2012 -- S 2398

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LC01303

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCT STEWARDSHIP FOR DISCARDED

PRODUCTS

     Introduced By: Senators Ruggerio, McCaffrey, Felag, Walaska, and Miller

     Date Introduced: February 15, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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

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amended by adding thereto the following chapter:

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     CHAPTER 86

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     AN ACT TO PROVIDE LEADERSHIP REGARDING THE RESPONSIBLE RECYCLING,

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     REUSE AND DISPOSAL OF CONSUMER PRODUCTS

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     23-86-1. Purpose. -- The purposes of this chapter are:

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     (1) To establish a shared system for the collection, recycling, and reuse of certain

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categories of discarded products in Rhode Island;

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     (2) To develop a comprehensive strategy, with the participation of state agencies,

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producers, retailers, and consumers for waste prevention and reduction of discarded products in

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the state, which addresses the collection, recycling and reuse of products in a safe and

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environmentally sound manner;

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     (3) To promote the development of programs and infrastructure for the reuse and

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recycling of discarded products;

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     (4) To minimize costs incurred by Rhode Island municipalities to collect, dispose of, or

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recycle products as discarded by residents;

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     (5) To minimize the amount of waste generated in Rhode Island going to the landfill and

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other forms of waste disposal;

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     (6) To encourage, when appropriate, the design of products that are less toxic, more

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durable and more recyclable.

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     23-86-2. Legislative Findings. -- The general assembly hereby finds and declares:

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     (1) It is in the best interest of this state for producers, retailers, distributors, and end-users

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of products sold in Rhode Island to share responsibility for reducing the environmental and health

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impacts of a product over its life cycle, from design to management after the end of a product’s

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useful life;

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     (2) It is in the best interest of this state to determine a process for minimizing costs

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incurred by Rhode Island’s cities and towns for the management of discarded products;

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     (3) It is in the best interest of this state to institute a product stewardship system to

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encourage the design and manufacture of products that are more resource-efficient, more

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recyclable and less toxic and that result in less greenhouse gas emissions;

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     (4) It is in the best interest of this state for producers, retailers, distributors, and end-users

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to share responsibility for financing and managing programs within a statewide product

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stewardship system that serves urban and rural areas in Rhode Island and provides convenient

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opportunities for the collection, transportation, recovery and safe management of discarded

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products at no cost to the user, whenever possible; and

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     (5) It is in the best interest of this state to implement this chapter in accordance with the

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intent and purpose of the rules and regulations for reduction and recycling of commercial and

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non-municipal residential solid waste as promulgated by the department.

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     23-86-3. Definitions. -- As used in this chapter the following words shall, have the

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following meanings:

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     (1) “Brand” means a name, symbol, word or mark that identifies a product and attributes

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the product to the owner of the brand as the producer.

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     (2) “Covered entity” means any person with a discarded product as set forth in this

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chapter.

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     (3) “Department” means the Rhode Island department of environmental management.

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     (4) “Director” means the director of the Rhode Island department of environmental

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management or his or her designee.

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     (5) “Discarded product” means a product no longer wanted by its owner that is discarded

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or is intended to be discarded.

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     (6) “Disposition rate” means a quantitative measure that establishes on an annual basis

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the percentage of discarded products that are recycled, reused or properly disposed of relative to

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the total amount collected or total amount collected per capita in a product stewardship program.

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     (7) “Environmentally sound management practices” means policies as defined by rules

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adopted pursuant to section 23-86-10 that are implemented by a producer or a stewardship

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organization to ensure compliance with applicable laws and that address issues such as adequate

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record keeping, tracking and documenting the fate of materials within this state and beyond, on-

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site operations, security of facilities and materials, worker health and safety requirements,

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environmental protection, closure plans, adequate insurance and financial assurances.

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     (8) “Fluorescent lamp” means an electric lamp to which mercury is intentionally added

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during the manufacturing process, including, linear fluorescent and compact fluorescent.

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     (9) “Historical product” means any product that is not currently marketed or sold by the

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producer.

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     (10) “Orphan product” means a product that lacks a brand, for which the producer is no

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longer in business and has no successor in interest or for which the department of environmental

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management cannot identify a producer.

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     (11) “Performance goal” means a metric established by a producer or the department of

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environmental management to measure, on an annual basis, the performance of a product

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stewardship program in addressing recycling, reuse, safe disposal, environmental impacts or

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health impacts related to a product.

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     (12) “Person” means an individual, trust, firm, joint stock company, corporation

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(including a government corporation), partnership, association, the federal government or any

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agency or subdivision thereof, a state, municipality, commission, political subdivision of a state,

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or any interstate body.

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     (13) “Producer” means a person:

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     (i) Who manufactures a product and who sells, offers for sale or distributes that product

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in Rhode Island under the manufacturer’s own name or brand;

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     (ii) If paragraph (i) of this subdivision does not apply, who is not the manufacturer of the

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product but is the owner or licensee of a trademark or brand under which a product is sold or

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distributed in Rhode Island, whether or not the trademark is registered; or

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     (iii) If paragraphs (i) and (ii) of this subdivision do not apply, who imports the product

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into Rhode Island for sale or distribution.

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     (14) “Product” means:

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     (i) A single item or group of similar items specified in sections 23-86-5 or 23-86-6; and

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     (ii) Historical products and orphan products of the same type as the items described in

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subsection 23-86-5(a).

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     (15) “Product goal” means any change in the design and manufacture of a product that

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reduces or has the potential to reduce environmental or health impacts.

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     (16) “Product stewardship plan” means a statewide plan that describes a program for the

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collection, transportation, recycling, reuse and disposal of discarded products and any related

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performance goals and product goals and that is developed and provided for by a producer or

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group of producers.

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     (17) “Product stewardship program” means a statewide program financed and managed

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by a producer or group of producers that is based on an approved product stewardship plan and

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that addresses the environmental or health impacts of a product over the entire life cycle of that

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product.

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     (18) “Recycling” means the reuse of recovered resources in manufacturing, agriculture,

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power production, or other processes.

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     (19) “Retailer” means any person that offers new products for sale at retail through any

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means, including, but not limited to, remote offerings such as sales outlets, catalogs or the

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Internet.

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     (20) “Reuse” means the return of a product into the economic stream for use in the same

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kind of application as originally intended, without a change in the product’s form or function.

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     (21) “Sell” or “sale” means any transfer of title for consideration, including, but not

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limited to, remote sales conducted through sales outlets, catalogs or the Internet or any similar

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electronic means, but excluding lease arrangements.

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     (22) “Statewide product stewardship system” means the statewide system of product

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stewardship programs established and managed by producers or stewardship organizations that

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are established pursuant to state law or regulation.

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     (23) “Stewardship organization” means a corporation, nonprofit or other legal entity

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appointed by a producer or group of producers to act as an agent on behalf of the producer to

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administer a product stewardship program.

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     23-86-4. Rulemaking. -- The department may adopt rules as necessary to implement the

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provisions of this chapter.

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     23-86-5. Product stewardship rulemaking for fluorescent lamps. -- (a) The

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department shall develop and implement a statewide product stewardship system for fluorescent

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lamps.

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     (b) In developing and implementing the statewide product stewardship system under this

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section, the department shall collaborate with the federal government, other states, state agencies,

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local governments, producers, stewardship organizations, the retail industry, nonprofits, the solid

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waste industry, Rhode Island resource recovery corporation, environmental groups and covered

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entities.

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     (c) The department shall consult and coordinate with other states to achieve consistency

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in the development and implementation of the statewide product stewardship system.

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     (d) The department shall hold at least one public meeting where interested persons can

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provide comment regarding the products listed in this section. After review of any public

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comment and any relevant information, the department shall proceed with rulemaking as

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described in section 23-86-8 for the product listed in this section unless the product has been

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approved for a voluntary product stewardship program in accordance with section 23-86-6.

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     23-86-6. Voluntary Program Requirements. -- (a) The department may allow for the

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implementation of a voluntary product stewardship program for certain products, including

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fluorescent lamps, in lieu of the adoption and implementation of product specific rules if a

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producer or group of producers is able to demonstrate the following, in writing, to the

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department:

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     (1) Its ability to meet aggressive collection and recycling goals;

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     (2) Its ability to provide broad coverage and availability of collection and recycling

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opportunities;

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     (3) Its ability to provide for aggressive education and marketing of the program;

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     (4) Its ability to undertake comprehensive reporting on the success of the program;

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     (5) Its ability to succeed based upon past performance;

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     (6) Its ability to provide collection and recycling opportunities in a manner that will be as

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effective as a program operating under product specific rules promulgated by the department; and

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     (7) Its ability to identify a single point-of-contact.

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     (b) The department shall explain, in writing, the reasons for its decision to allow or not

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allow the implementation of a voluntary product stewardship program within sixty (60) days of

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receiving the written comments from the producer or group of producers.

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     (c) The department shall execute the implementation of a voluntary product stewardship

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program for certain products through the adoption of a Memorandum of Understanding (MOU).

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     (d) It shall be the policy of the department to encourage the development and

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implementation of voluntary product stewardship programs by producers in lieu of the adoption

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and implementation of product specific rules in accordance with section 23-86- 7.

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     23-86- 7. Adoption of product specific rules. -- (a) The department shall adopt product-

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specific rules prior to the implementation of product stewardship programs for products

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identified and listed pursuant to section 23-86-5.

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     (b)(1) The department shall appoint a product-specific workgroup to advise on the

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development of product-specific rules. The product-specific workgroup shall have at least nine

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(9) members and, at a minimum, one member shall represent each of the following groups:

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     (i) Producers;

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     (ii) Local governments;

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     (iii) Environmental groups;

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     (iv) Rhode Island resource recovery corporation;

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     (v) The solid waste or recycling industry;

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     (vi) Retailers; and

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     (vii) Consumers or covered entities.

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     (2) To encourage coordination with other states, the department may invite

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representatives from other states to participate in the product-specific workgroup proceedings as

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nonmembers.

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     (c) Product-specific rules developed and adopted pursuant to this section shall address

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the following:

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     (1) Definition of covered entities;

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     (2) Environmentally sound management practices;

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     (3) Performance goals and product goals as provided in section 23-86-13;

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     (4) The necessity for a disposal ban as determined by the specific characteristics of the

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product;

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     (5) Implementation date for the product stewardship program;

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     (6) Department’s administrative fees;

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     (7) Rules and responsibilities of any stakeholders that will be required to work with

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producers to develop a plan and implement a program; and

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     (8) Any other requirement directly relevant to the management of a product under a

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product stewardship program.

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     23-86-8. Requirements for Product Stewardship Plan. -- (a) Producers of product, and

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any other stakeholders included by regulation pursuant to section 23-89-7, specified in section 23-

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86-5 for which rules are adopted pursuant to section 23-86- 7, shall develop and submit a product

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stewardship plan to the department no later than one hundred and twenty (120) days following the

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adoption of the applicable product-specific rules, or no later than one hundred twenty (120) days

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prior to the sale or offer for sale of a product in Rhode Island. The product stewardship plan shall

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address the following:

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     (1) Information about participating producers and other participating stakeholders

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including, but not limited to:

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     (i) Contact information for producers and other participating stakeholders;

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     (ii) Contact information for the individual or entity submitting the plan;

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     (iii) A description of any stewardship organization that operates the product stewardship

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program; and

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     (iv) Producer’s products and associated brands covered by the product stewardship

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program.

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     (2) Information on performance goals and product goals as outlined in section 23-86-9,

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including, but not limited to:

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     (i) A detailed description of annual performance goals and, if applicable, product goals;

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and

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     (ii) Methods to measure and track compliance with annual performance goals, and if

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applicable, product goals.

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     (3) Collection system information, including, but not limited to, how the product

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stewardship program will be available, convenient, and accessible for all covered entities in urban

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and rural areas statewide;

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     (4) Implementation of environmentally sound management practices for the collection,

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transportation, recycling, reuse and disposal of discarded products.

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     (5) Management of collected products, including, but not limited to:

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     (i) How the collected products will be recycled, reused or, where required by the product-

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specific rules, properly disposed of; and

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     (ii) How all residuals that cannot be recycled or reused will be properly managed.

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     (6) Financial information, including, but not limited to:

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     (i) How the product stewardship program will be financed;

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     (ii) The mechanism for securing and distributing funds to cover administrative,

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operational and capital costs; and

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     (iii) Demonstration of adequate insurance and financial assurances for collection,

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transportation, recycling, reuse or disposal operations.

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     (7) Outreach and education to covered entities including, but not limited to:

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     (i) How to use and access the product stewardship program; and

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     (ii) How this information will be provided to collectors, retailers, and other interested

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parties.

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     (8) Public and stakeholder consultation, including, but not limited to:

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     (i) Opportunities for the public and other stakeholders to comment on the product

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stewardship plan prior to submission; and

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     (ii) Opportunities for the public and other stakeholders to comment on the

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implementation and operation of the product stewardship program.

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     (b)The department shall approve, approve with conditions, or reject the product

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stewardship plan within sixty (60) days of receiving the plan unless the department requests

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additional information regarding the plan.

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     (c) If a product stewardship plan is rejected and the producer wishes to submit a revised

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plan, the producer must do so within sixty (60) days of the date of the notice of rejection.

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     (d) Product stewardship plans shall be updated and submitted to the department in

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accordance with a schedule as established by the department, or at the request of the department.

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However, the product stewardship plan shall be updated at least once every four (4) years from

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the date on which the plan was first approved.

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     (e) If a producer joined an approved product stewardship plan, the producer shall notify

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the department prior to selling or offering for sale any products in Rhode Island.

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     (f) The department shall maintain a website listing of producers and brands covered by

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approved product stewardship plans and product stewardship programs, updated by the first (1st)

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day of each month.

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     (g) All product stewardship plans submitted and approved by the department shall be

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available to the general public through the website of the producer or the stewardship

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organization.

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     23-86-9. Annual Performance Goals. -- (a)(1) A producer shall establish annual

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performance goals for discarded products collected in a product stewardship program. A producer

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shall establish reasonable annual performance goals for the first two (2) years of the program’s

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operation, provided that the goals include the following:

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     (i) Total amount collected or total amount collected per capita;

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     (ii) Collection rate; and

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     (iii) Disposition rate.

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     (2) The department shall establish the appropriate metric to use in measuring annual

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performance goals in the product-specific rule.

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     (b) Failure to meet annual performance goals established by a producer for the first two

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(2) years of the operation of the product stewardship program shall not be subject to enforcement

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by the department. However, a producer shall establish, measure and report on the annual

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performance goal. By the third (3rd) year of the operation of the product stewardship program for

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a product, the department shall establish an enforceable, annual performance goal. A producer

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shall meet or exceed this goal. Producers shall continue to fully implement a product stewardship

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program even after an enforceable annual performance goal is achieved.

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     (c) A producer may establish product goals for products covered by a product

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stewardship program. These goals shall be specific to the product and intended to achieve

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changes that result in a reduction in environmental or health impacts. The department shall

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consider and make appropriate adjustments for any product goal adopted and successfully

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implemented that affects the ability of a producer to meet an enforceable annual performance

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goal.

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     23-86-10. Responsibilities of Producers. -- (a) Producers of products for which rules are

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adopted pursuant to section 23-86-7 and for which product stewardship plans meet the criteria

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established in section 23-86-8 and are approved by the department of environmental management

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shall:

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     (1) Operate, either individually or collectively with other producers, a product

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stewardship program; or

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     (2) Enter into an agreement with one or more stewardship organizations to operate, on the

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producer’s behalf, a product stewardship program; and

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     (3) Work cooperatively with the department, retailers, consumers, municipalities and the

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RI resource recovery corporation to implement a product stewardship program.

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     (b) Product stewardship programs shall be provided free of charge to covered entities

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when a product is sold or when the discarded products are delivered or collected for reuse,

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recycling or disposal throughout the calendar year unless the manufacturer can successfully

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demonstrate to the department that a fee is necessary for implementation of a product stewardship

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plan. Under no circumstances, however, shall a visible fee be allowed when products are

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collected for reuse, recycling, or disposal at the end of the products useful life. All discarded

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products collected for a program shall be reused or recycled unless the applicable product-

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specific rule provides that such products must be properly disposed of. A program shall meet or

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exceed the requirements for the collection of products set forth in the product stewardship plan

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required by section 23-86-8.

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     (c) Product stewardship programs shall include provisions for payment of administrative,

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operational and capital costs, including costs of collection, transportation, recycling, reuse and

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disposal of the products and their components. Producers shall provide adequate insurance and

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financial assurances for the safe operation of the product stewardship programs.

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     (d) Product stewardship programs shall meet or exceed the environmentally sound

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management practices provided in the applicable product-specific rules as well as any other

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applicable federal, state or local requirements regarding the management of the collected

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products.

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     (e) A producer may not sell or offer for sale in Rhode Island any product unless the

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product or, where appropriate, the product package or container, is labeled with a brand that is

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permanently affixed, readily visible, and the brand is included in an approved product

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stewardship plan.

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     (f) All product stewardship programs shall operate in accordance with:

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     (1) The product stewardship plan as approved by the department; and

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     (2) Sections 1 to 18 of this chapter and any applicable rules adopted pursuant to them.

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     (g) Product stewardship programs shall include an education and outreach component to

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promote the use of the program and to inform covered entities of available collection options.

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This information shall be provided to covered entities, retailers and other interested parties.

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     23-86-11. Requirement for Submittal of Reports. -- (a) A producer shall annually

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prepare and submit to the department a written report that describes how the product stewardship

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program was implemented in accordance with the provisions of this chapter and all applicable

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rules.

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     (b) The department may request that additional information be submitted in order to

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verify any reported accomplishments under the program.

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     23-86-12. Administrative Costs. -- The department may establish a schedule of fees to

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be paid by producers of products for which product specific rules are adopted pursuant to section

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23-86-7. Fees may be established in amounts to recover, but not exceed, costs incurred by the

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department in providing plan review, approval, program development, oversight and compliance

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for the products for which a producer is responsible. Fees collected by the department under this

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section shall be deposited in the environmental response fund established pursuant to section 23-

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19.1-24 .

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     23-86-13. Responsibilities of Retailers. -- (a) As of the implementation date established

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by the applicable product specific rule, a producer, retailer or other person may not sell the

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product or offer the product for sale to any person in this state unless the producer is participating

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in an approved product stewardship program.

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     (b) A retailer or other person complies with the requirements of this section if, on the date

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the product is ordered from the producer or its agent, the website of the department lists the

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producer, along with the product brand, as operating or participating in an approved product

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stewardship program.

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     (c) At the time of sale to a consumer, a producer, retailer or other person selling a product

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or offering a product for sale shall provide the consumer with information on where and how to

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recycle or dispose of the product through a product stewardship program.

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     23-86-14. Enforcement. -- The director is authorized to exercise all powers, direct and

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incidental, necessary to carry out the purposes of this chapter. The director may institute

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administrative or civil proceedings, or may request the attorney general to do the same, to enforce

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any provision of this chapter or any rule, regulation or order issued pursuant to this chapter.

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     23-86-15. Violations. -- A violation of any of the provisions of this law or any rule or

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regulation promulgated pursuant thereto shall be punishable, in the case of a first (1st) violation,

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by a civil penalty not to exceed one thousand dollars ($1,000). In the case of a second (2nd) and

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any further violation, the liability shall be for a civil penalty not to exceed five thousand dollars

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($5,000) for each violation.

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     23-86-16. Reporting by the department. -- (a) The department shall annually, no later

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than January 31 of each year, submit an annual report of its activities pursuant to this chapter.

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The report shall include: (1) An update on the implementation of this chapter and current state of

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compliance by collectors, processors, producers and retailers during the previous year; (2)

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Recommendations to the general assembly and the governor regarding proposed changes to this

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chapter, or any other chapter of the general laws, or any regulations promulgated pursuant

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thereto; and (3) A summary of how the department expects to proceed with implementation of

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this chapter in the coming year. The report shall be submitted to the governor, the president of the

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senate, the speaker of the house, and the house and senate chairs of the committees on the

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environment.

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     (b) The department, at the request of the house and/or senate chairs of the committees on

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the environment, shall make a presentation to interested members of the general assembly on the

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status of implementation of this chapter.

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     23-86-17. Evaluation of Federal Requirements. -- The department shall evaluate any

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federal law that establishes a national program to manage any products specified in sections 5 and

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6 of this chapter through a product stewardship approach. If the department determines that the

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federal law substantially meets or exceeds the requirements and intent of sections 1 to 18 of this

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chapter, the department shall include information on the federal law in the next annual report.

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     23-86-18. Requirement to Adopt Rules. -- The department may adopt rules before the

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operative date specified or take any action before that date that is necessary to carry out the

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provisions of this chapter.

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     23-86-19. Implementation. -- No later than December 31, 2012, the department shall

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begin developing and implementing the statewide product stewardship system as described in this

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chapter.

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     23-86-20. Multistate Implementation. -- The department may participate in the

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establishment of a regional multistate organization or compact to assist in carrying out the

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requirements of this chapter.

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     SECTION 2. This act shall take effect upon passage.

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LC01303

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - PRODUCT STEWARDSHIP FOR DISCARDED

PRODUCTS

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     This act would establish a predictable regulatory environment in which the department of

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environmental management, in coordination with producers, key stakeholders and an advisory

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committee, would implement a set of comprehensive producer responsibility regulations

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governing the disposal of fluorescent lamps.

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     This act would take effect upon passage.

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LC01303

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