2022 -- H 7279

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LC003789

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

____________

A N   A C T

RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RESPONSIBILITY

FOR PACKAGING

     Introduced By: Representatives Bennett, Cortvriend, Carson, Fogarty, McEntee,
Speakman, Phillips, Ruggiero, Casimiro, and Williams

     Date Introduced: February 02, 2022

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

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

amended by adding thereto the following chapter:

CHAPTER 97

EXTENDED PRODUCER RESPONSIBILITY FOR PACKAGING

     23-97-1. Short title.

     This chapter shall be known and may be cited as the "Extended Producer Responsibility

for Packaging".

     23-97-2. Findings.

     (1) Towns and cities in Rhode Island bear much of the burden of recycling and disposing

of post-consumer waste, but they have little control over sources of waste, particularly packaging

waste.

     (2) Unrecyclable single-use packaging is a common contaminant in recycling loads in

Rhode Island. Recycling loads rejected from the Rhode Island resource recovery materials

recycling facility contribute to waste and recycling costs borne by towns and cities.

     (3) Rhode Island’s central landfill is projected to reach capacity by 2034. Single-use

packaging makes up approximately sixteen percent (16%) of the waste buried in the landfill each

year.

     (4) Single-use plastic packaging is a significant contributor to litter and ocean debris. As

of 2021, more than sixteen million (16,000,000) tons of plastic waste washes into the ocean each

year.

     (5) Single-use packaging has significant environmental impacts on a local and global scale,

including polluting our waters, contributing to climate-damaging emissions, and creating litter.

     (6) It is in the best interests of the health, safety, and welfare of residents and visitors to

Rhode Island to protect our environment and natural resources by reducing non-reusable, non-

recyclable, and toxic packaging and to achieve a more equitable relationship between packaging

producers and local governments and communities.

     23-97-3. Definitions.

     As used in this chapter:

     (1) "Brand" means a name, symbol, word, or mark that identifies a product, rather than its

components, and attributes the product to the owner of the brand.

     (2) "Break-even point" means the minimum number of times a reusable product must be

reused to achieve the same overall environmental impact as the non-reusable (disposable) product

it replaces, based on a life cycle assessment of the product's impacts from extraction through

production and through disposal or end of life management.

     (3) "Compost" means a stable humus-like material produced by the controlled biological

decomposition of organic matter through active management, but shall not mean sewage, septage,

or materials derived from sewage or septage.

     (4) "Compostable" means the controlled aerobic biological decomposition of organic

matter through active management to produce compost. Packaging is only considered compostable

if the material is certified to meet this definition by a third-party certifier and is accepted and

processed into compost by eighty percent (80%) of commercial compost facilities within the state.

     (5) "Contaminant" means a material set out for recycling collection that is not properly

prepared and on the list of materials accepted for recycling collection by a recycling collection

program; or a material shipped to a recycling end market that is not accepted or desired by that end

market.

     (6) "Contamination" means the presence of one or more contaminants in a recycling

collection or commodity stream in an amount or concentration that negatively impacts the value of

the material or negatively impacts a processor's ability to sort that material.

     (7) "Department" means the Rhode Island department of environmental management.

     (8) "Effective date" means the date which this act is passed into law.

     (9) "European article number" or "EAN" means a thirteen (13) digit barcode used for

product identification purposes, also referred to as an international article number.

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     (10) "Franchisee" means a person that is granted a license by a franchisor to use the

franchisor's trade name, service mark, or related characteristic and to share in the franchisor's

proprietary knowledge or processes pursuant to an oral or written arrangement for a definite or

indefinite period.

     (11) "Franchisor" means a person that grants to a franchisee a license to use the person's

trade name, service mark, or related characteristic and to share in the person's proprietary

knowledge or processes pursuant to an oral or written arrangement for a definite or indefinite

period.

     (12) "Low-volume producer" means a producer that sold, offered for sale, or distributed

for sale in or into the state during the prior calendar year products contained, protected, delivered,

presented, or distributed in or using more than one, but less than fifteen (15) tons of packaging

material in total.

     (13) "Material recovery facility" or "facility" or "MRF" means a facility that receives,

processes, and sells or otherwise distributes post-consumer materials for recycling.

     (14) "Municipality" means a city, town, or regional association acting on behalf of a city

or town.

     (15) "Native American tribe" means a body of Native Americans of the same or similar

race united in a community under one leadership or government and inhabiting a particular

territory.

     (16) "Non-reusable packaging" means packaging that does not meet the definition of

reusable.

     (17) "Packaging material" means any part of a package or container, including material

that is used for the containment, protection, handling, delivery, transport, distribution, and

presentation of a product that is sold, offered for sale, imported, or distributed in the state, including

through Internet transactions. Bags and secondary or transport packaging are included within this

definition.

     The term "packaging material" does not include:

     (i) A discrete type of material, or category of material that includes multiple discrete types

of material, intended to be used for long-term storage or protection of a durable product that can be

expected to be usable for that purpose for a period of at least five (5) years;

     (ii) A discrete type of material, or category of material that includes multiple discrete types

of material, that is a beverage container; or

     (iii) Packaging that is reusable.

     (18) "Packaging responsibility fund" or "fund" means a privately held account established

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and managed by the producer responsibility organization pursuant to § 23-97-12.

     (19) "Person of color" means a person who is of Native American, Alaskan Native, Asian,

Black, Latinx, or Pacific Islander heritage.

     (20) "Political subdivision" means any municipal corporation, governmental subdivision

of the state, local government unit, special district, or local or regional board, commission, or

authority authorized by law to plan or provide for waste management services for a specific

geographical area.

     (21) "Post-consumer recycled material" means new material produced using material

resulting from the recovery, separation, collection, and reprocessing of material that would

otherwise be disposed of or processed as waste and that was originally sold for consumption.

     "Post-consumer recycled material" does not include post-industrial material or pre-

consumer material, or material generated by means of combustion, incineration, pyrolysis,

gasification, solvolysis, chemical recycling, or any high-heat or chemical conversion process.

     (22) "Producer" means:

     (i) An entity that manufactures or uses in a commercial enterprise, sells, offers for sale, or

distributes the packaging material in the state under the brand of the manufacturer; or

     (ii) An entity that is not the manufacturer of the packaging material but is the owner or

licensee of a trademark under which the covered product is used in commercial enterprise, sold,

offered for sale, or distributed in the state, whether or not the trademark is registered; or

     (iii) An entity that imports the packaging material into the United States or the state for use

in a commercial enterprise, sale, offer for sale, or distribution in the state.

     (iv) "Producer" includes a franchisor of a franchise located in the state but does not include

the franchisee operating that franchise.

     (v) "Producer" includes a low-volume producer.

     (vi) "Producer" does not include any entity exempted from the program under § 23-97-5.

     (23) "Producer responsibility organization" or "PRO" means the not-for-profit entity

contracted by the department and authorized to collect and distribute producer fees.

     (24) "Producer responsibility program" or "program" means the program implemented

pursuant to § 23-97-4 by the producer responsibility organization to assess and collect fees from

producers based on the amount, by weight, of non-reusable packaging sold, offered for sale, or

distributed for sale in or into the state by each producer to pay for investments in product redesign,

refillable and reusable systems, fess to municipalities and political subdivisions, for certain

recycling and waste management programs, and investments in reuse and recycling education and

infrastructure.

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     (25) "Readily-recyclable" means, that the department has determined that the packaging

material:

     (i) Can be sorted by entities that process recyclable material generated in the state; and,

     (ii) Has a consistent market for purchase, as based on data from the prior two (2) calendar

years. "Consistent market for purchase" means, with respect to a type of packaging material, that

entities processing recyclable material are willing to purchase full bales of that type of fully sorted

packaging material in quantities equal to or in excess of the supply of that fully sorted packaging

material.

     "Readily-recyclable" does not include packaging material categories or types that facilities

accept in low qualities or sort out of material during additional processing steps; if facilities cannot

aggregate or sell a full bale of a specific packaging material category or type due to a lack of market

or inability to feasibly separate those materials during additional processing steps, that packaging

type is not readily-recyclable. Packaging material categories or types shall not be considered

readily-recyclable, generally recyclable, compostable, or reusable if they contain a toxic substance

as defined in this section.

     (26) "Recycling" means the series of activities by which a covered product is:

     (i) Collected, sorted, and processed;

     (ii) Converted into a raw material with minimal loss of material quality; and

     (iii) Used in the production of a new product to replace the use of virgin materials,

including the original product.

     "Recycling" does not include energy recovery or energy generation by means of

combustion, incineration, pyrolysis, gasification, solvolysis, waste to fuel or any high-heat or

chemical conversion process; or landfill disposal of discarded covered products or discarded

product component materials.

     (27) "Returnable" means that packaging that can be conveniently returned after use to a

reuse or return system. For the purposes of this definition, a reuse or return system must have an

average annual return rate of no less than eighty percent (80%) for each covered product.

     (28) "Reusable," with respect to a covered product, means that a product is:

     (i) Designed to be used repeatedly and is returnable for a number of use cycles that exceeds

the environmental break-even point with non-reusable products, as specified in § 23-97-18;

     (ii) Free of toxic substances, as specified in § 23-97-20;

     (iii) Safe for washing and sanitizing according to applicable state food safety laws; and

     (iv) Capable of being recycled at the end of use, with the exception of ceramic products.

     (29) "State" means the State of Rhode Island.

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     (30) "Toxic substance" means a chemical substance or class of related chemical substances

identified in § 23-97-20, or a chemical substance or class or related chemical substances designated

by the department on the basis of credible scientific evidence that it may have one or more of the

following hazard characteristics:

     (i) Carcinogenic, mutagenic, or developmental or reproductive toxicant;

     (ii) Disrupt the endocrine system;

     (iii) Damage the nervous system, immune system, or organs or cause other systemic

toxicity;

     (iv) Persistent, bioaccumulative, and toxic;

     (v) Highly persistent and highly mobile;

     (vi) Persistent, mobile, and toxic; or,

     (vii) Persistent and very bioaccumulative.

     (31) "Unit" in reference to packaging means each discrete component of a package or

container, including material that is used for the containment, protection, handling, delivery,

transport, distribution, and presentation of a product that is sold, offered for sale, imported, or

distributed in the state, including through Internet transactions.

     (32) "Universal product code" or "UPC" means a standard for encoding a set of lines and

spaces that can be scanned and interpreted into numbers for product identification purposes.

"Universal product code" includes any industry-accepted barcode used for product identification

purposes in a manner similar to a UPC, including, but not limited to, an EAN.

     23-97-4. Producer responsibility program.

     (a) It is hereby established a producer responsibility program by which producers of

packaging material, participating in a producer responsibility organization, are required to make

changes to their product design to reduce packaging consumption and waste, and are required to

pay fees based on the amount, by weight and type of packaging material sold, offered for sale, or

distributed for sale in or into the state.

     (b) The producer responsibility organization shall assess and collect fees from producers,

and create and manage the packaging responsibility fund to be used for eligible projects that reduce

packaging waste by investing in reuse and refill systems, recycling infrastructure, and reuse, refill,

and recycling education in the state.

     (c) The department shall conduct a foundational needs assessment within the state to

determine the barriers and opportunities to reduce packaging waste and increase waste reduction,

reuse, refilling and recycling.

     23-97-5. Producer responsibility and exemptions of small producers.

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     (a) Within two (2) calendar years of the effective date, a producer may not sell, offer for

sale, or distribute for sale in or into the state a product contained, protected, delivered, presented,

or distributed in or using packaging material for which the producer has not complied with all

applicable requirements of this chapter.

     (b) Notwithstanding a producer's failure to comply with all applicable requirements of this

section for a type or types of packaging material used to contain, protect, deliver, present or

distribute a product, the department may authorize the sale or distribution for sale in or into the

state of another product or products of the producer that are contained, protected, delivered,

presented or distributed in or using a different type or types of packaging material for which that

producer has complied with all applicable requirements of this section.

     (c) In accordance with the rules and regulations adopted by the department, a producer

shall annually report to the producer responsibility organization:

     (1) The total amount of packaging material, by weight, sold, offered for sale, or distributed

for sale in or into the state by the producer in the prior calendar year;

     (2) The total amount of packaging material, by unit, sold, offered for sale, or distributed

for sale in or into the state by the producer in the prior calendar year, pursuant to the requirements

of § 23-97-17;

     (3) The percentage of all packaging material the producer sold, offered for sale, or

distributed for sale into the state through Internet transactions; and

     (4) All information necessary for the producer responsibility organization to meet its

obligations pursuant to § 23-97-8.

     (d) In accordance with the rules and regulations adopted by the department pursuant to §

23-97-26, a producer shall annually report to the department information necessary for the

department to make a determination of the producer’s compliance with:

     (1) The non-reusable packaging reduction requirements of § 23-97-17;

     (2) The reuse and refill system requirements of § 23-97-18;

     (3) The recycling or post-consumer recycled material requirements of § 23-97-19;

     (4) The toxic substances in packaging requirements of § 23-97-20; and

     (5) The labeling requirements of § 23-97-25.

     (e) Each producer shall pay fees, as set by the department pursuant to § 23-97-10, to the

producer responsibility organization to meet the obligations of this chapter and the costs set out in

the needs assessment.

     (f) Notwithstanding any provision of this section to the contrary, a producer is exempt from

the requirements and prohibitions of this chapter in any calendar year in which:

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     (1) The producer realized less than two million dollars ($2,000,000) in total gross revenue

during the prior calendar year; or

     (2) The producer sold, offered for sale, or distributed for sale in or into the state during the

prior calendar year products contained, protected, delivered, presented, or distributed in or using

less than one ton of packaging material in total.

     (g) A producer claiming an exemption under this section shall provide to the department

sufficient information to demonstrate that the claimant meets the requirements for an exemption

under this section within thirty (30) days of receiving a request from the department to provide such

information.

     23-97-6. Selection of the producer responsibility organization.

     (a) Consistent with the requirements of this section, the department shall select and enter

into a contract with one producer responsibility organization to operate a producer responsibility

program. The effective date of this contract shall be deemed the selection date of the producer

responsibility organization for purposes of this chapter including, but not limited to, §§ 23-97-17

and 23-97-19.

     (b) Consistent with applicable competitive bidding requirements under state purchasing

laws and following the initial adoption of the rules and regulations by the department pursuant to

§ 23-97-26 and chapter 35 of title 42 ("administrative procedures") to implement this section, the

department shall issue a request for proposals for the operation of a producer responsibility

program. The proposals must be required to cover a ten (10) year operation of the program by a

successful bidder and must be required to include, at a minimum:

     (1) A description of how the bidder will administer the program including the mechanisms

or processes to be developed with input from producers, by which a producer may request and

receive assistance from the producer responsibility organization in the reporting of required

information and regarding methods by which packaging material used by a producer may be

modified so as to reduce the producer’s fee obligations and comply with the targets for reduction

and/or reuse and refill required by § 23-97-18, and targets for recycling or post-consumer recycled

material required by § 23-97-19;

     (2) A description on how the bidder intends to solicit and consider input from interested

persons, including, but not limited to, producers, municipalities, political subdivisions,

environmental organizations, waste management and recycling establishments, and reuse and refill

system operators regarding the bidder’s operation of the program, if selected;

     (3) A description of how the bidder intends to establish and manage the packaging

responsibility fund, including, but not limited to:

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     (i) The staffing the bidder intends to use for management of the fund; and

     (ii) A plan for providing technical support to interested persons regarding use of the fund;

     (4) A proposed financial assurance plan that ensures all funds held in the packaging

responsibility fund are immediately and exclusively forfeited and transferred to or otherwise made

immediately available to the department when the producer responsibility organization’s contract

with the department is terminated by the department, or expires, unless the producer responsibility

organization enters into a new contract with the department prior to the expiration of the

organization’s existing contract.

     (5) A proposed budget outlining the anticipated costs of operating the producer

responsibility program, including identification of any start-up costs that will not be ongoing and a

description of the method by which the bidder intends to determine and collect producer fees during

the initial start-up period of program operation to fund the program's operational costs during that

initial start-up period, and to reimburse or require additional fees by those producers subsequent to

that initial start-up period based on producer reporting of the actual amount of packaging material

sold, offered for sale or distributed for sale in or into the state by each producer during that initial

start-up period. The proposed budget under this subsection may overestimate the cost of operating

the program during its initial start-up period of operation but must describe the method and basis

for any overestimate; and

     (6) A certification that the bidder will not share, except with the department, information

provided to the bidder by a producer that is proprietary information and that is identified by the

producer as proprietary information. The certification must include a description of the methods by

which the bidder intends to ensure the confidentiality of such information.

     (c) In accordance with applicable requirements of state purchasing laws, the department

shall enter into a contract with a bidder that has submitted a proposal in accordance with the

requirements of this section, the term of which must cover ten (10) years of operation of the

producer responsibility program by the producer responsibility organization. The department shall

select the producer responsibility organization within one year of the date in which the final rules

are promulgated pursuant to § 23-97-26.

     23-97-7. Obligations of the producer responsibility organization.

     (a) The producer responsibility organization shall:

     (1) Collect and compile data from producers as required in § 23-97-5.

     (2) Collect fees due from producers as defined in § 23-97-5.

     (3) Use fees collected from producers to fund the needs assessment as conducted by the

department and as defined in § 23-97-11.

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     (4) Distribute funds based on the needs assessment as defined in § 23-97-11 and the

requirements for managing the packaging responsibility fund pursuant to § 23-97-12.

     (5) Offer technical support to producers.

     (6) Fund third-party, independent audits of inbound and outbound recyclable material

generated in the state, disposal of inbound and outbound materials, and litter audits. The audits

must be conducted at least annually and must include a description of how the audits meet the

requirements of the department’s rules and regulations.

     (7) Comply with the rules and regulations as promulgated by the department to carry out

the provisions of this chapter.

     (b) The producer responsibility organization shall not make campaign contributions, lobby,

or bring administrative or court actions against the department or any other party in connection

with the program.

     23-97-8. Reporting requirements for the producer responsibility organization.

     (a) In accordance with the rules and regulations as adopted by the department, the producer

responsibility organization shall submit annually to the department, and make available on its

publicly accessible website, a report that is presented in a format that can be easily understood by

the public and includes, at a minimum, the following information for the prior calendar year:

     (1) Contact information for the producer responsibility organization;

     (2) A list of participating producers and the brands and the UPCs of products associated

with those producers;

     (3) The total amount, by both weight and number of units, of each type of packaging

material sold or offered for sale within the state;

     (4) The total amount, by both weight and number of units, of packaging material that is

reusable;

     (5) A complete accounting of payments made to and by the producer responsibility

organization during the prior calendar year,

     (6) A list of any producer noncompliance, if known by the producer responsibility

organization, and the steps the producer responsibility organization is taking to bring noncompliant

producers into compliance.

     (7) A description of the infrastructure and education investments made by the producer

responsibility organization in prior calendar years and an evaluation of how those investments were

designed to increase access to recycling and refill or reuse systems in the state.

     (8) An assessment of the progress made toward the achievement of any program goals,

including, but not limited to, the requirements under §§ 23-97-16 and 23-97-18, as well as any

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goals established by rule or regulation pursuant to § 23-97-26.

     (9) An assessment of whether the fee schedule for producers adopted by the department by

rule or regulation pursuant to § 23-97-26 has been successful in incentivizing improvements to the

design of packaging material, including increases in the percentage of reusable packaging and

decreases in overall quantity of packaging by number of units.

     (10) An assessment of whether the investments made pursuant to §§ 23-97-14 through 23-

97-16 have been successful in increasing the amount of packaging material that is readily

recyclable, increasing the transition from non-reusable to reusable packaging, and incentivizing

improvements to the design of packaging material.

     (11) Any proposals for changes to the program or investments in education and

infrastructure designed to reduce the amount of packaging material used, increase access to

recycling, increase the recycling of or recyclability of packaging material, reduce program costs,

or otherwise increase program efficiency, which may include an analysis of best practices for

municipal recycling programs and material recovery facilities.

     (12) Results of representative inbound and outbound audits of recyclable material

processed and sold by materials recycling facilities in the state, waste characterization of municipal

solid waste being disposed of in the state, and litter audits.

     (13) The results of a third-party financial audit of the producer responsibility organization.

     (14) Any additional information required by the department.

     23-97-9. Responsibilities of the department.

     (a) Within one year of the effective date, the department shall promulgate rules and

regulations setting fees for producers to pay in accordance with §§ 23-97-10 and 23-97-26, after

consulting with multiple stakeholders, including municipalities, businesses, institutions, and other

extended producer responsibility programs. Fees shall be set at a rate that will drive reductions in

overall packaging, incentivize adoption of reuse systems, increase post-consumer recycled

material, and promote the use of recyclable packaging.

     (b) The department shall revise fees every three (3) years, beginning three (3) years after

the first set of fees are established, to reflect new data received about material use and management,

or whenever the targets set in §§ 23-97-18 and 23-97-19 are not met to drive compliance with such

targets.

     (c) Within six (6) months of the effective date, the department or its agents shall conduct a

reduction, reuse, and recycling needs assessment to identify barriers and opportunities for reducing,

reusing and recycling packaging in accordance with § 23-97-11.

     (d) The department shall evaluate the program each year to ensure its proper functioning

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and prevent fraud, waste, or abuse in the expenditure of funds.

     23-97-10. Assessment of fees.

     (a) The department shall promulgate rules and regulations under § 23-97-26 setting forth

the manner in which producer fees on packaging materials must be calculated. Producer fees shall

be calculated based on:

     (1) The packaging material type; and

     (2) The quantity of each packaging material type, by weight, that the producer sells, offers

for sale, or distributes in the state.

     (b) This list of packaging material type must include, at a minimum, the following

materials:

     (1) Paper;

     (2) Cardboard;

     (3) Corrugated cardboard;

     (4) Generic paper/cardboard;

     (5) Wood;

     (6) Glass;

     (7) Polypropylene;

     (8) Polyethylene terephthalate (PET);

     (9) High Density Polyethylene (HDPE);

     (10) Expanded polystyrene (EPS);

     (11) Low Density Polyethylene (LDPE);

     (12) Polystyrene;

     (13) Bio-plastics;

     (14) Plastic film;

     (15) Other plastics;

     (16) Steel or ferrous;

     (17) Aluminum;

     (18) Tinplate;

     (19) Generic metals; or

     (20) Ceramics.

     (c) The fees shall reflect the net cost of curbside collection, commercial collection, or

transfer station operation, on-site processing cost for each readily-recyclable packaging material

types, management cost of non-readily-recyclable packaging, transportation cost for each

packaging material, the cost of the department’s administration of the requirements of this chapter,

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the cost of the producer responsibility organization in administration of the program, and any other

cost factors determined by the department.

     (1) Fees shall be higher for packaging material that is not readily-recyclable.

     (2) The fees for each type of packaging material will be eco-modulated and structured to

promote the environmental beneficial packaging design.

     Fees Type of Package

     Fees are

     increased Packaging is not readily-recyclable

     Fees are

     lowered Packaging is readily-recyclable

      Packaging is compostable

      Packaging incorporates post-consumer recycled material

     No fee Packaging is reusable or refillable

     23-97-11. Statewide reduction, reuse and recycling needs assessment.

     (a) Within six (6) months of the effective date of this chapter, the department, its agents,

or a third party shall conduct a statewide reduction, reuse, and recycling needs assessment, hereafter

"needs assessment", to identify barriers and opportunities for reducing, reusing, and recycling

packaging.

     (b) Consistent with applicable competitive bidding requirements under state purchasing

laws, the department shall issue a request for proposals to conduct the needs assessment. The

proposals must include, at a minimum, a description of how the bidder will conduct a statewide

needs assessment that, at a minimum, includes an evaluation of:

     (1) Current barriers affecting the creation of reduction, reuse and refill programs;

     (2) Opportunities for the creation of reduction, reuse and refill programs;

     (3) Current needs affecting recycling access and availability in the state;

     (4) Opportunities to improve access to recycling in the state;

     (5) The capacity, cost and needs associated with the collection and transportation of

recyclable material in the state;

     (6) The processing capacity, market conditions and opportunities in the state and regionally

for recyclable material;

     (7) Barriers to the marketability of recyclable materials generated in the state, and potential

solutions;

     (8) The amount by weight of material that is recycled by each material recovery facility

that accepts packaging material from the state;

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     (9) Consumer education needs in the state with respect to reuse and refill systems, recycling

and reducing contamination in collected recyclable material;

     (10) The net cost of curbside collection, commercial collection, or transfer station

operation, on-site processing cost for each readily-recyclable packaging material types,

management cost of non-readily-recyclable packaging, transportation cost for each packaging

material and any other cost factors determined by the department;

     (11) The availability of opportunities in the recycling and reuse systems for women and

persons of color; and

     (12) The sufficiency of local government requirements related to multifamily recycling

services and their implementation.

     (c) The department is responsible for updating and revising the needs assessment every

three (3) years. The money needed to update the needs assessment shall be funded by the packaging

responsibility fund.

     (d) The department shall report the results of the study to the general assembly.

     23-97-12. Packaging responsibility fund.

     (a) In accordance with the provisions of this section, and the rules and regulations as

adopted by the department, the producer responsibility organization shall establish and manage a

packaging responsibility fund. The producer responsibility organization shall deposit into the fund

all fees received from producers in accordance with § 23-97-4, and all penalties collected pursuant

to § 23-97-27, and rules and regulations promulgated by the department pursuant to § 23-97-26.

     (b) Beginning one year after the first payment of fees by producers, pursuant to §§ 23-97-

8 and 23-97-10, and annually thereafter, the producer responsibility organization shall reimburse

the department, using money from the packaging responsibility fund, for the costs associated with

administering the requirements of this chapter and its implementing rules and regulations, pursuant

to § 23-97-13. This reimbursement includes costs associated with performing, revising and

updating the needs assessment as required by § 23-97-11. This reimbursement shall cover any costs

incurred by the department in adopting rules and regulations, and in administering and enforcing

this section prior to the effective date of the contract entered into by the department and the

producer responsibility organization pursuant to § 23-97-6;

     (c) Beginning one year after the first payment of fees by producers, pursuant to §§ 23-97-

8 and 23-97-10, and annually thereafter, the producer responsibility organization shall retain a

portion of the money in the packaging responsibility fund to cover the costs associated with its

administration of the producer responsibility organization, as required by § 23-97-13. This

reimbursement may include costs associated with the formation of the producer responsibility

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organization.

     (d) Beginning one year after the first payment of fees by producers, pursuant to §§ 23-97-

8 and 23-97-10, and annually thereafter, the producer responsibility organization shall distribute all

money in the packaging responsibility fund remaining after the reimbursements required pursuant

to subsections (b) and (c) of this section, in the following amounts and for the following purposes:

     (1) Fifty percent (50%) of the funds shall be directed for recycling infrastructure and

education projects in accordance with § 23-97-14;

     (2) Twenty-five percent (25%) of the funds shall be directed for refill and reuse

infrastructure and education projects in accordance with § 23-97-15; and

     (3) Twenty-five percent (25%) of the funds shall be distributed to all municipalities, or

where appropriate, political subdivisions, and Native American tribes, in the state, to address

recycling needs of that community as determined by the results of the needs assessment; provided

that the municipality, political subdivision, or Native American tribe provides recycling services to

all residents within its jurisdictional control.

     (e) Upon completion of the update to the needs assessment every three (3) years, the

department shall adjust the percentage of funding to be distributed to the categories as defined in

subsection (d) of this section.

     23-97-13. Administrative expenses.

     (a) Beginning one year after the first payment of fees by producers, pursuant to §§ 23-97-

8 and 23-97-10, and annually thereafter, the producer responsibility organization, pursuant to § 23-

97-12, shall reimburse the department for all costs incurred in administering the requirements of

this chapter, including, but not limited to:

     (1) Administration of its contract with any third party certifier;

     (2) Costs incurred by the department in managing its contact with the producer

responsibility organization;

     (3) Costs incurred in the implementation of rules and regulations;

     (4) Costs incurred reviewing proposals for investments pursuant to §§ 23-97-14 and 23-

97-15; and

     (5) Costs incurred in reviewing compliance information from the producer responsibility

organization and individual producers.

     (b) Beginning one year after the first payment of fees by producers, pursuant to §§ 23-97-

8 and 23-97-10, and annually thereafter, pursuant to § 23-97-12, the producer responsibility

organization shall retain a portion of the funds in the packaging responsibility fund to cover the

costs associated with administering the producer responsibility program, which must be annually

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verified by a third-party financial audit paid for by the stewardship organization as required by §

23-97-8.

     23-97-14. Investment in recycling infrastructure and education.

     (a) In accordance with the provisions of this chapter, and the rules and regulations

promulgated by the department pursuant to § 23-97-26, any interested person, municipality,

business, organization, or institution may apply to the producer responsibility organization to

receive funding to carry out a project or projects related to improving recycling infrastructure or

provide educational programing or materials regarding recycling pursuant to § 23-97-12.

     (b) A project is considered eligible only if it fulfills one or more needs identified in the

needs assessment conducted by the department or its agents pursuant to § 23-97-11 and helps

producers meet the requirements of § 23-97-19.

     (c) The producer responsibility organization must receive approval from the department

for any award of funding.

     (d) The department shall approve or deny a proposed request for funding within ninety (90)

days of receipt of the recommendation from the producer responsibility organization.

     23-97-15. Investment in waste reduction, reuse and refill infrastructure and

education.

     (a) In accordance with the provisions of this section, and the rules and regulations

promulgated by the department, any interested person, municipality, business, organization, or

institution may apply to the producer responsibility organization to receive funding to carry out a

project or projects related to improve waste reduction or reuse and refill infrastructure or provide

education regarding waste reduction or reuse and refill infrastructure pursuant to § 23-97-12.

     (b) Funds may be used for investment in collection systems, washing systems,

redistribution systems, technology for tracking and data collection, capital expenditures on new

and emerging technology, equipment, and facilities, or for investment in public outreach and

education in ways that increase access and understanding of reuse and refill systems throughout the

state.

     (c) Any investment in reuse or refill infrastructure or education must meet at least one of

the following requirements:

     (1) Increase the transition of the packaging material from non-reusable to reusable or

refillable in accordance with § 23-97-18;

     (2) Increase access to reuse and refill infrastructure in the state;

     (3) Provide reuse and refill instructions that are, to the extent practicable, consistent

statewide, easy to understand, and easily accessible; or

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     (4) Provide for outreach and education that are coordinated across programs or regions to

avoid confusion for consumers and developed in consultation with local governments and other

stakeholders.

     (d) Any investment must demonstrate how it will help meet the targets defined in § 23-97-

18.

     (e) The producer responsibility organization shall receive approval from the department

for any award of funding.

     (f) The department shall approve or deny a proposed request for funding within ninety (90)

days of receipt of the recommendations from the producer responsibility organization.

     23-97-16. Funding to municipalities or political subdivisions and Native American

tribes.

     (a) The department shall promulgate rules and regulations pursuant to chapter 35 of title

42 specifying the manner in which the producer responsibility organization shall provide funding

to all municipalities, or where appropriate, political subdivisions, and Native American tribes in

the state to address recycling needs of the municipality or political subdivision, and Native

American tribe, as determined by the needs assessment.

     (b) Municipalities, political subdivisions, and Native American tribes are only eligible to

receive such funding if they provide recycling services to all residents or members within their

jurisdictional control.

     (c) Two (2) or more municipalities, political subdivisions, or Native American tribes that

provide recycling services may elect to jointly receive funding provided that they can demonstrate

that their recycling services are interconnected.

     23-97-17. Non-reusable packaging reduction requirements.

     (a) A producer shall reduce the total amount by unit, on average and in the aggregate, of

non-reusable packaging across its brand in accordance with the following schedule:

     (1) Ten percent (10%), two (2) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6;

     (2) Twenty percent (20%), four (4) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6;

     (3) Thirty percent (30%), six (6) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6;

     (4) Forty percent (40%), eight (8) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6; and,

     (5) Fifty percent (50%), ten (10) years after the selection of the producer responsibility

LC003789 - Page 17 of 29

organization by the department pursuant to § 23-97-6.

     (b) The reductions required by subsection (a) of this section shall be measured against the

total amount of packaging the producer sold, offered for sale, or distributed for sale in the state

during the calendar year of the effective date. For producers who did not sell, offer for sale, or

distribute for sale any packaging during the calendar year of the effective date, the reductions

required by subsection (a) of this section shall be measured against the first calendar year for which

there is data regarding the amount of packaging the producer sold, offered for sale, or distributed

for sale in the state.

     (c) These reductions can be achieved by eliminating non-reusable packaging, including

secondary packaging, or by transitioning away from non-reusable packaging to a reuse and refill

model.

     (d) The department is required to promulgate rules and regulations that address the manner

in which each producer will report its compliance with the requirements of this section.

     23-97-18. Criteria for number of uses in reuse and refill systems.

     In accordance with the provisions of this section, the department is required to promulgate

rules and regulations that specify the minimum number of reuse or refill cycles required for each

type of packaging material to be considered reusable or refillable, including, but not limited to:

     (1) Cups: a minimum of one hundred twenty-five (125) uses.

     (2) Clamshells: a minimum of fifty (50) uses.

     (3) Plates: a minimum of sixty-three (63) uses.

     (4) Glass bottles: a minimum of twenty (20) uses.

     23-97-19. Recycling or post-consumer recycled material requirements.

     (a) Each producer must ensure that all non-reusable packaging, across its entire brand,

either:

     (1) Is recycled, as defined in this chapter, at a rate consistent with the following schedule:

     (i) Fifty percent (50%), five (5) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6;

     (ii) Eighty percent (80%), eight (8) years after the selection of the producer responsibility

organization pursuant to § 23-97-6; and

     (iii) Ninety percent (90%), twelve (12) years after the selection of the producer

responsibility organization by the department pursuant to § 23-97-6; or

     (2) Incorporates, on average and in the aggregate, the following amount by weight of post-

consumer recycled material:

     (i) Fifty percent (50%), five (5) years after the selection of the producer responsibility

LC003789 - Page 18 of 29

organization by the department pursuant to § 23-97-6;

     (ii) Eighty percent (80%), eight (8) years after the selection of the producer responsibility

organization by the department pursuant to § 23-97-6; and

     (iii) Ninety percent (90%), twelve (12) years after the selection of the producer

responsibility organization by the department pursuant to § 23-97-6.

     (b) Determination of compliance with post-consumer recycled material requirements.

     (1) For the purpose of determining a producer’s compliance with the post-consumer

recycled material requirements of this section, a producer must rely on Rhode Island data regarding

packaging sales and material use, if available, or may alternatively rely on the same type of data

applicable to a region or territory of the United States that includes Rhode Island.

     (2) If a producer elects to rely on data regarding packaging sales and materials used derived

from data applicable to a region or territory of the United States that includes Rhode Island, the

producer shall:

     (i) Prorate the regional or territorial data to determine Rhode Island specific figures based

on market share or population in a manner that ensures that the percentage of post-consumer

recycled material calculated for packaging materials sold in Rhode Island is the same percentage

as calculated for that larger region or territory; and

     (ii) Document the methodology used to determine those Rhode Island specific figures

calculated under subsection (b)(1) of this section.

     (c) If a producer elects to comply with the provisions of this section by meeting the post-

consumer recycled material requirements, the department may assess against a producer that fails

to comply with those requirements an administrative penalty calculated as followed:

     (1) The department shall add the total amount by weight in pounds of post-consumer

recycled material and the total amount by weight in pounds of material that is not post-consumer

recycled material used by the producer in all the packaging it sold, offered for sale, or distributed

for sale in the state during the prior calendar year. Unless otherwise determined by the department,

the figure calculated under this subsection must be calculated using the information reported by the

manufacturer pursuant to subsection (b) of this section.

     (2) The department shall multiply the figure calculated under subsection (c)(1) of this

section by the minimum post-consumer recycled material percentage required under subsection

(a)(2) of this section during the prior calendar year.

     (3) The department shall subtract from that figure calculated under subsection (c)(2) of this

section the total amount by weight in pounds of post-consumer recycled material used by the

producer in all products it sold, offered for sale, or distributed for sale in packaging in the state

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during the prior calendar years.

     (4) The department shall multiply that figure calculated under subsection (c)(3) of this

section by twenty cents ($0.20). If the figure calculated under this subsection is less than or equal

to zero, the department may not assess an administrative penalty.

     23-97-20. Toxic substances in packaging.

     (a) Pursuant to the rules and regulations as adopted by the department in accordance with

§ 23-97-26 and chapter 35 of title 42, and beginning three (3) years after the effective date of these

regulations, and every three (3) years subsequent, the department shall designate at least ten (10),

but no more than twenty (20), toxic substances in packaging, unless it determines there are not ten

(10) chemicals that meet the definition of toxic substances as defined pursuant to § 23-97-2. If the

department determines there are not ten (10) toxic substances that meet the definition of § 23-97-

2, it must publish a detailed statement of findings and conclusions supporting that determination.

     (b) Within one hundred eighty (180) days of designating a toxic substance, the department

shall adopt rules and regulations to prohibit the newly designated toxic substance in packaging,

with an effective date no later than two (2) years after the rules and regulations are adopted.

     (c) Beginning three (3) years after the effective date, any person may petition the

department to add a chemical or chemical class to the list of toxic substances in packaging. Any

such petition shall include a showing by the petitioner of the information that supports designating

the chemical or chemical class as a toxic substance in packaging. Within ninety (90) days of

receiving a petition, the department shall either grant or deny the petition by publishing a written

explanation of the reasons for the decision. If the department grants the petition in whole or part, it

shall designate the chemical or chemical class as a toxic substance in packaging and adopt rules

and regulations within one hundred eighty (180) days to prohibit the newly designated chemicals

in packaging with an effective date no later than two (2) years after the rules and regulations are

adopted.

     (d) A producer that violates any provision of this section is subject to penalties in

accordance with the department’s rules and regulations. Any producer, distributor, retailer, or other

responsible party that violates this section shall be subject to a fine for each violation and for each

day that the violation continues in an amount of not more than two hundred thousand dollars

($200,000).

     23-97-21. Annual producer responsibility program report.

     (a) Beginning one year after the producer responsibility organization begins to collect fees

from producers, and on an annual basis thereafter, the department, with the assistance of the

producer responsibility organization, shall generate a producer responsibility program report.

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     (b) The report shall include, at a minimum, the following information:

     (1) A list of all participating producers and the brands of products associated with those

producers;

     (2) A baseline report of the number of units of packaging and type of packaging products,

both non-reusable and reusable, that were sold, offered for sale, or distributed into the state;

     (3) A list of all materials that are readily-recyclable in the state, as defined in § 23-97-2;

     (4) Results of an audit of inbound and outbound recyclable material processed and sold

within the state;

     (5) A waste characterization study that specifies the quantity in tons of packaging material

in the waste stream according to types of uses;

     (6) A statewide litter survey that identifies the quantity of packaging material in litter

according to types of packaging material and the brands which produce the material;

     (7) A list of the amount of packaging material and packaging material type sold or offered

for sale within the state that year;

     (8) A description of all funding issued in accordance with § 23-97-14;

     (9) A description of all funding issued pursuant to § 23-97-15; and

     (10) The compliance of producers with the toxic substances ban pursuant to § 23-97-20.

     23-97-22. Producer compliance information.

     (a) Based on information provided to the department under § 23-97-5 and any other

information considered by the department, the department shall make available on its publicly

accessible website a regularly updated list of UPCs of products for which the department has

determined the producer has complied with all applicable requirements of this chapter and a list of

producers and, where applicable, specific products and the UPCs of those products for which the

department has determined the producer has not complied with all applicable requirements of this

chapter.

     (b) The producer responsibility organization shall provide to the department a list of

producers that are participating in the program and a list of the UPCs of products for which the

producer has complied with the program's requirements and, if known to the producer responsibility

organization, a list of producers that are not participating in the program and are not compliant with

the program's requirements. The producer responsibility organization shall provide to the

department regularly updated producer compliance information as described in subsection (a) of

this section.

     23-97-23. Enforcement by the department.

     (a) The department shall administer and enforce this chapter. The department may request

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a certificate of compliance from a producer. A certificate of compliance attests that a producer’s

product(s) meets the requirements of this chapter and must be signed by an authorized official of

the producer. The department shall post any certificate of compliance on its publicly available

website for public access.

     (b) The department shall have the authority to investigate the producer responsibility

organization for compliance with all provisions of this chapter and may bring an enforcement action

against the producer responsibility organization for failure to comply with this chapter.

     (c) The department may bring a civil action in superior court for Providence County to

enjoin the sale, distribution, or importation into the state of a packaging material in violation of this

chapter.

     (d) The penalties provided for in this chapter may be recovered in a civil action brought in

the name of the people of the state by the attorney general. Any funds collected under this section

in an action in which the attorney general has prevailed shall be deposited into the packaging

responsibility fund.

     23-97-24. Enforcement by action in superior court.

     (a) The provisions of this chapter may be enforced by means of an action in the superior

court for Providence County seeking injunctive relief, a declaratory judgment, a writ of mandamus,

or any combination thereof. No such action may be commenced without the plaintiff providing

written notice of the violations of this chapter to defendants at least sixty (60) days prior to filing a

legal action in superior court.

     (b) All persons shall have standing to commence such enforcement actions.

     (c) Reasonable attorneys’ fees shall be recoverable by all substantially prevailing plaintiffs

who seek relief under this section.

     23-97-25. Labeling.

     (a) Producers must indicate on all packaging material sold, offered for sale, or distributed

for sale in or into the state either:

     (1) The percentage of post-consumer recycled material as defined in § 23-97-2;

     (2) Whether the packaging material is readily-recyclable as defined in § 23-97-2 and how

to recycle such unit; or

     (3) Whether the unit is compostable as defined in § 23-97-2.

     (b) These labels shall be in a form deemed appropriate by the department pursuant to the

rules and regulations adopted under § 23-97-26.

     (c) All packaging material sold in the state must conform with the uniform labeling system

within two (2) years of the effective date. Packaging that does not meet the requirements of this

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section may not be sold, offered for sale, or distributed for sale into the state.

     23-97-26. Rulemaking.

     (a) The department shall promulgate rules and regulations pursuant to chapter 35 of title

42 ("administrative procedures") as necessary to implement, administer, and enforce this chapter.

All rules and regulations promulgated pursuant to this section shall be enacted no later than one

year after the effective date of this chapter.

     (b) As part of the promulgation of rules and regulations the department shall solicit input

from interested parties in the development of any draft rules and regulations to implement this

chapter, solicit public comment on the draft rules and regulations for a period of at least thirty (30)

days, pursuant to § 42-35-2.8, and hold a public hearing on the draft rules and regulations.

     (c) The rules and regulations adopted by the department pursuant to this section must

include, at a minimum:

     (1) A process for contracting with the producer responsibility organization pursuant to the

requirements of § 23-97-6;

     (2) A process for annually determining a schedule of producer fees in accordance with the

requirements of § 23-97-10, which must include, but is not limited to, provisions regarding the

timing of producer fees and the timing of and information required to be provided in the annual

producer report;

     (i) The fee schedule adopted under this section must provide for a flat fee option to be

assessed on a tiered basis such that a low-volume producer is required to pay no more than five

hundred dollars ($500) per ton of packaging, and no more than seven thousand five hundred dollars

($7,500) in total annual fees to the producer stewardship organization under this chapter;

     (ii) For producers other than low-volume producers, the fee schedule adopted under this

section must be based on the most recent needs assessment, and shall include, at a minimum, the

net cost of curbside collection, commercial collection, or transfer station operation, on-site

processing cost for each readily-recyclable packaging types, management cost of non-readily-

recyclable packaging, transportation cost for each type of packaging material, and any other cost

factors determined by the department;

     (iii) For producers other than low-volume producers, the fee schedule adopted under this

section must delineate criteria to be used to adjust producer fees in a manner that complies with §

23-97-6;

     (3) A provision requiring that a producer provide as part of the annual producer reporting

under § 23-97-8, all information necessary for the determination of the producer’s fee obligation

and the determination of the producer’s compliance with respect to this chapter;

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     (i) For producers other than low-volume producers, the rule or regulation must require the

producer to provide a description of the methods it used to determine the amount reported for each

type of packaging material associated with its products, a description of the characteristics of each

type of packaging material that are relevant to the eco-modulating factors in § 23-97-10, and a list

of the producer's brands and the UPCs of the products associated with each type of packaging

material;

     (ii) For low-volume producers, the rule or regulation must require the reporting of only the

information necessary for a calculation of the flat fee described in subsection (a) of this section and

a determination of the producer's compliance with the requirements of this section;

     (iii) The rule or regulation must authorize a producer that is unable to fully satisfy the

reporting requirements due to a failure to obtain sufficient information regarding the characteristics

of the packaging of the producer’s products that are sold, offered for sale, or distributed for sale in

or into the state to alternatively report to the producer responsibility organization an estimate of the

total amount of that packaging based on unit quantities as long as such alternative reporting includes

a description of methods used by the producer to calculate the estimate;

     (4) A process for determining on an annual basis those types of packaging materials that

are readily-recyclable, as defined in § 23-97-2, which must involve consultation with the producer

responsibility organization and recycling establishments and must include a transitional period

between the time that the type of packaging material is determined to be recyclable or to not be

recyclable and the time that such determination will be in effect for the purposes of calculating

producer fees;

     (5) Requirements for the assessment of program performance, including:

     (i) The non-reusable packaging reduction requirements of § 23-97-17;

     (ii) The reuse and refill system requirements of § 23-97-18;

     (iii) The recycling or post-consumer recycled material requirements of § 23-97-19;

     (iv) The toxic substances in packaging requirements of § 23-97-20;

     (v) The labeling requirements of § 23-97-25;

     (vi) Setting program goals used to inform the producer fee schedule determined pursuant

to § 23-97-10; and

     (vii) Material-specific recycling rates for each type of packaging material for which a fee

has been set pursuant to § 23-97-10. The material specific recycling rate goals shall reflect the

following recycling standards:

     (A) Sorted glass is considered recycled if it does not require further processing before

entering a glass furnace or before use in the production of filtration media, abrasive materials, glass

LC003789 - Page 24 of 29

fiber insulation or construction;

     (B) Sorted metal is considered recycled if it does not require further processing before

entering a melter or furnace;

     (C) Sorted paper is considered recycled if it does not require further processing before

entering a pulping operation;

     (D) Plastic separated by polymer is considered recycled if it does not require further

processing before entering a pelletization, extrusion, or molding operation, or in the case of plastic

flakes, does not require further processing before use in a final product;

     (6) Requirements for the producer responsibility organization to conduct representative

audits of recyclable material process and sold by facilities that process recyclable material

generated in the state, of municipal solid waste disposed of in the state, and waste littered in the

state, which must include, at minimum:

     (i) Provisions regarding the sampling techniques to be used in those audits, which must

include random sampling; and

     (ii) For audits of recyclable materials, provisions regarding:

     (A) How those audits must be designed to collect information regarding the extent to which

recycled material processed and sold by those facilities reflects the ton of each type of packaging

material collected in the state for recycling and the tonnage of each type of packaging material

recycled in the state, as well as the ultimate designation of and intended use for that recycled

material;

     (B) How those audits must be designed so that information collected through the audit of

one facility will not be used to infer information about a different facility that uses different

processing equipment, different sorting processes, or different staffing levels to conduct

processing;

     (C) For audits of municipal solid waste, provisions regarding how the audits will be

designed to collect information regarding the types and amount, by weight, of packaging in the

waste stream and the percentage by weight of the waste stream that is composed of packaging; and

     (D) For audits of waste littered in the state, provisions regarding how the audits will be

designed to collect information regarding the packaging material type by amount, weight, in

sampled litter, identification of the producer(s) of the packaging in sampled litter, if identifiable,

and an evaluation based on those audits regarding the areas of the state in which litter accumulation

is greatest;

     (7) A schedule by which the producer responsibility organization must annually report to

the department pursuant to § 23-97-8;

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     (8) A process by which the producer responsibility organization shall develop and submit

to the department for review and a process by which the department shall review and approve or

deny:

     (i) A proposed investment in recycling infrastructure and education pursuant to § 23-97-

14; and

     (ii) A proposed investment in reusable or refillable infrastructure and education pursuant

to § 23-97-15. The process must set forth the manner in which the producer responsibility

organization is required to solicit and incorporate input in the development of proposed investments

from producers, recycling establishments and municipalities;

     (9) A process for soliciting information necessary for, and a process for rendering a

determination regarding:

     (i) A producer’s compliance with the non-reusable packaging reduction requirements of §

23-97-17;

     (ii) A producer’s compliance with the reuse and refill system requirements of § 23-97-18;

     (iii) A producer’s compliance with the recycling or post-consumer recycled material

requirements of § 23-97-19;

     (iv) A producer’s compliance with the toxic substances in packaging requirements of § 23-

97-20; and

     (v) A producer’s compliance with the labeling requirements of § 23-97-25;

     (10) A process for determining how the producer responsibility organization will distribute

funds to municipalities, or where appropriate, political subdivisions, and Native American tribes,

pursuant to § 23-97-16;

     (11) A process for determining changes to the percentages of authorized expenditures

under the packaging responsibility fund, pursuant to § 23-97-12;

     (12) A process for establishing penalties for all violations of the requirements of this

chapter. This includes, but is not limited to, penalties for violating:

     (i) A producer’s compliance with the requirements of § 23-97-5;

     (ii) The producer responsibility organization’s compliance with §§ 23-97-7, 23-97-8 and

23-97-12;

     (iii) A producer’s compliance with the non-reusable packaging reduction requirements of

§ 23-97-17;

     (iv) A producer’s compliance with the reuse and refill system requirements of § 23-97-18;

     (v) A producer’s compliance with the recycling or post-consumer recycled material

requirements of § 23-97-19;

LC003789 - Page 26 of 29

     (vi) A producer’s compliance with the toxic substances in packaging requirements of § 23-

97-20; and

     (vii) A producer’s compliance with the labeling requirements of § 23-97-25;

     (13) A process for determining new toxic substances in packaging pursuant to § 23-97-20;

     (14) A process for determining the appropriate format packaging labels as required by §

23-97-25;

     (15) A process for how the producer responsibility organization shall manage the

packaging responsibility fund pursuant to § 23-97-12;

     (16) A process for determining whether information is proprietary information and

therefore must be handled as confidential information pursuant to § 23-97-28;

     (17) A process for determining the minimum number of reuse or refill cycles required for

each type of packaging material to be considered reusable or refillable, as defined by § 23-97-2,

pursuant to § 23-97-18; and

     (18) A process by which a producer can assert a claim of confidential business information,

pursuant to § 23-97-28, which must include, at a minimum, the following criteria for determining

whether information rises to the level of confidential business information:

     (i) The extent to which the information is known by employees or others involved within

the facility or business of the person, and whether or not those individuals are bound by non-

disclosure agreements;

     (ii) The extent to which the information is known outside of the facility or business of the

person, and whether or not individuals with such knowledge are bound by non-disclosure

agreements;

     (iii) The measures taken to restrict access to and safeguard the information, and whether or

not the person plans to continue utilizing such measures;

     (iv) The estimated value of the information to the individual and that individual’s

competitors;

     (v) The estimated amount of effort and/or money expended by the individual in developing

the information;

     (vi) The estimated ease or difficulty with which the information can be properly acquired

or duplicated by others, an explanation of why the information is not readily discoverable through

other means, such as, market research, other regulatory reporting and publicly accessible reports to

shareholders; and

     (vii) A description of the nature and extent of harm that could be caused if the information

were made public, including an explanation of the causal relationship between disclosure and the

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harmful effects claimed.

     23-97-27. Penalties.

     (a) The penalties adopted by the department to implement, administer, and enforce this

chapter may be recovered by the department in a civil action brought in the name of the people of

the state by the attorney general, or through the enforcement provisions of § 23-97-24.

     (b) Any funds collected under this chapter shall be deposited into the packaging

responsibility fund, except that a portion of the funds collected by either the office of the attorney

general or through the civil enforcement provisions can be used to offset the cost of the enforcement

action. The department shall include a process for determining the apportionment of any funds so

collected, within the departments' rules and regulations

     23-97-28. Confidential business information.

     Confidential business information submitted to the department pursuant to the

requirements of this chapter, or the rules and regulations adopted pursuant to § 23-97-26 and

chapter 35 of title 42, that is identified by the submitter as proprietary information that is

confidential and substantiated by the submitter in accordance with the rules and regulations adopted

pursuant to § 23-97-26 and chapter 35 of title 42, must be handled by the department and the

producer responsibility organization in the same manner as confidential information is handled.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RESPONSIBILITY

FOR PACKAGING

***

     This act would enact the extended producer responsibility for packaging act requiring

producers of packaging material to make changes to their product design in an effort to reduce the

use of non-reusable, non-recyclable and toxic packaging. This act would further create the producer

responsibility program requiring producers to make necessary changes to their product design(s) to

reduce packaging consumption and waste, and assess fees based on the packaging. This act would

further establish the producer responsibility organization to administer the producer responsibility

program. The department of environmental management would promulgate rules and regulations

to implement the provisions of this chapter.

     This act would take effect upon passage.

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