Bill Text: NJ A5680 | 2020-2021 | Regular Session | Introduced

New Jersey Assembly Bill 5680 (Prior Session Legislation)

Introduced

Bill Title: Prohibits sale of certain packaging, paper, and plastic products unless producer implements plan to increase recycled content and recycling rates.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2021-05-12 - Introduced, Referred to Assembly Environment and Solid Waste Committee [A5680 Detail]

Download: New_Jersey-2020-A5680-Introduced.html

ASSEMBLY, No. 5680

STATE OF NEW JERSEY

219th LEGISLATURE

INTRODUCED MAY 12, 2021

Sponsored by:

Assemblyman ANDREW ZWICKER

District 16 (Hunterdon, Mercer, Middlesex and Somerset)

SYNOPSIS

Prohibits sale of certain packaging, paper, and plastic products unless producer implements plan to increase recycled content and recycling rates.

CURRENT VERSION OF TEXT

As introduced.

An Act concerning the content and disposal of certain products and supplementing Title 13 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Covered product" means a packaging product, paper product, or plastic product, except that "covered product" shall not include:

(1) containers which contain toxic or hazardous products regulated by the "Federal Insecticide, Fungicide, and Rodenticide Act," 7 U.S.C. s.136 et seq.;

(2) containers which contain drugs, medical devices, cosmetics, food, medical food, or infant formula as defined by the "Federal Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq;

(3) containers which are manufactured for use in the shipment of hazardous materials and are prohibited from being manufactured with used material by federal material specifications set forth in Sections 178.509 and 178.522 of Title 49 of the Code of Federal Regulations, or are subject to testing standards set forth in Sections 178.600 to 178.609, inclusive, of Title 49 of the Code of Federal Regulations;

(4) packaging intended for the protection or storage of a product for at least five years;

(5) beverage containers;

(6) bound books; and

(7) products that could become unsafe or unsanitary to recycle by virtue of their anticipated use.

"Department" means the Department of Environmental Protection.

"Packaging product" means any part of a package or container, including, but limited to, those composed of paper, cardboard, plastic, glass, or metal, which is used to contain, protect, wrap, or present products at any stage in the movement of the product from the manufacturer to the consumer. "Packaging product" includes secondary packaging intended for the consumer market and tertiary packaging used for transportation or distribution.

"Paper product" means paper or a product composed of paper, including, but not limited to, media for text or images, containers or packaging used to deliver printed matter to the consumer, flyers, brochures, booklets, catalogs, telephone directories, newspapers, magazines, paper fiber, and paper used for writing or printing.

"Plastic product" means a product composed of any synthetic or semisynthetic organic polymer, including, but not limited to, polyethylene terephthalate, polyethylene, polyvinyl chloride, polypropylene, polystyrene, and any polycarbonate. "Plastic product" includes products composed of compostable plastic.

"Producer" means a person who imports or manufactures a covered product under the person's own name or brand which is sold or offered for sale in the State, or a person that sells, offers for sale, or distributes a covered product in the State. "Producer" shall not include a nonprofit organization, exempt from federal taxation pursuant to section 501 (c)(3) of the federal Internal Revenue Code, or a local government unit.

"Producer responsibility organization" means a nonprofit organization designated by a group of producers to act as an agent on behalf of each producer to develop and implement a producer responsibility plan pursuant to this act.

2. a. Commencing three years after the effective date of this act, no producer shall sell, offer for sale, or distribute a covered product for use in the State unless the producer, or a producer responsibility organization acting as the producer's designated agent, is engaged in the implementation of, or has fully implemented, a producer responsibility plan which has been approved by the department pursuant to this act.

b. A producer shall be exempt from the requirements of this act if the producer:

(1) generates less than $1 million in annual revenues;

(2) generates less than one ton of covered products supplied to State residents per year; or

(3) operates as a single point of retail sale and is not supplied or operated as part of a franchise.

c. A producer may comply with the requirements of this act individually, or form or join a producer responsibility organization that fulfills the producer's responsibilities pursuant to this act.

3. a. No later than one year after the effective date of this act, a producer, or a producer responsibility organization acting as the designated agent of the producer, shall develop and submit a producer responsibility plan to the department. The producer responsibility plan shall provide a reduction of the amount of virgin material used in the production of covered products, an increase in recycling rates for covered products, and an increase in the producer's responsibility for the end-of-life management of covered products.

b. The producer responsibility plan shall cover a period of five years, and shall be reviewed and updated every five years following the approval of the original plan. The department may require the review or revision of a plan prior to expiration of the five-year period if the department has cause to believe the minimum post-consumer recycled content rates, minimum recycling rates, or other elements of the plan are not being met or followed by the producer, or the producer responsibility organization, as applicable, or if there has been a change in circumstances that warrants revision of the plan.

The submitted plan shall include, but shall not be limited to:

(1) the name and contact information of the producer or producer responsibility organization, if applicable, and the producer or producers covered under the plan;

(2) the covered products for which the producer or producer responsibility organization is responsible;

(3) a description of how comments of stakeholders were considered in the development of the plan;

(4) a funding mechanism that allocates the costs to meet the requirements of this act to producers that is sufficient to cover the cost of developing, implementing, and updating the plan, and to maintain a financial reserve sufficient to implement the plan in a fiscally prudent and responsible manner;

(5) a description of the process for local government units to recoup reasonable costs from the producer or producer responsibility organization, including, as applicable, any administrative, sorting, collection, transportation, or processing costs, if the producer or producer responsibility organization uses existing solid waste or collection services through a local government unit to meet the minimum recycling rate for a covered product;

(6) a proposed minimum post-consumer recycled content requirement and minimum recycling rate for the producer's covered products. If the producer generates covered products composed of more than one material, a distinct minimum recycling rate shall be proposed for each material, including paper, plastic, glass, and metal, and each rate shall take into consideration current State and federal rates;

(7) a set of criteria by which the producer will annually adjust the plan's minimum recycling rates;

(8) a description of how the producer, or producer responsibility organization, will meet the requirements for curbside collection imposed by section 4 of this act;

(9) a description of the public outreach and education program to be undertaken pursuant to section 5 of this act;

(10) a description of how the producer, or producer responsibility organization, will meet or exceed the minimum recycling rate for its covered products;

(11) a description of the process for end-of-life management of each covered product, including recycling and disposal, using environmentally sound management practices;

(12) a description of how a producer, or producer responsibility organization, will reduce packaging through product design and program innovations;

(13) a process to address concerns and questions from government officials and consumers;

(14) a plan to label covered products with information to assist consumers in responsibly managing and recycling covered products; and

(15) any other information, as specified by the department in rules and regulations adopted pursuant to section 9 of this act.

c. (1) No later than 120 days after receipt of a producer responsibility plan, the department shall make a determination to approve the plan as submitted, approve the plan with conditions, or disapprove the plan. If the producer responsibility plan is disapproved, the department shall inform the producer or producer responsibility organization of the reasons for the disapproval. The producer or producer responsibility organization shall have 30 days thereafter to submit a revised producer responsibility plan to the department. If the department does not provide notice of its determination within 120 days after its receipt of a plan or a revised plan, the plan shall be deemed to have been approved, and the producer or producer responsibility organization, as the case may be, shall proceed to implement the plan.

(2) The department shall verify the following features in determining whether to approve a plan:

(a) the plan adequately addresses all elements described in subsection b. of this section with sufficient detail to demonstrate that the objective of the plan will be met;

(b) the producer has undertaken satisfactory consultation with stakeholders and has provided an opportunity for stakeholder input in the implementation and operation of the plan prior to submission of the plan;

(d) the plan adequately provides funding for the costs of collecting and processing covered products or reimbursing a local government unit for increased solid waste or recycling costs, if applicable;

(e) the plan takes into consideration a post-consumer content rate and recycling rate that will create or enhance markets for recycled materials; and

(f) the plan creates a convenient system for consumers to recycle that is, at minimum, as convenient as the system in place on the date of enactment of this act.

d. (1) No later than six months after the date the plan is approved, the producer, or producer responsibility organization, shall implement the approved plan.

(2) No later than one year after the department approves a producer responsibility plan, the producer shall meet the minimum post-consumer recycled material content rate and minimum recycling rate for the covered product as approved by the department in the producer responsibility plan.

4. a. In order to meet the minimum recycling rates established pursuant to paragraph (6) of subsection b. of section 3 of this act, a producer, or producer responsibility organization, may utilize various means of collection, including curbside collection, depot drop-off, or retailer take-back for its covered products. The producer, or producer responsibility organization, shall make available curbside or multi-family recycling collection services for the duration of the producer responsibility plan for a covered product to all single and multi-family residential units for which the collection of source separated recyclable materials is provided by a local government unit as of the date of enactment of this act. The producer, or producer responsibility organization, may request that the local government unit include covered products in the collection of source separated recyclable materials, if:

(1) the covered product is suitable for residential curbside recycling collection and can be effectively sorted by the facilities receiving the curbside collected material;

(2) the provider of the residential curbside recycling service agrees to include the covered product as an accepted material; and

(3) the provider of the residential curbside recycling service agrees to the producer's or producer responsibility organization's cost-share arrangement.

The failure of a local government unit to agree to collect a covered product when the conditions specified in paragraphs (1) through (3) of this subsection are not met shall not affect the producer's responsibility to achieve the recycling rate for that product, as specified in its producer responsibility plan.

b. A producer, or producer responsibility organization, may provide means for the collection and recycling of its covered products, including curbside collection, itself or through a contract with a third party. A producer, or producer responsibility organization, that utilizes the existing solid waste or recycling services provided by a local government unit shall reimburse the local government unit for increased solid waste or recycling costs pursuant to paragraph (5) of subsection b. of section 3 of this act.

c. Any recycling services provided pursuant to this act by a producer, producer responsibility organization, or third party under contract with a producer or producer responsibility organization shall not be construed to alter the responsibilities of local government units under the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.11 et al.).

d. Any solid waste or recycling services provided pursuant to this act shall be carried out in accordance with applicable State laws regulating the collection, disposal, or recycling of solid waste, including, but not limited to, the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), and the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.11 et al.), and any rules or regulations adopted pursuant thereto.

5. a. A producer, or a producer responsibility organization, shall, no later than one year after the department approves its producer responsibility plan, implement an outreach, education, and communications campaign to consumers throughout the State regarding:

(1) best end-of-life management practices for its covered products;

(2) the location and availability of curbside or drop-off collection opportunities for its covered products, as applicable;

(3) methods to prevent the littering of its covered products; and

(4) recycling or composting instructions, as applicable, that are:

(a) consistent Statewide, except as necessary to take into account differences among local laws and processing capabilities;

(b) easy to understand; and

b. The outreach and education required pursuant to subsection a. of this section shall:

(1) be designed to achieve the goals of the producer's producer responsibility plan, including the prevention of contamination of covered products, and meeting or exceeding the producer's minimum post-consumer recycled content and recycling rates;

(2) be coordinated with other producers so as to avoid confusion for consumers;

(3) include, at a minimum:

(a) consulting on education, outreach, and communications with local governments and other stakeholders;

(b) coordinating with and assisting local municipal programs, municipal contracted programs, solid waste collection companies, and other entities providing pertinent services; and

6. a. A producer responsibility organization shall establish program participation charges for producers, which are sufficient to cover all costs necessary to meet the requirements of this act.

b. A producer responsibility organization shall structure program charges to provide producers with an incentive to reduce waste and increase recycling compatibility, and with a disincentive to increase the costs of the end-of-life management practices of the products. The producer responsibility organization shall annually adjust the charges to be paid by participating producers. At a minimum, charges shall be variable based on:

(1) costs to provide curbside collection or other level of consumer service that is, at minimum, as convenient as curbside collection or as convenient as the waste collection system on the date of enactment of this act;

(2) costs to process a producer's covered products to make them suitable for sale to secondary material markets;

(3) whether the covered product would typically be recyclable except that, as a consequence of the product's design, the product has the effect of disrupting recycling processes, or includes labels, inks, or adhesives containing heavy metals or other hazardous waste;

(4) whether the covered products are specifically designed to be reusable or refillable and have high reuse or refill rate; and

(5) the percentage of post-consumer recycled content contained in the covered products, as verified either by the producer responsibility organization or by an independent third-party certified by the department, as long as the recycled content does not disrupt the potential for future recycling.

c. A producer responsibility organization shall be responsible for calculating, collecting from producers, and distributing to local government units, reimbursement for reasonable costs for any administrative, sorting, collection, transportation, or processing costs, if the producer responsibility organization uses existing solid waste or collection services through a local government unit to meet the minimum recycling rate for a covered product. The cost calculations shall be based on:

(1) the cost of residential curbside collection;

(2) the cost of on-site processing for each recyclable material;

(3) the cost of transportation of each material type;

(4) the revenue generated from recyclable materials; and

(5) any other cost factors, as specified by the department in rules and regulations adopted pursuant to section 9 of this act.

d. To facilitate a producer responsibility organization's calculation of Statewide recycling costs, participating local government units shall report data related to their costs and the value of collected materials, if any, to the producer responsibility organization.

7. a. No later than one year after the approval of a producer responsibility plan, and annually thereafter, the producer, or producer responsibility organization, as applicable, shall submit a report to the department that provides details about the implementation of the plan during the previous year. The report shall be posted on the department's website and on the website of the producer, or producer responsibility organization. The annual report shall include:

(1) a detailed description of the methods used to collect, transport, and recycle covered products, including a description of the collection methods made available to consumers and an evaluation of the program's collection convenience;

(2) the total weight of covered products collected in the State;

(3) the weight and type of covered products collected in the State, sorted by the method of disposition;

(4) a copy of a financial audit conducted by a qualified and independent auditor, which includes the total cost of implementing the producer responsibility plan;

(5) independently audited financial statements detailing all deposits received and refunds paid by the producers covered by the approved plan, and revenues and expenditures for any fees associated with the approved plan that may be charged separately and identified on the receipt of sale for the purchase of a covered product;

(6) a detailed description of whether the program compensates local government units, solid waste collection, sorting, and reprocessing companies, or other entities for their recycling services or other related services;

(7) samples of all educational materials provided to consumers or other entities;

(8) a detailed list of efforts undertaken, and an evaluation of the methods used, to disseminate educational materials; and

(9) recommendations, if any, for how the educational component of the program can be improved.

b. The department shall not require public reporting of any confidential information that the department finds to be protected proprietary information. For purposes of this act, protected proprietary information shall mean information that, if made public, would divulge competitive business information, methods, or processes entitled to protection as trade secrets of the producer or producer responsibility organization, or information that would reasonably hinder the producer or producer responsibility organization's competitive advantage in the marketplace.

8. a. (1) A producer, or producer responsibility organization, who violates this act, or any rule or regulation adopted pursuant thereto, shall be subject, upon order of a court, to a civil penalty not to exceed $5,000 for a first offense. For a second violation committed within 12 months of a prior violation, the producer or producer responsibility organization shall be liable for a civil penalty not to exceed $10,000. For a third or subsequent violation committed within 12 months of any prior violation, the producer or producer responsibility organization shall be liable for a civil penalty not to exceed $20,000. Each day during which the violation continues shall constitute a separate and distinct offense. Any penalty imposed pursuant to this subsection may be collected, and any costs incurred in connection therewith may be recovered, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999."

(2) All producers participating in a producer responsibility organization shall be jointly and severally liable for any penalties assessed against the producer responsibility organization pursuant to this section.

b. The Commissioner of Environmental Protection may institute an action or proceeding for any violation of this act, or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. The department or the Attorney General may institute a civil action for injunctive relief to enforce this act and to prohibit and prevent a violation of this act, and the court may proceed in the action in a summary manner.

9. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), rules and regulations necessary to effectuate the purposes of this act. The rules and regulations shall include, but shall not be limited to:

a. an application fee schedule to cover the department's costs in administrating the provisions of this act, and a method by which to adjust the fee schedule annually; and

b. guidance necessary for a producer, or producer responsibility organization, to develop and manage a funding mechanism to implement a producer responsibility plan.

10. This act shall take effect immediately.

STATEMENT

This bill would require entities that produce certain packaging, paper, and plastic products to develop and implement a producer responsibility plan, which, among other things, establishes minimum recycled content and recycling rate requirements for the products. Beginning three years after the bill's enactment, the bill would prohibit the entities from selling packaging, paper, and plastic products in the State, unless they develop and implement a producer responsibility plan that has been approved by the Department of Environmental Protection (DEP).

Under the bill, "packaging product" includes any part of a package or container which is used to contain, protect, wrap, or present products at any stage in the movement of the product from the manufacturer to the consumer. Similarly, the bill defines "paper product" and "plastic product" broadly to include most products composed of these materials. However, the bill contains several exemptions, as enumerated in the definition of "covered product," in section 1 of the bill, including for products used to contain toxic products, drugs, medical devices, cosmetics, food, medical food, or infant formula.

The bill would apply to "producers," defined as a person who imports or manufactures a covered product under the person's own name or brand which is sold or offered for sale in the State, or a person that sells, offers for sale, or distributes a covered product in the State. However, certain producers are exempted from the bill's provisions, as enumerated in section 2, including producers that operate a single point of retail, and producers that generate less than $1 million in annual revenues or supply less than one ton of covered products to residents of the State annually.

Under the bill, a producer would be required to develop and submit to the DEP a producer responsibility plan no later than one year after the bill's enactment. The bill would authorize producers to cooperatively form a "producer responsibility organization," a nonprofit organization that would develop and assist in implementing the plan. The plan would cover a period of five years, and would provide for the end-of-life management of the producer's covered products. The bill would establish various requirements for the content of plan, as enumerated in section 3 of the bill, including a funding mechanism, minimum recycled content and recycling rate requirements, a description of the process for end-of-life management of each covered product, and a description of how the producer will reduce packaging through product design and program innovations. The DEP would have 120 days to approve, conditionally approve, or disapprove the plan. If approved, the producer would be required to implement the plan six months after the date the plan is approved and to meet the minimum recycled content and recycling rates one year after the plan is approved.

In order to meet the minimum recycling rates established by a producer responsibility plan, the bill would require that producers provide curbside pickup for their products, if the product is suitable for curbside pickup and if a provider of curbside recycling services agrees to pick up the product. The bill would also authorize producers to work with local government units to expand their existing recycling services. The bill would require any producer that does so to develop a process for the reimbursement of local government units of reasonable costs from the producer including, as applicable, any administrative, sorting, collection, transportation, or processing costs. The bill would also authorize producers to establish private systems of collection and recycling, including drop-off locations and retailer take-back schemes.

The bill would require producers to implement an outreach, education, and communications campaign to consumers throughout the State no later than one year after the department approves its producer responsibility plan. The bill would establish various items of required content for the campaign, as enumerated in section 5 of the bill, including best end-of-life management practices for the producer's covered products, and the location and availability of curbside or drop-off collection opportunities for covered products.

The bill would require producer responsibility organizations to establish program participation charges for producers that are sufficient to cover all costs necessary to meet the requirements of the bill. The bill would also require that producer responsibility organizations structure the program charges to provide producers with an incentive to reduce waste and increase recycling compatibility, and with a disincentive to increase the costs of the end-of-life management practices of the products. The program charges would be required to be adjusted annually, based on various criteria enumerated in section 6 of the bill. The bill would also make producer responsibility organizations responsible for calculating, collecting, and distributing funds to local government units to reimburse the local government unit for any additional expenditures caused by the implementation of the organization's producer responsibility plan.

Under the bill, a producer would be required to submit an annual report to the DEP providing information on the implementation of the producer responsibility plan. The report would be required to be posted on the producer's website and the DEP's website, and would be required to include, among other things, a copy of a financial audit conducted by a qualified and independent auditor, which contains the total cost of implementing the producer responsibility plan.

Finally, the bill would establish civil penalties for violating the bill's provisions. Any person who violates the bill's provisions would be subject to a civil penalty not to exceed $5,000 for a first offense, $10,000 for a second violation committed within 12 months of a prior violation, and $20,000 for a third or subsequent violation committed within 12 months of any prior violation. The bill would also authorize the department or the Attorney General to institute a civil action for injunctive relief to enforce the provisions of the bill and to prohibit and prevent a violation.