Bill Summary – FastDemocracy

H-0170.1
                                HOUSE BILL 1118
     State of Washington       67th Legislature         2021 Regular Session
     By Representatives Berry, Fitzgibbon,        Bateman,   Senn,   Peterson,
     Gregerson, Ryu, Kloba, Macri, and Pollet
     Prefiled 01/08/21. Read first time 01/11/21.      Referred to Committee
     on Environment & Energy.
      AN ACT Relating to the management of certain materials to support
  recycling and waste and litter reduction; amending RCW 43.21B.300,
  70A.205.005, 70A.205.010, 70A.205.115, 70A.205.045, 70A.205.070,
  81.77.030, 81.77.160, 81.77.185, and 81.80.470; reenacting and
  amending RCW 43.21B.110; adding a new chapter to Title 70A RCW; and
  prescribing penalties.
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     NEW SECTION. Sec. 1. FINDINGS—INTENT. (1) The legislature finds
 the department of ecology was directed, through an independent
 consultant, to study how plastic packaging is managed in the state,
 assess various policy options, and provide recommendations to achieve
 goals, that included:
     (a) Plastic packaging sold into the state is 100 percent
 recyclable, reusable, or compostable by January 1, 2025.
     (b) Plastic packaging sold into the state incorporates at least
 20 percent postconsumer recycled content by January 1, 2025.
     (c) Plastic packaging is reduced when possible and optimized to
 meet the need for it.
     (2) The legislature also finds that the study recommendations
 included establishing an extended producer responsibility policy for
 all consumer packaging and paper with a framework that makes
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 producers   responsible   for   achieving  specific  management   and
 environmental outcomes for the consumer packaging they supply into
 Washington state. In addition, the legislature finds extended
 producer responsibility policies designed to cover all material types
 collected through the state's existing recycling system offers the
 potential for greater economies of scale and operational efficiencies
 than could be achieved under a policy applied only to a subset of
 materials collected through that system.
     (3) The legislature intends that the policy of the state is to
 ensure that by 2040 an overall recycling and reuse rate of 90 percent
 is achieved for plastic packaging and other packaging materials. The
 legislature further intends that these materials are recycled or
 reused through extended producer responsibility programs. It is the
 intent of the legislature that extended producer responsibility
 programs are implemented by and for producers of plastic packaging
 and other material types so that the design and management of their
 packaging is accomplished in a manner that ensures minimal
 environmental impact, involves producers from design concept to end-
 of-life management, and incentivizes innovation and research to
 minimize environmental impacts.
     NEW SECTION. Sec. 2. DEFINITIONS. Except for section 21 of this
 act, the definitions in this section apply throughout this chapter
 unless the context clearly requires otherwise.
     (1) "Aluminum" means a covered product made of the chemical
 element aluminum that forms a silvery white to dull gray, nonmagnetic
 metal.
     (2) "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.
     (3) "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.
     (4) "Compostable" means a covered product that is capable of
 undergoing aerobic biological decomposition in a system meeting the
 requirements of chapter 70A.205 RCW, that results in the material
 being broken down primarily into carbon dioxide, water, inorganic
 compounds, and biomass.
     (5) "Consumer" means a person to whom a covered product is
 supplied that is the intended end user of the covered product.
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     (6) "Covered product" means packaging and paper products sold or
 supplied to consumers.
     (7) "Department" means the department of ecology.
     (8) "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.
     (9) "Environmentally sound" means practices that:
     (a) Comply with all applicable laws and rules to protect workers,
 public health, and the environment;
     (b) Provide for adequate recordkeeping, tracking, and documenting
 of the fate of materials within the state and beyond; and
     (c) Include environmental liability coverage for the producers or
 producer responsibility organizations implementing a plan.
     (10) "Flexible plastic" means any covered product made of
 polymers that is flexible in form, including films and multilayer
 laminates.
     (11) "Glass" means a covered product made of soda lime glass or
 borosilicate glass substance.
     (12) "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:
     (a) Plastic beverage containers;
     (b) Other rigid plastic;
     (c) Flexible plastic;
     (d) Paper;
     (e) Aluminum;
     (f) Steel; and
     (g) Glass.
     (13) "Packaging" means a material, substance, or object that is:
     (a) Used to protect, contain, transport, or serve a product;
     (b) Sold or supplied to consumers expressly for the purpose of
 protecting, containing, transporting, or serving products;
     (c) Attached to a product or its container for the purpose of
 marketing or communicating information about the product;
     (d) Supplied at the point of sale to facilitate the delivery of
 goods; or
     (e) Supplied to or purchased by consumers expressly for the
 purpose of facilitating food or beverage consumption that is
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 ordinarily disposed of after a single use or short-term use, whether
 or not it could be reused.
     (14) "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.
     (15) "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: (a) Bound books; and (b) paper products that, by their
 use, could become unsafe or unsanitary to handle.
     (16) "Plan" means 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.
     (17)(a) "Plastic beverage container" means a covered product made
 of rigid plastic for the beverages identified in (a)(i) through (v)
 of this subsection, 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:
     (i) Water and flavored water;
     (ii) Beer or other malt beverages;
     (iii) Wine;
     (iv) Distilled spirits;
     (v) Mineral water, soda water, and similar carbonated soft
 drinks; and
     (vi) Any beverage other than those specified in this subsection,
 except infant formula.
     (b) "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.
     (18) "Postconsumer recycled content" means the content of a
 product made of recycled materials derived specifically from
 postconsumer recycled material sources.
     (19)(a) "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:
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     (i) Is the brand holder of a brand under which the covered
 product is sold, offered for sale, or distributed in or into
 Washington;
     (ii) Imports the covered product into Washington 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 (a)(i) of
 this subsection;
     (iii) Elects to assume the responsibility and register in lieu of
 a producer as defined under (a)(i) and (ii) of this subsection; or
     (iv) As determined by the department to be the responsible party
 for a covered product.
     (b) "Producer" does not include:
     (i) Government agencies, municipalities, or other political
 subdivisions of the state;
     (ii) Registered 501(c)(3) charitable organizations and 501(c)(4)
 social welfare organizations; or
     (iii) De minimis producers that annually sell, offer for sale,
 distribute, or import into the country for sale in Washington:
     (A) Less than one ton of covered products each year; or
     (B) Covered products that in aggregate generate less than
 $1,000,000 each year in revenue.
     (20) "Producer responsibility organization" means:
     (a) A nonprofit organization that qualifies for a tax exemption
 under 26 U.S.C. Sec. 501(c)(3) of the federal internal revenue code
 and is designated by a producer or group of producers to develop and
 carry out the activities required of producers by this chapter; or
     (b) A single producer that develops and implements a plan to
 carry out the activities for its own covered products, as required by
 this chapter.
     (21) "Program" means the activities conducted to implement a
 plan.
     (22)(a) "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.
     (b) "Public place" does not include industrial, commercial, or
 privately owned property.
     (23) "Recyclable" means a covered product that is regularly
 collected, separated, and reprocessed into a recycled material, and
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 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.
     (24)(a) "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.
     (b) "Recycled material" does not include energy recovery and the
 reprocessing of materials that are to be used as fuels or landfill
 cover.
     (25) "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.
     (26) "Reused material" means material that is collected after use
 and reused for its original or similar purpose or function.
      (27) "Rigid plastic" means any covered product made of plastic
 polymers that is rigid or semirigid in form, including foams.
     (28) "Socially just management" means practices that:
     (a) 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.
      (b) 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.
     (29) "Steel" means any covered product made of a ferrous metal
 substance.
      (30) "Toxic substance" includes chemicals or classes of chemicals
 restricted in:
      (a) Children's products under chapter 70A.430 RCW and high
 priority chemical of high concern for children in chapter 173-334
 WAC;
      (b) Persistent bioaccumulative toxins listed in chapter 173-333
 WAC; or
     (c) Consumer products under chapter 70A.222, 70A.230, 70A.335,
 70A.340, 70A.350, 70A.400, or 70A.405 RCW.
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     NEW SECTION.      Sec. 3.     PRODUCER RESPONSIBILITY ORGANIZATION
 DUTIES. (1) Beginning April 1, 2022, every producer must 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 may not sell or supply covered products in or into
 Washington.
     (2)   Third-party    producer   responsibility  organizations   must
 establish a governance structure for their organization that is
 managed by a board of directors comprised of producers subject to
 this chapter.
     (3) By April 1, 2022, and each April 1st thereafter, every
 registered producer responsibility organization must submit with
 their registration the following:
     (a) A list of all their member producers and brands;
     (b) An annual payment, as determined by the department in section
 4 of this act;
     (c) Until a producer responsibility organization begins to submit
 annual reports, as specified under section 17 of this act, the
 following data for the prior calendar year:
     (i) 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;
     (ii) The quantity of covered products supplied that were designed
 to be reused or refilled, by material category, by weight and number
 of units; and
     (iii) The postconsumer recycled content, by material category, of
 covered products supplied, including:
     (A) The total postconsumer content by weight; and
     (B) The total postconsumer content as a percentage of total
 weight;
     (d) A producer may submit national data allocated on a per-capita
 basis for Washington 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.
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     (4) Beginning January 1, 2024, every registered producer
 responsibility organization must submit a plan to the department that
 meets the requirements of sections 5 and 6 of this act.
     (a) A producer responsibility organization registered with the
 department as of April 1, 2022, must:
     (i) Implement its approved plan by July 1, 2025; and
     (ii) Submit an annual report to the department consistent with
 section 17 of this act by September 1, 2026, and each September 1st
 thereafter.
     (b) A producer responsibility organization registering with the
 department after April 1, 2022, must:
     (i) Submit the list of producers, brands, data, and department
 payment as required in subsection (3) of this section;
     (ii) Submit a plan, informed by a stakeholder consultation
 process, within one year of registration;
       (iii) Implement its approved plan within six months of approval;
 and
     (iv) Submit an annual report to the department consistent with
 section 17 of this act by September 1st, beginning the first year
 after plan approval.
     (5) 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, or the
 appropriate division of the department. The director of the
 department must give consideration to the request and if this action
 is not detrimental to the public interest and is otherwise in
 accordance with the policies and purposes of chapter 43.21A RCW, the
 director must grant the request for the information to remain
 confidential as authorized in RCW 43.21A.160.
     NEW SE