Bill Text: NJ A5009 | 2024-2025 | Regular Session | Introduced
Bill Title: "Packaging Product Stewardship Act."
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced) 2024-11-14 - Introduced, Referred to Assembly Environment, Natural Resources, and Solid Waste Committee [A5009 Detail]
Download: New_Jersey-2024-A5009-Introduced.html
Sponsored by:
Assemblywoman ALIXON COLLAZOS-GILL
District 27 (Essex and Passaic)
Assemblywoman GARNET R. HALL
District 28 (Essex and Union)
Assemblyman JAMES J. KENNEDY
District 22 (Somerset and Union)
SYNOPSIS
"Packaging Product Stewardship Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the disposal of packaging products, amending P.L.1970, c.39, and supplementing Title 13 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "Packaging Product Stewardship Act."
2. (New section) As used in this act:
"Commissioner" means the Commissioner of Environmental Protection.
"Department" means the Department of Environmental Protection.
"Environmentally sound management practices" means policies or procedures for the collection, storage, transportation, reuse, and recycling or disposal of discarded packaging products, which policies or procedures are established by the department and implemented by a producer or a group of producers to: ensure compliance with all applicable federal, State, and local laws, rules, regulations, and ordinances; protect human health and the environment; and address matters including, but not limited to, adequate recordkeeping and accurate tracking and documentation of the collection, transportation, reuse, and recycling or disposal of discarded packaging products within the State.
"Non-participating producer" means a producer who is not a participant in a packaging product stewardship plan adopted and administered by a producer responsibility organization pursuant to this act.
"Packaging product" means any product or material designed and used for the containment, protection, handling, delivery, or presentation of another product, including, but not limited to, a food or beverage item, and that is sold, offered for sale, imported, or distributed in the State. "Packaging product" includes: primary packaging that constitutes a sales unit at the point of purchase; secondary packaging that is used to group other products for multiunit sale or is intended to brand or display another product; tertiary packaging that is used either for the transportation and distribution of another product directly to the consumer or for the protection of the product during transport; service packaging, including carry-out bags, bulk goods bags, take-out bags, home delivery food service packaging, and prescription bottles, which are designed and intended to be filled at the point of sale; beverage containers; ancillary elements that are attached to another product and that serve a packaging function; and any other product, whether constituted of paper, plastic, glass, metal, a mixture thereof, or any other material, which serves a packaging function.
"Packaging product stewardship plan" or "stewardship plan" means the plan developed pursuant to section 6 of this act, and which provides for the environmentally sound life-cycle management, by participating producers, of packaging products that are sold, offered for sale, imported, or distributed by such producers in this State.
"Participating producer" means a producer who is a named participant in a producer responsibility organization's packaging product stewardship plan approved pursuant to section 7 of this act.
"Producer" means the producer of packaging as follows:
(1) For items sold in a packaging product at a physical retail location in the State:
(a) if the item is sold in a packaging product under the manufacturer's own brand or is sold in a packaging product that lacks identification of a brand, the producer is the person that manufactures the packaged item;
(b) if the item is manufactured by a person other than the brand owner, the producer is the person that is the licensee of the brand or trademark under which the packaged item is used in a commercial enterprise, sold, offered for sale, or distributed in or into the State, whether or not the trademark is registered in the State; and
(c) if there is no person described in subparagraphs (a) and (b) of this paragraph within the United States, the producer is the person that imports the packaged item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in the State;
(2) For items sold or distributed in a packaging product in or into the State via remote sale or distribution:
(a) the producer of a packaging product used to directly protect or contain the item is the same as the producer pursuant to paragraph (1) of this definition; and
(b) the producer of a packaging product used to ship the item to a consumer is the person that packages and ships the item to the consumer; and
(3) For all other packaging products, the producer is the person that first distributes the packaged item in or into the State.
"Recycling" means any process by which materials or products that would otherwise become solid waste are collected, separated, or processed and returned to the economic mainstream in the form of raw materials or products. "Recycling" shall not include energy recovery or energy generation resulting from combustion or incineration processes.
"Reuse" means the return of a packaging product back into the economic stream for use in the same kind of application intended for the original packaging product, without effectuating a change in the original composition or identity of the product or the components thereof.
"Small producer" means a producer that: (1) is a nonprofit organization; (2) is a public entity; (3) has a gross revenue of less than $5 million for the producer's most recent fiscal year; (4) sold in or into the State less than one metric ton of packaging products for use in the State in the most recent calendar year; (5) is a manufacturer of a beverage sold in a beverage container, and sold in or into the State less than five metric tons of packaging products, including, but not limited to, secondary and tertiary packaging for beverage containers, for use in the State in the most recent calendar year; (6) is a restaurant, food cart, or other similar business establishment that primarily sells to members of the public food that is generally intended to be consumed immediately and without the need for further preparation, either on or off the premises; or (7) operates a single retail sales establishment, has no online sales, and is not supplied or operated as part of a franchise or a chain.
3. (New section) a. No later than one year after the effective date of this act, the department shall prepare a Statewide needs assessment that is designed to determine the necessary steps and investments, in both the private and public sector, needed to effectuate the requirements of this act. In order to comply with the provisions of this section, the department may prepare either several needs assessments, with each assessment specific to one or more types of packaging covered under this act, or a single, comprehensive needs assessment that includes reference to all materials covered under this act.
b. A Statewide needs assessment prepared under this section shall be updated every five years or on a more frequent basis, as determined by the department to be necessary to ensure compliance with the requirements of this act.
c. The department may select, and contract with, a State institution of higher education to complete the needs assessment required by this section, or any update thereto.
d. A Statewide needs assessment, prepared pursuant to this section, shall:
(1) include an estimate of the costs of solid waste and recycling infrastructure and systems upgrades needed for producers to meet the requirements of section 5 of this act, for each of the ten years following the year in which the needs assessment or update thereto is prepared;
(2) be developed in collaboration and consultation with a diverse array of local governments, recycling service providers, and processors sufficient to reflect the distinct needs and challenges faced by urban, suburban, and rural communities of varying population densities and socioeconomic perspectives;
(3) beginning two years after the effective date of this act, be developed in collaboration and consultation with each producer responsibility organization in the State;
(4) be designed to inform a producer responsibility organization's budget and packaging product stewardship plan;
(5) develop a system through which a producer responsibility organization or the department, as appropriate, may disburse funds to local governments or recycling service providers to fund the increase in volume of recycled material required under this act; and
(6) include an evaluation of:
(a) existing State statutory provisions and funding sources related to market development and financial incentives which may be used to achieve the State's goals related to recycling and pollution prevention;
(b) the current recycling, composting, collection, and hauling systems in the State and a description of any needed enhancements to the system;
(c) the existing levels of access of multifamily residences to on-premises recycling facilities or capabilities, and the need to expand such access;
(d) the recycling capacity and infrastructure in the State and region and the ability for innovative and advanced technologies such as artificial intelligence and robotics to improve that capacity;
(e) current market conditions and the need to create viable and responsible end markets for recycled content in the State and region;
(f) the need for enhanced consumer education to promote, facilitate, and maximize consumer recycling, composting, reuse, and reduction activities;
(g) funding needs and actions necessary to achieve the requirements of this act, including the need to finance payments to recyclers, market incentive payments, or other payments necessary to achieve the requirements of this act;
(h) factors contributing to the rate of inbound contamination, and actions and investments needed and undertaken to avoid contamination and facilitate the recycling of packaging products as necessary to ensure that the material meets quality standards for remanufacturing;
(i) the need to shift types of packaging that are unlikely to develop sustained viable and responsible end markets to a type of packaging that either has a viable and responsible end market or is likely to develop such a market;
(j) actions and investments necessary to modify the design of packaging products so as to improve their reusability, recyclability, and compostability;
(k) the funding needed to implement the source reduction requirements established in section 5 of this act, including, but not limited to, investments needed to develop infrastructure for reusable and refillable packaging and to provide consumers with convenient access to that infrastructure; and
(l) any other actions or investments that the department believes would be effective in achieving the State's source reduction and recycling requirements, or to otherwise effectuate the purposes of this act.
e. A Statewide needs assessment, prepared pursuant to this section, shall not propose any investment in activities that would be contrary to the goals of the State Recycling Plan developed pursuant to the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.32 et seq.) or that would be in violation of an agreement entered into pursuant that act.
f. A Statewide needs assessment may include specific elements that are designed to:
(1) expand access to, or otherwise improve, curbside collection services wherever feasible;
(2) expand access to drop-off recycling services or other mechanisms where curbside collection services are not feasible, or as necessary to supplement curbside collection services to meet the requirements of this act;
(3) expand access to collection services in public spaces;
(4) create, expand, or enhance on-premises access to recycling services for multifamily residences;
(5) fund, provide, or facilitate the efficient transport of packaging products to centralized sorting facilities, brokers, and viable and responsible end markets;
(6) enhance and expand existing recycling infrastructure through the use of quality incentive payments, grants, and other mechanisms sufficient to cover the cost of separating, processing, baling, recycling, composting, remanufacturing, and transporting materials; or
(7) expand access to, or expand the State's capacity for, source separated, multi-stream recycling.
g. A Statewide needs assessment prepared pursuant to this section, and any updates thereto, shall be developed through a public process, which includes at least one public meeting at which a producer responsibility organization, the Advisory Council on Solid Waste Management established pursuant to section 8 of P.L.1970, c.39 (C.13:1E-8), and any interested members of the public are given the opportunity to comment.
4. (New section) a. Except as otherwise provided by this section, no later than two years after the effective date of this act, producers of packaging products shall establish or join a producer responsibility organization in order to comply with this act. Upon the formation of a producer responsibility organization, the producer responsibility organization's participating producers shall elect a governing body, and the governing body shall submit an application to the department demonstrating that the producer responsibility organization meets the requirements for approval pursuant to this section.
b. The department shall approve, for the purposes of this act, the formation of up to 10 producer responsibility organizations, provided that each:
(1) complies with the requirements of this act and the rules and regulations adopted pursuant thereto;
(2) has a governing board that consists of participating producers representing the packaging materials placed in the market by those producers, and, if deemed by the participating producers to be warranted, that includes nonvoting members who represent material trade associations and companies; and
(3) demonstrates, to the department's satisfaction, that it has adequate financial responsibility and financial controls in place, including fraud prevention measures and an auditing schedule, to ensure the proper management of the producer responsibility organization's funds.
c. If the department determines that a producer responsibility organization approved pursuant to this section no longer meets the requirements of this act or has failed to implement and administer an approved packaging product stewardship plan in a manner that effectuates the purposes of this act, the department shall revoke the producer responsibility organization's approval.
d. Except as otherwise provided in subsection f. of this section, upon approval of the first producer responsibility organization's packaging product stewardship plan, or commencing five years after the effective date of this act, whichever is sooner, a producer shall be prohibited from selling, offering for sale, importing, or distributing packaging products in or into the State unless the producer is a participating producer.
e. Commencing two years after the effective date of this act, any entity that becomes a producer shall, within six months of qualifying as a producer, become a participating producer in an approved producer responsibility organization, or shall submit a packaging product stewardship plan pursuant to subsection f. of this section, and shall comply with the provisions of this act.
f. Notwithstanding any provisions of this act to the contrary, a producer may comply with the provisions of this act without participating in a producer responsibility organization's packaging product stewardship plan. A non-participating producer shall be responsible for complying with the provisions of this act, including, but not limited to:
(1) developing and implementing a plan that complies with all of the applicable requirements of a packaging product stewardship plan, including, but not limited to, the review, update, and approval requirements set forth in section 7 of this act.
(2) fully covering the costs associated with complying with the provisions of this act and implementing the provisions of an approved packaging product stewardship plan, to the same extent as a participating producer, based on the non-participating producer's market share of packaging products; and
(3) providing an annual report to the department pursuant to section 10 of this act.
g. Regardless of whether a producer participates in a producer responsibility organization, every producer in the State shall file its primary business address with the department, in a manner determined by the department. Each producer shall notify the department of any change in their business address within 30 days after the change. A producer responsibility organization may satisfy the requirements of this subsection, on behalf of a participating producer, by including the participating producer's primary business address in a packaging product stewardship plan, update, or annual report submitted to the department, or by otherwise notifying the department of the participating producer's address or any change of address.
h. A producer responsibility organization approved pursuant to this section shall notify the department, within 30 days, of any the following:
(1) the end of any three-month period in which the producer responsibility organization unsuccessfully attempted to obtain a fee, records, or information from a participating producer, or received incomplete or incorrect records or information from a participating producer;
(2) the date on which a participating producer no longer participates in the producer responsibility organization's approved packaging product stewardship plan; and
(3) any other instance of noncompliance by a participating producer.
5. (New section) a. A producer responsibility organization shall ensure that:
(1) commencing January 1, 2032, the cumulative amount of single-use packaging products sold, offered for sale, imported, or distributed in or into the State by the producer responsibility organization's members has been reduced by 25 percent by volume, using the amount sold during the previous full calendar year prior to the effective date of this act as a baseline,
(2) at least 10 percent of the source reduction required pursuant to paragraph (1) of this subsection has been achieved by shifting a single use packaging product to a refillable or reusable product, or by eliminating a plastic component;
(3) commencing January 1, 2034, all packaging products sold, offered for sale, imported, or distributed in or into the State by the producer responsibility organization's members are either compostable or recyclable, as determined by the department; and
(4) commencing January 1, 2036, the packaging products sold, offered for sale, imported, or distributed in or into the State by the producer responsibility organization's members are recycled at a rate of not less than 65 percent.
b. No later than one year after the effective date of this act, the department shall establish, by rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). interim targets and requirements to assist producers in meeting the requirements established by subsection a. of this section.
c. Commencing two years after the effective date of this act and biennially thereafter, the department, in consultation with the Advisory Council on Solid Waste Management established pursuant to section 8 of P.L.1970, c.39 (C.13:1E-8), shall review relevant data to assess whether the recycling and source reduction requirements established pursuant to subsection a. or b. of this section, as appropriate, should be adjusted. The department shall make its determination and rationale available for public review by publishing a report on its Internet website. If the department determines that current unforeseen and anomalous market conditions, including, but not limited to, recycling infrastructure conditions, warrant an adjustment, the department may adopt rules and regulations to adjust the interim requirements established pursuant to subsection b. of this section.
6. (New section) a. No later than five years after the effective date of this act, each approved producer responsibility organization in the State shall develop, in consultation with appropriate stakeholders, including, but not limited to, producers, local governments, recycling service providers, appropriate nonprofit organizations, and residents, a packaging product stewardship plan. A producer responsibility organization shall submit a draft of its packaging product stewardship plan to the Advisory Council on Solid Waste Management established pursuant to section 8 of P.L.1970, c.39 (C.13:1E-8) for review and comment, prior to submitting the plan to the department. The council shall provide the producer responsibility organization with written comments on the plan within 60 days after receipt thereof. The producer responsibility organization shall consider the comments and may incorporate these comments into the plan. The producer responsibility organization shall submit the finalized packaging product stewardship plan to the department within 120 days after receipt of the council's comments, and the department shall review the plan for compliance with the provisions of this act.
b. A stewardship plan developed pursuant to this section shall:
(1) identify, and provide contact information for, each producer participating in the plan;
(2) include a comprehensive list of the packaging products that are covered by the plan, including, as applicable, the brand names of any such packaging products;
(3) identify the means, methods, processes, procedures, systems, and strategies that will be used by participating producers to: (a) reduce, through product design modifications and program innovation, the amount of material that is used for each packaging product and the amount of waste resulting from the use of each packaging product; (b) facilitate and promote the prompt and efficient collection of discarded packaging products throughout the State in a manner that is as, or more, convenient for consumers than the other collection programs available prior to the implementation of the packaging product stewardship plan; (c) transport discarded packaging products to authorized storage and recycling facilities; and (d) facilitate the reuse of discarded packaging products for alternate second-life purposes, the processing and recycling of discarded packaging products that cannot be reused for alternate second-life purposes, and the proper end-of-life disposal, in accordance with environmentally sound management practices, of discarded packaging products that cannot be reused or recycled;
(4) identify the methods that will be used by participating producers to meet the source reduction and recycling goals established pursuant to section 5 of this act;
(5) describe the ways in which existing municipal solid waste collection and recycling infrastructure will be used to implement the stewardship plan, or, if existing infrastructure will not be used, provide an explanation as to why it is necessary to establish separate infrastructure, as well as a description of how the separate infrastructure system will function, and an indication of the date by which the separate infrastructure system is expected to commence operations;
(6) describe the ways in which the participating producers will work with existing waste haulers, storage and recycling facilities, and local governments throughout the State to effectuate the collection, transportation, reuse, and recycling or disposal of packaging products, in accordance with environmentally sound management practices, and identify the name and address of all authorized recyclers that will be directly utilized pursuant to the plan;
(7) certify that participating producers will use open, competitive, and fair procurement practices, in compliance with the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.), when directly entering into contractual agreements with local governments and other service providers pursuant to the stewardship plan;
(8) describe the process that was used, during the development of the stewardship plan, to receive, consider, and implement the comments of various stakeholders, as well as the nature of stakeholder comments received during the plan development period, and the extent to which the stakeholders' comments were incorporated into the stewardship plan;
(9) describe the means and methods that will be used by participating producers to facilitate public outreach, education, and communication with respect to the stewardship plan, in accordance with the provisions of section 9 of this act;
(10) describe how the stewardship plan will be administered, and identify the staff members who will be responsible for ensuring proper administration of the plan;
(11) include a budget that provides for the implementation of the stewardship plan developed pursuant to the provisions of this subsection and subsection c. of this section, and any rules and regulations adopted by the department;
(12) include a description of the fee system developed pursuant to subsection d. of this section and the annual fee to be imposed on each producer;
(13) describe the amount and nature of packaging sold by the producer responsibility organization's members, in order to establish a baseline for the purposes of complying with the requirements of section 5 of this act.
c. Each packaging product stewardship plan shall include a budget designed to fully fund the costs necessary to implement the provisions of the plan. The budget shall identify, at a minimum:
(1) the amount of funding needed and available to finance actions and investments identified in the packaging product stewardship plan and actions and investments designed to address the issues identified in a Statewide needs assessment carried out pursuant to section 3 of this act; and
(2) the costs actually or expected to be incurred:
(a) by local governments, recycling service providers, and other collection programs in association with the implementation of the packaging product stewardship plan and this act;
(b) in association with consumer outreach and education efforts undertaken as part of the packaging product stewardship plan;
(c) in association with the transportation of packaging products to a recycling center, broker, or viable and responsible end market;
(d) in association with the cleaning, sorting, aggregating, and baling of packaging products, as necessary to bring those materials to a viable and responsible end market;
(e) in association with the administration and operation of the producer responsibility organization; and
(f) in association with the surcharge imposed pursuant to section 8 of this act.
d. The budget developed under this section shall be evaluated by an independent financial auditor, as designated by the department, to ensure that the budget is sufficient to cover all of the costs associated with implementation of the stewardship plan.
e. A producer responsibility organization shall annually raise sufficient revenue to fully fund all costs identified in its budget. The revenue shall be raised through a system of fees to be imposed on producers that are members of a producer responsibility organization. The fee system shall impose fees on producers in proportion to the amount, by weight or volume, as appropriate, of packaging products sold, offered for sale, imported, or distributed in or into the State by the producer. In addition, the fee system shall impose fees that are proportional to the environmental impact of the packaging products, consistent with the following provisions:
(1) packaging products that are certified as being reusable or reused shall be levied no fee;
(2) packaging products that are composed of recycled content, are recyclable, or are biodegradable shall be levied the lowest fee;
(3) the fees shall be inversely proportional to the percentage of recycled content in the products, and the ease of recycling the products;
(4) the fees shall be proportional to the amount of virgin material used in the products, and the percentage of non-biodegradable materials, including plastic, in the packaging;
(5) the presence of hazardous materials in the products, as identified by the Department of Health or the department, shall be associated with a higher fee; and
(6) the incorporation of elements, including, but not limited to, inks, labels, and adhesives, that prevent an otherwise recyclable or biodegradable product from being recyclable or biodegradable, as applicable, shall be associated with a higher fee.
7. (New section) a. Not more than 120 days after receipt of a completed packaging product stewardship plan, submitted pursuant to section 6 of this act, the commissioner shall approve, conditionally approve, or disapprove the plan and provide written notice of the determination to the producer responsibility organization. If the commissioner does not provide written notice of the determination made pursuant to this section within the timeframe specified by this subsection, the plan shall be deemed to have been approved, and the producer responsibility organization shall proceed to implement the plan as provided by paragraph (1) of subsection c. of this section. In making a determination pursuant to this section, the commissioner may solicit information from the representatives of recycling facilities and other stakeholders, as the commissioner deems appropriate.
b. A stewardship plan shall not be approved, pursuant to this section, unless the commissioner determines that:
(1) the producer responsibility organization has engaged in satisfactory consultation with stakeholders in the development of the plan;
(2) the plan adequately addresses all of the elements described in subsection b. of section 6 of this act in sufficient detail to demonstrate that the objectives of the plan will be met; and
(3) the plan contains an adequate financing mechanism, developed pursuant to subsection e. of section 6 of this act, and a budget that has been verified by an independent financial auditor.
c. (1) If a packaging product stewardship plan is approved pursuant to this section, the producer responsibility organization shall implement the approved plan within 90 days after receipt of the commissioner's written notice or after the expiration of the 120-day period established by subsection a. of this section, as the case may be, or within another timeframe agreed to by the commissioner.
(2) If a packaging product stewardship plan is conditionally approved pursuant to this section, the commissioner's written notice shall specify the conditions that are to be satisfied in order for the plan to be deemed approved pursuant to this act. The producer responsibility organization shall implement the conditionally approved plan, in accordance with the conditions specified in the notice, either within 90 days after receipt of the commissioner's notice or within another timeframe agreed to by the commissioner.
(3) If a packaging product stewardship plan is disapproved pursuant to this section, the commissioner's written notice shall be accompanied by a detailed statement describing the reasons for disapproval. Not more than 30 days after receipt of the commissioner's notice and accompanying statement of the reasons for disapproval, the producer responsibility organization shall submit a revised packaging product stewardship plan to the commissioner, who shall approve, conditionally approve, or disapprove of the revised plan in accordance with the provisions of subsection a. of this section.
d. Not more than 90 days after approving a packaging product stewardship plan pursuant to this section, or any revisions thereto, the commissioner shall post the plan at a publicly accessible location on the department's Internet website, together with a list of the producers participating in the plan and a list of the packaging products covered thereunder.
e. (1) A stewardship plan approved pursuant to this section shall be reviewed and updated by the producer responsibility organization, and reapproved by the commissioner, at least once every five years, in accordance with the procedures specified in this section.
(2) Notwithstanding the provisions of paragraph (1) of this subsection to the contrary, the commissioner may, at any time, review a previously approved packaging product stewardship plan to determine whether the plan is being implemented in accordance with this act. If the commissioner, at any time, finds that the approved plan, as implemented, is deficient, the commissioner may order the producer responsibility organization to incorporate modifications to the plan or to the implementation thereof, as may be necessary to ensure that the plan, as implemented, fully complies with the provisions of this act.
8. (New section) a. There is established the "Packaging Reduction and Recycling Fund" as a separate, non-lapsing fund in the Department of the Treasury. The "Packaging Reduction and Recycling Fund" shall be credited with all surcharges, interest, penalties, and other amounts collected and paid to the Division of Taxation in the Department of the Treasury pursuant to this section. Moneys in the "Packaging Reduction and Recycling Fund " shall be expended only to fund efforts identified in a Statewide needs assessment carried out pursuant to section 3 of this act, in the form of grants or low-interest loans issued by the department, or to administer or enforce the provisions of this act, including the transfer of moneys into the General Fund to repay moneys expended by the department or any other State agency during fiscal years prior to the deposit of moneys in the fund.
b. Pending the use thereof pursuant to the provisions of this section, the monies deposited in the fund shall be held in interest-bearing accounts in public depositories, as defined pursuant to section 1 of P.L.1970, c.236 (C.17:9-41), and may be invested or reinvested in such securities as are approved by the State Treasurer. Interest or other income earned on monies deposited into the fund shall be credited to the fund for use as set forth in this act for other monies in the fund.
c. Commencing six years after the effective date of this act, each producer responsibility organization and non-participating producer shall pay an annual surcharge as assessed by the Director of the Division of Taxation in the Department of the Treasury, to be deposited in the "Packaging Reduction and Recycling Fund." The total amount of the surcharge shall be the lesser of:
(1) the amount of funding required during the next fiscal year to fund the costs of solid waste and recycling infrastructure and systems upgrades needed for producers to meet the requirements of section 5 of this act, as determined in the Statewide needs assessment carried out pursuant to section 3 of this act, plus the amount needed to administer and enforce this act during the next fiscal year; and
(2) $120 million.
d. The amount owed by each producer responsibility organization and non-participating producer shall be a prorated proportion of the total amount, based on the market share of packaging products sold, offered for sale, imported, or distributed in or into the State by a producer responsibility organization's members or the non-participating producer, as applicable, as determined by the department.
e. On or before March 1 of each year beginning six years after the effective date of this act, the department shall transmit, to the Director of the Division of Taxation in the Department of the Treasury, documentation identifying the name and address of each producer responsibility organization and non-participating producer who is liable for the surcharge imposed under this section and the amount of the surcharge to be assessed against each such person; and providing a contact number for a department staff member who is able to respond to questions about the surcharge. The director shall transmit, to each producer responsibility organization and non-participating producer who is liable for the surcharge imposed under this section, a written determination to that effect.
f. Moneys appropriated from the "Packaging Reduction and Recycling Fund" shall not replace or reduce the allocation of any other funding.
9. (New section) a. Producers shall conduct public outreach and provide consumers with educational and informational materials, in a form and manner prescribed by the department, related to the producer's packaging product stewardship plan and the services provided thereunder. Producers shall also respond to questions, and address concerns, that are directly raised by consumers in association with the implementation of the stewardship plan.
b. The outreach conducted, and the educational and informational materials provided, under this subsection shall:
(1) provide information on the proper end-of-life management of discarded packaging products, including the end-of-life recycling and other environmentally sound disposal options that are available under the stewardship plan, as well as the location and availability of curbside and drop-off collection opportunities;
(2) provide instructions to enable consumers to carry out the recycling or composting of discarded packaging products, which instructions shall be easily accessible, easy to understand, and, to the extent practicable, applicable on a Statewide basis, taking into account the differences among local laws and processing capabilities;
(3) describe the environmental impact associated with the improper disposal of packaging products, and encourage consumers to avoid the littering of discarded packaging products;
(4) notify consumers that participating producers will be responsible for covering the costs of implementing the stewardship plan; and
(5) provide consumers with any other information required by the department.
c. The public outreach and education program, established pursuant to subsection a. of this section, shall:
(1) utilize all available forms of media, including, but not limited to, television, radio, print media, signage, the Internet, and social media, to provide information directly to consumers in the State;
(2) be coordinated with the various municipalities in the State and incorporate electronic, print, web-based, and social media elements that individual municipalities may elect to use, at their discretion, to provide education directly to their residents;
(3) to the extent deemed necessary and appropriate, provide for producers to affix, to their packaging products, a label that contains information necessary to help consumers responsibly manage and recycle the packaging products at the end of their useful life; and
(4) to the extent practicable, be coordinated with other similar public outreach and education programs in the State, as necessary to avoid consumer confusion and facilitate the consolidated use of available resources.
d. In addition to engaging in public outreach and education, as required by subsection a. of this section, a producer shall be authorized to provide retailers with educational and informational materials related to the producer's packaging product stewardship plan, the services provided thereunder, and the role of retailers in facilitating the successful implementation of the plan. The educational and informational materials provided to a retailer under this subsection may include, but need not be limited to, printed materials, signage, templates of materials that can be reproduced by retailers and provided thereby to consumers at the time of a product's purchase, and advertising materials that promote consumer participation in the packaging product stewardship plan.
10. (New section) a. Not more than one year after an approved packaging product stewardship plan is implemented pursuant to subsection c. of section 7 of this act, and annually thereafter, a producer responsibility organization shall submit a written report to the department evaluating the implementation of the plan. Each annual report shall include, but need not be limited to, the following information:
(1) a list of the producers participating in the plan and the packaging products covered under the plan;
(2) a description of the methods used to collect, transport, reuse, and recycle or dispose of discarded packaging products under the stewardship plan, in accordance with environmentally sound management practices;
(3) the total volume of discarded packaging products collected under the stewardship plan;
(4) the volume of collected packaging products that have been disposed under the stewardship plan, by method of disposition, including reuse, recycling, and disposal in accordance with environmentally sound management practices;
(5) the total cost of implementing the stewardship plan, as determined by an independent financial audit, including separate figures for the costs of collection, transportation, reuse, recycling, disposal, outreach, and any other activities that involved the expenditure of funds under the stewardship plan; and
(6) samples of the educational materials that have been provided, to consumers and retailers pursuant to section 9 of this act, together with an evaluation of the methods used to disseminate those materials and an assessment of the effectiveness of those materials, including associated levels of waste prevention and reuse or recycling that have been evidenced since outreach efforts were commenced pursuant to section 9 of this act;
(7) an evaluation of the effectiveness of the stewardship plan and any steps necessary to improve the plan's effectiveness; and
(8) any other information required by the commissioner.
b. Within 90 days after receipt of each annual report submitted pursuant to this section, the commissioner shall:
(1) review the report;
(2) post the report on the department's Internet website; and
(3) prepare, and post on the department's Internet website, a summary report describing the progress that is being made under the stewardship plan and any corrective action ordered by the commissioner pursuant to this act.
c. The department shall not disclose any financial, production, or sales data reported by a producer pursuant to this section, except that the department may disclose such data in aggregate or summary format, provided that the producers and their financial, production, or sales data are not specifically identified, and provided that the summary omits any reference to unique characteristics from which the identities of individual producers might be inferred or otherwise ascertained.
11. (New section) a. Whenever the commissioner finds that a person has violated any provision of this act, any rule or regulation adopted pursuant thereto, or any provision of a stewardship plan approved thereunder, or has knowingly made a false statement, representation, or certification in any application, record, plan, or other document filed or required to be maintained pursuant to this act, the commissioner may:
(1) issue an order, in accordance with subsection b. of this section, requiring the violator to comply with the provisions of this act, the rules or regulations adopted pursuant thereto, or the stewardship plan approved thereunder, as the case may be;
(2) bring a civil action in accordance with subsection c. of this section;
(3) levy a civil administrative penalty in accordance with subsection d. of this section;
(4) bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) notify the public of a producer that is not in compliance with the requirements of this act.
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
b. Whenever the commissioner finds that a person has violated this act, any rule or regulation adopted pursuant thereto, or any provision of a stewardship plan approved thereunder, the commissioner may issue an administrative enforcement order to the person: specifying the provision or provisions that the person has violated; citing the action that constituted the violation; requiring the person's compliance with the provision violated; and giving notice of the person's right to a hearing on the matters contained in the administrative enforcement order. The person subject to the order shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.
c. The commissioner shall be authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or of any rule or regulation adopted pursuant thereto, or of a stewardship plan approved thereunder. Such relief may include, singly or in combination:
(1) a temporary or permanent injunction;
(2) recovery of the reasonable costs of any investigation or inspection that led to the discovery of the violation, and for the recovery of the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from the violation for which a civil action has been commenced and brought under this subsection;
(4) recovery of compensatory damages caused by a violation for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the State Treasurer, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.
d. (1) The commissioner shall be authorized to assess a civil administrative penalty of not less than $5,000 nor more than $10,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense. In assessing a civil administrative penalty, the commissioner shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will act as an appropriate deterrent.
(2) Prior to the assessment of a civil administrative penalty under this subsection, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order, or the provision of the stewardship plan, that was violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order.
(3) The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate.
e. A person who violates any provision of this act, or any rule or regulation adopted pursuant thereto, or the provisions of a stewardship plan approved thereunder, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the commissioner. In addition to any penalties, costs, or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.
f. All penalties collected by the department pursuant to this act shall be deposited into the to the "Packaging Reduction and Recycling Fund" established pursuant to section 8 of this act, and appropriated annually for the continued administration and enforcement of this act.
12. (New section) a. Except as provided in subsection b. of this section, an action undertaken by a producer or group of producers, which affects the types or quantities of packaging products being recycled or the cost or structure of any collection or recycling program, shall not be deemed to constitute a violation of any State law relating to antitrust, restraint of trade, unfair trade practices, or the regulation of trade or commerce, so long as the action is necessary to plan for or implement the organized collection or recycling of packaging products pursuant to this act.
b. The provisions of subsection a. of this section shall not apply to:
(1) any agreement establishing or affecting the price of a product; or
(2) any agreement restricting the output or production of a product or the geographic area or customers to which a product will be sold.
13. (New section) A packaging product shall be exempt from the requirements of this act if it:
a. contains drugs, dietary supplements, medical devices, or cosmetics as those terms are defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. s.301 et seq.;
b. contains toxic or hazardous products regulated under the "Federal Insecticide, Fungicide, and Rodenticide Act," 7 U.S.C. s.136 et seq.; or
c. is manufactured for use in the shipment of hazardous materials and is: (a) prohibited from being manufactured with used material by federal packaging material specifications set forth in 49 C.F.R. s.178.509 and 49 C.F.R. s.178.522, (b) is subject to the testing standards set forth in 49 C.F.R. s.178.600 through 49 C.F.R. s.178.609, or (c) is subject to the recommendations of the United Nations on the transport of dangerous goods.
14. (New section) a. A small producer shall be exempt from the provisions of this act.
b. The department may, as part of the rules and regulations adopted pursuant to section 17 of this act, establish additional exemptions for producers that do not exceed a minimum market share of packaging products sold in or into the State.
15. (New section) a. There is established in the Department of Environmental Protection an Office of Plastics and Packaging Management. The office shall oversee the administration and enforcement of this act, P.L.2020, c.117 (C.13:1E-99.126 et al.), P.L.2021, c.391 (C.13:1E-99.135 et seq.), and any other law dealing with pollution from plastic and other packaging, and the deleterious environmental effects of the manufacture thereof, as determined by the commissioner.
b. (1) The office shall include an Inspector General, who shall have at least five years of experience in the enforcement of civil environmental laws or criminal law. The Inspector General shall be appointed by the commissioner, shall receive such salary as shall be provided by law, and shall devote their entire time and attention to the duties of the office. The Inspector General may be removed from office by the commissioner, for cause, upon notice and an opportunity to be heard.
(2) The Inspector General shall be entitled to call upon the assistance and services of any county prosecutor, law enforcement officer in the State, and any State, county, or local government official or employee for the purpose of carrying out the powers, functions and duties set forth in this subsection.
(3) The Inspector General, in consultation with the Director of the Division of Criminal Justice in the Department of Law and Public Safety, shall:
(a) establish a liaison and continuing communication regarding the enforcement of laws under the purview of the Office of Plastics and Packaging Management between the Department of Environmental Protection, the Department of Law and Public Safety, and such county and local governments as may be necessary to coordinate activities, share information, and provide any assistance necessary in overseeing enforcement of such environmental laws;
(b) formulate and evaluate proposals for legislative, administrative, and judicial initiatives to strengthen the enforcement of laws under the purview of the Office of Plastics and Packaging Management; and
(c) in connection with the enforcement of laws under the purview of the Office of Plastics and Packaging Management, act as the liaison for the Executive Branch of government with agencies involved in the enforcement of violations of environmental laws outside of the Executive Branch, including federal agencies.
c. No later than September 1
of each year, the commissioner shall provide an annual report to the Governor
and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the
Legislature describing the activities of the Office of Plastics and Packaging
management for the preceding 12 months, including, but not limited to, the
number of enforcement action taken and the aggregate amount of money collected
in penalties.
16. Section 8 of P.L.1970, c.39 (C.13:1E-8) is amended to read as follows:
8. The Advisory Council on Solid Waste Management is empowered to:
a. Request from the commissioner such information concerning the Statewide solid waste management plan or district solid waste management plans as it may deem necessary;
b. Consider any matter relating to the improvement of the Statewide solid waste management plan or district solid waste management plans, and advise the commissioner thereon;
c. [From time to time submit] Submit, at least every five years, and more frequently if deemed in the public interest by the council, to the commissioner any recommendations which it deems necessary for the improvement of the Statewide solid waste management plan or district solid waste management plans;
d. [From time to time submit] Submit, at least every five years, and more frequently if deemed in the public interest by the council, to the commissioner recommendations of any statutory and regulatory changes deemed necessary to implement the comprehensive State regulated medical waste management plan prepared by the Department of Environmental Protection and the Department of Health pursuant to section 13 of P.L.1989, c.34 (C.13:1E-48.13);
e. [From time to time submit] Submit, at least every five years, and more frequently if deemed in the public interest by the council, to the commissioner recommendations of any statutory and regulatory changes deemed necessary to implement the State Recycling Plan goals;
f. Study any regulations adopted by the department and the Department of Health concerning the management of regulated medical waste and make its recommendations for their improvement to the commissioner;
g. Study and investigate the state of the art and the technical capabilities and limitations of regulations concerning solid waste collection, disposal or recycling activities and report its findings and recommendations thereon to the commissioner;
h. Study and investigate the need for programs for the long-range technical support of solid waste programs and solid waste management plans, and report its findings and recommendations thereon to the commissioner;
i. Hold public hearings annually or more frequently in regard to existing solid waste statutes and regulations and upon the state of the art and technical capabilities and limitations in solid waste collection, disposal or recycling activities and report its recommendations thereon to the commissioner;
j. Coordinate between local governments, recycling service providers, producer responsibility organizations, other stakeholders, and the department to address issues associated with P.L. , c. (C. ) (pending before the Legislature as this bill);
k. Act as a regulatory clearinghouse to aid participating producers with compliance with P.L. , c. (C. ) (pending before the Legislature as this bill);
l. Assist the department in reviewing relevant data to assess whether the recycling and source reduction requirements established pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) should be adjusted; and
m. Review and submit comments on packaging product stewardship plans submitted to the council pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.1991, c.292, s.2)
17. The Commissioner of Environmental Protection shall adopt rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary to implement the provisions of this act.
18. This act shall take effect immediately.
STATEMENT
This committee substitute would require certain manufacturers and distributors of products that utilize packaging to adopt and implement plans to decrease the amount of packaging that is disposed of as solid waste, and to pay an annual surcharge to the State, the proceeds of which would be used to improve the State's recycling system. The bill would also establish a new Office of Plastics and Packaging Management in the Department of Environmental Protection (DEP) to oversee the administration and enforcement of laws dealing with pollution from plastic and other packaging.
The bill would require the DEP, within one year after the bill's enactment, to conduct a needs assessment of the State's solid waste and recycling system. The needs assessment would be required to include, among other things, an estimate of the costs of solid waste and recycling infrastructure upgrades that are necessary for the State to meet the recycling rate targets for packaging products established in section 5 of the bill. The bill would require the DEP to update the needs assessment every five years.
The bill would authorize producers covered under the bill to collaborate in meeting the bill's requirements by forming producer responsibility organizations (PROs). The DEP would be authorized to approve up to 10 PROs. A PRO would be authorized to submit a single packaging product stewardship plan that covers all producers that are members of the PRO, and to take other actions to facilitate producers' compliance with the bill's provisions. The bill would also authorize producers to comply with the bill's provisions individually, if they so choose.
Section 5 of the bill would establish certain requirements concerning the sale and composition of packaging products. First, it would require that, by 2032, the cumulative amount of single-use packaging products sold, offered for sale, imported, or distributed in or into the State be reduced by 25 percent in volume. At least 10 percent of this reduction would be required to be achieved by shifting to reusable products or by eliminating plastic components. Second, it would require that, by 2034, all packaging products be either compostable or recyclable. Third, it would require that, by 2036, the recycling rate of packaging products in the State be at least 65 percent.
The bill would require each PRO, no later than 5 years after the bill's enactment, to develop and implement a packaging product stewardship plan (plan). Each PRO would be required to first submit a draft of its plan to the Advisory Council on Solid Waste Management, established pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), for review and comment. The PRO would then be required to submit its plan to the DEP for approval. The bill would establish various requirements for the content of a plan, including that it identify the strategies that will be used by participating producers to reduce, through product design modifications and program innovation, the amount of material that is used for each packaging product and the amount of waste resulting from the use of each packaging product. The plan would also be required to include a detailed budget, which would be required to be evaluated by an independent financial auditor to ensure that it is sufficient to costs of implementing the plan. The PRO would raise money to fund the implementation of the plan by imposing fees on its members. The fees would be proportional to the amount of packaging produced by the member, as well as the environmental impact of the packaging.
The bill would also establish the "Packaging Reduction and Recycling Fund" in the Department of the Treasury. Moneys in the fund would be used to (1) fund efforts to improve the State's recycling system, as identified in the Statewide needs assessment, in the form of grants or low-interest loans issued by the DEP, or (2) to administer and enforce the provisions of the bill. Each PRO (and any producers not participating in a PRO) would be assessed an annual surcharge by the Division of Taxation in the Treasury, and the moneys from the surcharge would be placed in the "Packaging Reduction and Recycling Fund." The total Statewide surcharge would be the amount needed during the following fiscal year to administer and enforce the bill's provisions and improve the State's recycling system in order to meet the recycling rate and other targets established by section 5 of the bill, as determined by the Statewide needs assessment, up to a maximum of $120 million. The amount owed by each PRO or non-participating producer would be a prorated share of this total amount.
PROs and non-participating producers would be required by the bill to engage in public outreach, to address public questions and concerns, and to provide consumers with educational and informational materials related to the stewardship plan and the services that are available thereunder. PROs and non-participating producers would also be authorized to provide educational and informational materials to retailers regarding the implementation of the stewardship plan.
The bill would establish an Office of Plastics and Packaging Management (office) in the DEP. The purpose of the office would be to oversee the administration and enforcement of this bill, P.L.2020, c.117 (C.13:1E-99.126 et al.), P.L.2021, c.391 (C.13:1E-99.135 et seq.), and any other law dealing with pollution from plastic and other packaging. The office would include an Inspector General, who would, among other things, act as a liaison between the DEP, the Department of Law and Public Safety, county prosecutor's offices, and other local governments, regarding the enforcement of laws under the purview of the office.
The bill would amend existing law to add several duties regarding the implementation of the bill's provisions to the duties of the Advisory Council on Solid Waste Management (council), including a duty to review packaging product stewardship plans submitted by PROs and non-participating producers. The bill would also require certain existing recommendations from the council to be provided to the DEP commissioner at least every five years, rather than "from time to time," as stated in current law.
Finally, the bill would establish various civil and administrative penalties for persons who violate the provisions of the bill, any rules or regulations adopted pursuant thereto, any stewardship plan approved thereunder, or any order issued by the DEP commissioner in enforcing the bill.
