities undertaken and a summary of the evaluation of education and outreach effectiveness;

(11) A description of actions taken to:

(A) Reduce the life-cycle environmental impacts of covered products supplied or sold in or into the State and to increase reuse, refill, and recyclability of covered products;

(B) Increase collection and recycling system efficiency, including:

(i) The establishment of any financial incentives for collection;

(ii) Reductions in contamination through public education and outreach or labeling of products, infrastructure upgrades, and market development; and

(iii) The establishment of new collection services or locations;

(C) Provide and expand public place recycling, coordinate with the department on litter prevention measures, and reduce contamination from packaging at compost and other organics processing facilities;

(D) Address toxic substances in covered products;

(E) Achieve equity in the provision of covered product collection services in the State, including in communities bearing disproportionate burdens from environmental, social justice, and economic impacts; and

(F) Manage covered products in an environmentally sound and socially just manner that exceeds human health, safety, and environmental protection standards;

(12) An assessment of the greenhouse gas emissions associated with program operations, including both direct emissions and indirect emissions with all activities, and including the avoided emissions from source reduction, reuse, and recycling of covered products into new products and materials;

(13) Identification of the governing board members of a producer responsibility organization and the identification of the members of the advisory committee formed under section    -24;

(14) A summary of advisory committee engagement and input as well as comments received from additional stakeholders and community members; and

(15) Any other information required by the department, as adopted by rule.

(c) Prior to the submission of the annual report, all data and information that is material to the department's review of the program's compliance with the requirements of this chapter shall be annually audited and verified by an independent third party.

(d) Annual independent auditing and verification shall:

(1) Include documentation of the reuse and recycling rate and recycled product content;

(2) Encompass the management of materials from the point of collection through processing and sale of recycled materials; and

(3) Determine whether all facilities involved in the collection, processing, and final disposition of collected covered products are managed in an environmentally sound and socially just manner.

(e) The department may adopt rules pursuant to chapter 91 to establish annual reporting requirements, information to be included, and third-party verification requirements necessary for the department to determine the program's compliance with requirements of this chapter.

   -22 Plan approval; updates; revisions. (a) A producer responsibility organization shall submit a plan to the department that addresses five calendar years of operation. A plan shall not be valid for no more than five years.

(b) Within three years of implementation of its initial plan, a producer responsibility organization shall submit an updated plan for the following five calendar years to address changes in the operations and activities of the program.

(c) For all subsequent plans submitted after the initial plan, a producer responsibility organization shall submit, one year prior to the expiration of the plan, an updated plan for the following five calendar years of operation to address changes in the operations and activities of the program.

(d) If the reuse and recycling performance requirements established section    -13 have not been met as of the time of plan update, an independent evaluation shall be conducted of the producer responsibility organization's efforts to implement the approved plan. The evaluation shall provide information for the producer responsibility organization to use to target and improve reuse and recycling rate performance.

(e) A producer responsibility organization shall carry out the stakeholder consultation process established in section    -10 prior to the submission of each plan and plan update.

(f) Producers may revise their plan if significant changes have occurred.

(g) The department may require a producer responsibility organization to revise its plan more frequently than every five years if:

(1) The program and activities to implement the plan fail to achieve the reuse and recycling performance requirements established in section    -13 or otherwise fail to achieve significant requirements under this chapter; or

(2) There are significant changes to the regulatory or economic environment in which plan activities are being carried out.

(h) The department shall review new, updated, and revised plans submitted by producer responsibility organizations as required section    -4.

   -23 Private right of action. (a) A producer or producer responsibility organization implementing an approved plan may bring a civil action or actions to recover costs, damages, and fees, as specified in this section, from any producer who sells or otherwise makes available in the State covered products not included in an approved plan. An action under this section may be brought against one or more defendants. An action may only be brought against a defendant producer when the producer responsibility organization or a producer incurs costs in the State, including reasonable incremental administrative and program promotional costs, in excess of $1,000 to collect, transport, and recycle or otherwise dispose of the covered products of a nonparticipating producer.

(b) A producer or producer responsibility organization may bring a civil action against another producer or producer responsibility organization that underperforms on its collection or recycling rate obligations under this chapter by failing to collect and provide for the end-of-life management of covered products in an amount roughly equivalent to the national market share of the covered products of the producer or of the national market share of covered products of all producers participating in a plan implemented by a producer responsibility organization. Producers participating in a producer responsibility organization that underperforms its obligations under this chapter are liable jointly and severally.

(c) The remedies provided in this section are in addition to the enforcement authority of the department and do not limit and are not limited by a decision by the department to impose a civil penalty. The department is not required to audit, participate in, or provide assistance to a producer or producer responsibility organization pursuing a civil action authorized under this section.

(d) A producer responsibility organization or producer may only bring a civil action if the producer or the producer responsibility organization has, at least thirty days prior, provided the underperforming producer or producer responsibility organization with a written warning regarding the requirements of this chapter. The written warning shall inform a producer or producer responsibility organization that it shall participate in an approved plan or otherwise come into compliance with the requirements of this chapter within thirty days of the notice. A civil action may only be brought against an underperforming producer or producer responsibility organization who remains in violation of the requirements of this chapter for at least thirty days after receiving the written warning.

   -24 Advisory committee; established. (a) Each producer and producer responsibility organization shall establish an advisory committee. The department may require individual producers operating an individual program to establish an advisory committee that meets the requirements established under subsection (b).

(b) At a minimum, the advisory committee shall include at least one person representing each of the following:

(1) The county in which the producer or producer responsibility organization is located;

(2) Public sector recycling and solid waste industries;

(3) Private sector recycling and solid waste industries;

(4) Public or private reuse and waste prevention organizations;

(5) Recycled plastic and paper feedstock users;

(6) Public place recycling programs;

(7) Freshwater and marine litter programs;

(8) Environmental organizations;

(9) Consumer organizations; and

(10) Communities that bear disproportionately higher levels of adverse environmental impacts.

(c) If requested, each producer and producer responsibility organization shall reimburse representatives of community groups and nonprofit members for their expenses, including but not limited to childcare, travel expenses, information technology supplies and services, and wage replacement that are related to participating on the advisory committee. Other members may be reimbursed for travel expenses on an as needed basis to ensure their ability to participate.

(d) Each producer responsibility organization shall:

(1) Hold an advisory committee meeting at least once per year;

(2) Request and consider comments from its advisory committee prior to submission of annual reports, plan updates, and plan revisions to the department;

(3) Document all comments received and responsive answers to the department as an appendix submitted in annual reports, plan updates, and plan revisions; and

(4) Include a summary of advisory committee engagement and input in an annual report submitted to the department.

   -25 Waste and litter management special fund; established. There is established within the state treasury the waste and litter management special fund. All funds received by the department from producer responsibility organizations pursuant to this chapter shall be deposited in the special fund. Subject to legislative appropriation, moneys from the special fund shall only be used by the department for implementing, administering, and enforcing waste and litter management programs pursuant to this chapter."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Department of Health; Waste and Litter; Management; Plan; Special Fund

 

Description:

Requires producers of packaging waste be responsible for the end-of-life management of their products in a way that ensures minimal social and environmental impacts. Allows the department of health to administratively impose civil penalties. Establishes the waste and litter management special fund.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.