HOUSE . . . . . . . . No. 4851
The Commonwealth of Massachusetts
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HOUSE OF REPRESENTATIVES, June 8, 2022.
The committee on Environment, Natural Resources and Agriculture to
whom was referred the petition (accompanied by bill, House, No. 878) of
Michael S. Day and others relative to recycling costs, and the petition
(accompanied by bill, House, No. 948) of Bradley H. Jones, Jr., and others
for an investigation by a special commission (including members of the
General Court) relative to implementing extended producer responsibility
laws, reports recommending that the accompanying bill (House, No. 4851)
ought to pass.
For the committee,
MINDY DOMB.
 FILED ON: 6/3/2022
HOUSE . . . . . . . . . . . . . . . No. 4851
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Second General Court
(2021-2022)
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An Act to save recycling costs in the commonwealth.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 94 of the General Laws is hereby amended by inserting after
2 section 329 the following sections:
3 Section 330. Definitions applicable to Secs. 330 to 345. In section three hundred and
4 thirty to section three hundred and forty-five, inclusive, the following terms shall, unless the
5 context clearly appears otherwise, have the following meanings:
6 "Alternative collection program”, a program for the management of packaging material
7 that is operated by an individual producer or group of producers and that has been approved by
8 the department in accordance with section 338.
9 “Brand”, a name, symbol, word or mark that identifies a product, rather than its
10 components, and attributes the product to the owner of the brand.
11 “Collector”, a municipality, private hauler, association, or other entity that collects solid
12 waste from residential generators or schools.
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13 “Committee”, the advisory committee as established by the department pursuant to
14 section 342.
15 “Coordinating body”, the entity formed by producer responsibility organizations if more
16 than one organization is formed, pursuant to section 332.
17 "Covered materials”, any packaging material or paper products, regardless of
18 recyclability or compostability, that are sold, offered for sale, or distributed to consumers in the
19 state, including through an internet transaction.
20 “Covered material category”, the categories of covered materials as defined by the
21 department pursuant to paragraph (d) of section 342.
22 “Department”, the department of environmental protection.
23 "Franchisee", a person that is granted a license by a franchisor to use the franchisor's
24 trade name, service mark or related characteristic and to share in the franchisor's proprietary
25 knowledge or processes pursuant to an oral or written arrangement for a definite or indefinite
26 period.
27
28 "Franchisor", a person that grants to a franchisee a license to use the person's trade name,
29 service mark or related characteristic and to share in the person's proprietary knowledge or
30 processes pursuant to an oral or written arrangement for a definite or indefinite period.
31
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32 “Material recovery facility” or “facility”, a facility that receives, processes, and sells or
33 otherwise distributes post-consumer materials for recycling.
34 “Municipal solid waste”, any residential or commercial solid waste, as defined in 310
35 CMR 19.006.
36 “Municipality”, a city, town, or regional association acting on behalf of a city or town.
37 “Needs assessment”, a statewide evaluation of current funding needs affecting recycling
38 access and availability, the capacity and costs associated with the collection and transportation of
39 recyclable material, the processing capacity, market conditions, and opportunities in the state and
40 regionally for recyclable material, and consumer education needs with respect to recycling and
41 reducing contamination in collected recyclable material.
42 "Packaging material", any part of a package or container, including material that is used
43 for the containment, protection, handling, delivery, and presentation of a product that is sold,
44 offered for sale, imported, or distributed in the state, including through internet transactions
45 "Packaging material" does not include:
46
47 (a) A discrete type of material, or a category of material that includes multiple discrete
48 types of material, intended to be used for the long-term storage or protection of a durable product
49 and that can be expected to be usable for that purpose for a period of at least 5 years; or
50 (b) A discrete type of material, or a category of material that includes multiple discrete
51 types of material, that is a beverage container, as defined in section 321 of this chapter.
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52 “Paper products”, paper that can or has been printed on including flyers, brochures,
53 booklets, catalogues, greeting cards, telephone directories, magazines, paper used for copying,
54 writing or any other general use. Paper products does not include:
55 (a) paper products that, by virtue of their anticipated use, could become unsafe or
56 unsanitary to recycle; and
57 (b) any literary, text, reference, or other bound book.
58 (c) any newspaper.
59 "Producer", with respect to a covered material, means a party that has legal ownership of
60 the brand of a product for sale, use, or distribution in the state, including online retailers who sell
61 into the state, that utilizes covered material. For packaging, responsible parties shall be
62 determined based on the following criteria: (a) A person who manufactures a product under the
63 manufacturer’s own brand that uses covered material; (b) If subparagraph (a) does not apply, a
64 person who is not the manufacturer of a product under the manufacturer’s own brand that uses
65 covered material, but is the owner or licensee of a trademark under which a covered material is
66 used in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not
67 the trademark is registered; or (c) If subparagraphs (a) and (b) do not apply, a person who
68 imports the product that uses the covered material into the state for use in a commercial
69 enterprise, sale, offer for sale or distribution in the commonwealth.
70 (d) the definition of “producer” includes a franchisor of a franchise located in the
71 commonwealth but does not include the franchisee operating that franchise.
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72 (e). the definition of “producer” does not include a nonprofit organization exempt from
73 taxation under the United States Internal Revenue Code, Section 501(c)(3), and any entity
74 exempted from the program under section 331 of this chapter.
75 "Producer responsibility fund" or "fund", a privately held account established and
76 managed by the stewardship organization pursuant to section 337.
77 "Producer responsibility organization" or "organization", a not-for-profit entity formed by
78 a group of producers and contracted by the department under section 332 to act as an agent on
79 behalf of each producer to develop and implement a producer responsibility plan.
80 "Producer responsibility plan" or “plan”, a detailed plan that describes the manner in
81 which producers shall comply with the requirements of secs. 330 to 345 and all regulations
82 promulgated by the department pursuant to secs. 330 to 345.
83 "Packaging and paper products program" or “program”, the program implemented under
84 secs. 330 to 345 by the organization to assess and collect payments from producers based on the
85 type and weight of packaging material sold, offered for sale or distributed for sale in the State by
86 each producer and to reimburse participating municipalities for certain incurred municipal
87 recycling and waste management costs.
88 “Readily-recycled”, with respect to a covered material, that the type of packaging
89 material or paper product, as annually determined by the department:
90
91 (a) can be sorted by entities that process recyclable material generated in the
92 commonwealth; and
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94 (b) has a consistent market for purchase, as based on data from the prior two (2) calendar
95 years. For the purposes of this paragraph, "consistent market for purchase" means, with respect
96 to a type of packaging material, that entities processing recyclable material are willing to
97 purchase full bales of that type of fully sorted packaging material in quantities equal to or in
98 excess of the supply of that fully sorted packaging material.
99 “Readily-recycled”, does not include covered material categories or types that facilities
100 accept in low quantities or sort out of material during additional processing steps; if facilities
101 cannot aggregate or sell a full bale of a specific covered material category or type due to a lack
102 of market or inability to feasibly separate, that covered material type is not readily-recyclable.
103 Covered material categories or types shall not be considered readily-recyclable, recyclable,
104 compostable, or reusable if they contain toxic substances as defined in this section.
105 "Recycling", to separate, dismantle or process the materials, components or commodities
106 in covered materials for the purpose of preparing the materials, components or commodities for
107 use or reuse in new products or components. "Recycling" does not include energy recovery or
108 energy generation by means of combustion; pyrolysis, gasification and any other high-heat
109 chemical conversion processes; or landfill disposal of discarded covered material or discarded
110 product component materials.
111 “Residential”, of a place where residents live, stay, or are cared for over a period of more
112 than two full days and nights, including but not limited to single and multifamily homes,
113 apartments, condominiums, congregate housing, public housing, mobile home parks,
114 dormitories, assisted living residences, nursing homes, hospitals, camps and hotels.
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115 “School”, a public, private, or charter school, including pre-schools, K-12 schools,
116 colleges, and universities.
117 “Sustainable packaging trust” or “trust”, an expendable trust under control of the
118 department, created under Chapter 10 section 35EEE of the Massachusetts General Laws, for the
119 purpose of collecting funds for department administration of the packaging and paper products
120 program or an alternative collection program, and for collecting fines related to the packaging
121 and paper products program or an alternative collection program.
122 "Toxic substance", with respect to packaging material, means a chemical or chemical
123 class identified by a state agency, federal agency, international intergovernmental agency,
124 accredited research university, or other scientific evidence deemed authoritative by the
125 department on the basis of credible scientific evidence as being one or more of the following:
126 (a) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,
127 immunotoxicant, neurotoxicant, endocrine disruptor.
128 (b) a chemical or chemical class that is persistent or bioaccumulative.
129 (c) a chemical or chemical class that may harm the normal development of a fetus or
130 child or cause other developmental toxicity in humans or wildlife.
131 (d) a chemical or chemical class that may harm organs or cause other systemic toxicity.
132 (e) a chemical or chemical class that may have adverse air quality impacts, adverse
133 ecological impacts, adverse soil quality impacts, or adverse water quality impacts.
134 (f) the department has determined a chemical or chemical class has equivalent toxicity to
135 the above criteria.
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136 “Toxic substance”, for the purposes of secs. 330 to 345, includes the following chemicals
137 or chemical classes: Per and Poly Fluor Alkyl Substances (PFAS); an ortho phthalate; a
138 bisphenol compound; a halogenated, organophosphorus, organonitrogen, or nanoscale flame
139 retardant chemical; Lead; Cadmium; Mercury; Hexavalent Chromium; and Formaldehyde.
140 “Waste disposal bans”, has the same meaning as in 310 CMR 19.000.
141 Section 331. Producer exemptions. Notwithstanding any provision of secs. 330 to 345 to
142 the contrary, a producer is exempt from the requirements and prohibitions of sections 330 to 345
143 in any calendar year in which the producer (a) realized less than $1,000,000 in total gross
144 revenue during the prior calendar year, or (b) the producer sold, offered for sale or distributed for
145 sale in or into the commonwealth during the prior calendar year products contained, protected,
146 delivered, presented or distributed in or using less than one ton of covered material in total.
147 Section 332. Producer responsibility organizations. To satisfy the requirements under
148 secs. 330 to 345, producers of covered materials sold or distributed into the commonwealth shall,
149 within 6 months following the enactment of this legislation, establish (a) producer responsibility
150 organization(s) that shall act as an agent and on behalf of each producer to operate the packaging
151 and paper products program. If more than one (1) producer responsibility organization is
152 established with respect to a category or categories of covered materials, the producer
153 responsibility organizations may establish a coordinating body to coordinate and manage those
154 producer responsibility organizations, and conduct business between those producer
155 responsibility organizations, collectors, and the department.
156 (a) If multiple producer responsibility organizations are formed, they must submit one
157 single producer responsibility plan to the department and ensure seamless operation of the
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158 packaging and paper products program, thereby assigning responsibility equitably among
159 producer responsibility organizations and relieving the department of responsibility associated
160 with coordinating multiple producer responsibility organizations.
161 (b) Any producer responsibility organization formed in compliance with secs. 330 to 345
162 shall be established and operated as an organization described in section 501(c)(3) of the Internal
163 Revenue Code of 1986 and exempt from taxation under 501(a) of that Code.
164 Section 333. Producer plan. Within eight (8) months of the promulgation
165 of related regulations by the department pursuant to section 342 the producer responsibility
166 organization(s) shall submit a plan for the establishment of the packaging and paper product
167 program to the department for approval. With the exception of paragraph (h), the plan shall have
168 a duration of five (5) years. The plan(s) must include, at a minimum:
169 (a) A description of how the producer responsibility organization will administer the
170 program, including the mechanism or process, to be developed with input from producers, by
171 which producers may request and receive assistance from the organization in the reporting of
172 required information and guidance for covered material modifications that would reduce fee
173 payments; and the mechanism or process, to be developed with input from collectors, by which
174 participating collectors may request and receive assistance from the organization in the reporting
175 of required information and guidance for recycling program modifications that would increase
176 access to and participation in residential recycling programs.
177 (b) A description of how the organization intends to solicit and consider input from the
178 advisory committee and other interested entities, including, but not limited to, producers,
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179 collectors, environmental organizations, and waste and recycling entities, regarding the operation
180 of the packaging and paper products program.
181 (c) A description of the funding mechanism covering the entire cost of the program,
182 including how the organization intends to establish and manage the producer responsibility fund
183 consistent with the requirements of sections 335 and 337, including, but not limited to: staffing
184 the organization and coordinating body to manage the fund; a plan to ensure equity of access for
185 financially or otherwise challenged municipal participants; technical support to producers and
186 collectors regarding program requirements; administering and collecting payments to and
187 reimbursements from the fund and the financial mechanisms, including investment types if any,
188 the organization intends to use to manage monies within the fund.
189 (d) A proposed budget outlining the anticipated cos