An act relating to extended producer responsibility for packaging and paper products

BILL AS INTRODUCED H.142 2021 Page 1 of 26 VT LEG #352872 v.1 H.142 1 Introduced by Representative Sheldon of Middlebury 2 Referred to Committee on 3 Date: 4 Subject: Conservation and development; extended producer responsibility; 5 packaging; paper products 6 Statement of purpose of bill as introduced: This bill proposes to require parties 7 responsible for the production or distribution of packaging and paper products 8 to implement or participate in a plan for the collection and management of 9 recyclable packaging and paper products. 10 An act relating to extended producer responsibility for packaging and paper 11 products 12 It is hereby enacted by the General Assembly of the State of Vermont: 13 Sec. 1. 10 V.S.A. chapter 164B is added to read: 14 CHAPTER 164B. EXTENDED PRODUCER RESPONSIBILITY 15 PROGRAM FOR PACKAGING AND PAPER PRODUCTS 16 § 7181. DEFINITIONS 17 As used in this chapter: 18 (1) “Agency” means the Agency of Natural Resources. 19 BILL AS INTRODUCED H.142 2021 Page 2 of 26 VT LEG #352872 v.1 (2) “Covered entity” means any person who presents for collection any 1 amount of covered materials to a stewardship organization implementing an 2 approved producer responsibility plan. 3 (3)(A) “Covered materials” means: 4 (i) packaging; and 5 (ii) printed material. 6 (B) “Covered material” does not mean packaging or paper products 7 that: 8 (i) could become unsafe or unsanitary to recycle by virtue of the 9 anticipated use of the material or design of the material; 10 (ii) has the effect of disrupting recycling processes; or 11 (iii) includes labels, inks, or adhesives containing heavy metals or 12 other hazardous materials that would contaminate the recycling process, as 13 defined or specified by the Secretary. 14 (4)(A) “Packaging” means any containers or materials used for the 15 containment, protection, handling, delivery, and presentation of goods. 16 (B) The term “packaging” includes: 17 (i) packaging intended for the consumer market; 18 (ii) service packaging designed and intended to be used or filled at 19 the point of sale, such as carry-out bags, bulk good bags, take-out bags, and 20 home delivery food service packaging; 21 BILL AS INTRODUCED H.142 2021 Page 3 of 26 VT LEG #352872 v.1 (iii) secondary packaging used to group products for multiunit 1 sale; 2 (iv) tertiary packaging used for transportation or distribution 3 directly to a consumer; and 4 (v) ancillary elements hung or attached to a product and 5 performing a packaging or product display function. 6 (C) The term “packaging” does not include containers or materials: 7 (i)(I) used for the long-term protection or storage of a product; and 8 (II) with a life of not less than five years; or 9 (ii) a beverage container subject to regulation under chapter 53 of 10 this title. 11 (5)(A) “Paper product” means paper that is not packaging that is printed 12 with text or graphics or intended to be printed with text or graphics as a 13 medium for communicating information. “Paper product” includes: 14 (i) newsprint and inserts; 15 (ii) magazines and catalogs; 16 (iii) paper used for copying, writing, or other general use; 17 (iv) telephone directories; 18 (v) flyers; 19 (vi) brochures; and 20 (vii) booklets. 21 BILL AS INTRODUCED H.142 2021 Page 4 of 26 VT LEG #352872 v.1 (B) “Printed material” does not include a bound book. 1 (6) “Plan” means a plan described in section 7184 of this title that 2 describes the manner in which an extended producer responsibility program 3 will be implemented and financed. 4 (7) “Post-consumer recycled content” means the content of a covered 5 material made of feed stock derived from post-consumer recycled materials. 6 (8) “Program” means a program plan implemented by a manufacturer 7 or stewardship organization. 8 (9) “Program year” means the period from July 1 through June 30. 9 (10) “Recyclable” means covered materials that can be sorted by entities 10 processing recyclables in Vermont and for which during the previous two 11 calendar years, there was a consistent market for the reclaimed or processed 12 material to be used in the production of materials or products. 13 (11) “Recycle” means the process of reclaiming or processing covered 14 materials to produce new materials or products. 15 (12) “Recycling rate” means the percentage of discarded covered 16 materials that are reused and recycled from the total amount of discarded 17 material, disposed, reused, or recycled. 18 (13) “Responsible party” means 19 (A) For packaging: 20 BILL AS INTRODUCED H.142 2021 Page 5 of 26 VT LEG #352872 v.1 (i) a person who manufactures under the manufacturer’s own 1 brand a consumer product that uses or is composed of packaging and the 2 consumer product is sold, offered for sale, or distributed in the State; 3 (ii) if subdivision (A)(i) of this subdivision (13) does not apply, a 4 person who is the owner or licensee of a trademark under which packaging is 5 used in a commercial enterprise, sold, offered for sale, or distributed in the 6 State, whether or not the trademark is registered; or 7 (iii) if subdivisions (A)(i) and (ii) of this subdivision (13) do not 8 apply, a person who imports packaging into the State for use in a commercial 9 enterprise, sale, offer for sale, or distribution in the State. 10 (B) For paper products: 11 (i) a person who manufactures paper products under the 12 manufacturer’s own brand and the paper product is sold, offered for sale, or 13 distributed in the State; 14 (ii) if subdivision (B)(i) of this subdivision (13) does not apply, a 15 person who is the owner or licensee of a trademark under which a paper 16 product is used in a commercial enterprise, sold, offered for sale, or distributed 17 in the State, whether or not the trademark is registered; or 18 (iii) if subdivisions (B)(i) and (ii) of this subdivision (13) do not 19 apply, a person who imports a paper product into the State for sale, offer for 20 sale, or distribution in the State. 21 BILL AS INTRODUCED H.142 2021 Page 6 of 26 VT LEG #352872 v.1 (14) “Reusable” means, with respect to covered materials, that the 1 covered material is: 2 (A) technically feasible to reuse for its original purpose by the 3 consumer, is capable of being refilled with materials available to the consumer, 4 or is collected and refilled by the producer; and 5 (B) is reusable or refillable for such number of cycles, but not less 6 than 100 cycles, as the Secretary determines to be appropriate for the covered 7 material. 8 (15) “Secretary” means the Secretary of Natural Resources. 9 (16) “Sell” or “sale” means any transfer for consideration of title or of 10 the right to use, by lease or sales contract, covered materials, including transfer 11 of covered materials into the State through sales catalogues, the telephone, or 12 the Internet. “Sell” or “sale” does not include the sale, resale, lease, or transfer 13 of used covered materials or a manufacturer’s wholesale transaction with a 14 distributor or a retailer. 15 (17) “Stewardship organization” means an organization, association, or 16 entity that assumes the responsibilities, obligations, and liabilities under this 17 chapter of multiple responsible parties of covered materials. 18 § 7182. SALE OR DISTRIBUTION OF COVERED MATERIALS; 19 EXCEPTIONS 20 BILL AS INTRODUCED H.142 2021 Page 7 of 26 VT LEG #352872 v.1 (a) Prohibition. Beginning on July 1, 2023, a responsible party shall not 1 sell, offer for sale, distribute, or deliver to a consumer or retail establishment 2 for subsequent sale covered material unless all the following have been met: 3 (1) The responsible party is registered with the Secretary of Natural 4 Resources. 5 (2) The responsible party is participating in a stewardship organization 6 implementing an approved program plan. 7 (3) The name of the responsible party, the responsible party’s brand, and 8 the name of the responsible party’s covered materials are submitted to the 9 Agency of Natural Resources and listed on the stewardship organization’s 10 website as covered by an approved program plan. 11 (4) The stewardship organization in which the responsible party 12 participates has submitted an annual report as required under section 7184 of 13 this title. 14 (5) The stewardship organization in which the responsible party 15 participates has conducted a plan audit as required under section 7184 of this 16 title. 17 (b) De minimis exception. A responsible party is exempt from the 18 requirements of this chapter if the responsible party: 19 (1) produces, sells, offers for sale, or distributes less than one ton of 20 covered material per year in the State; or 21 BILL AS INTRODUCED H.142 2021 Page 8 of 26 VT LEG #352872 v.1 (2) has a gross annual revenue of less than $1,000,000.00. 1 § 7183. STEWARDSHIP ORGANIZATION; REGISTRATION 2 (a) Participation in a stewardship organization. A responsible party shall 3 satisfy the requirements of this chapter by participating in a stewardship 4 organization implementing an approved program plan. 5 (b) Qualifications for a stewardship organization. To qualify as a 6 stewardship organization under this chapter, an organization, association, or 7 entity shall: 8 (1) commit to assume the responsibilities, obligations, and liabilities of 9 all responsible parties participating in the stewardship organization; 10 (2) not create unreasonable barriers for participation in the stewardship 11 organization; 12 (3) maintain a public website that lists all responsible parties and brands 13 and products covered by the stewardship organization’s approved program 14 plan; and 15 (4) coordinate with all other stewardship organizations to submit one 16 stewardship plan. 17 (c) Stewardship organization registration requirements. 18 (1) Beginning on July 1, 2022 and annually thereafter, a stewardship 19 organization shall file a registration form with the Secretary. The Secretary 20 BILL AS INTRODUCED H.142 2021 Page 9 of 26 VT LEG #352872 v.1 shall provide the registration form to a stewardship organization. The 1 registration form shall include: 2 (A) a list of the responsible parties participating in the stewardship 3 organization; 4 (B) a list of the brands of each responsible party participating in the 5 stewardship organization; 6 (C) a list of the covered materials of each responsible party 7 participating in the stewardship organization; 8 (D) the name, address, and contact information of a person 9 responsible for ensuring the stewardship organization and its member 10 responsible party’s compliance with this chapter; 11 (E) a description of how the stewardship organization meets the 12 requirements of subsection (b) of this section, including any reasonable 13 requirements for participation in the stewardship organization; and 14 (F) the name, address, and contact information of a person for a 15 nonmember of the stewardship organization to contact regarding how to 16 participate in the stewardship organization to satisfy the requirements of this 17 chapter. 18 (2) A renewal of a registration without changes may be accomplished 19 through notifying the Agency of Natural Resources on a form provided by the 20 Agency. 21 BILL AS INTRODUCED H.142 2021 Page 10 of 26 VT LEG #352872 v.1 (d) Multiple stewardship organizations; implementation. If multiple 1 stewardship organizations register under this chapter, the stewardship 2 organizations shall coordinate and submit to the Secretary one program plan. 3 The multiple stewardship organizations may form a third-party entity to 4 implement the requirements of the chapter for all member stewardship 5 organizations. 6 § 7184. PROGRAM PLANS; REPORT; AUDIT 7 (a) Producer responsibility program; plan required. Prior to January 1, 8 2023, a stewardship organization representing responsible parties shall submit 9 a producer responsibility program plan to the Secretary for review in the 10 manner prescribed by the Secretary. 11 (b) Term. A program plan shall have a term of five years, and the 12 stewardship organization shall review and update the program plan every five 13 years following approval of the original program plan. The Secretary may 14 require the plan to be reviewed or revised prior to the termination of a plan 15 term if: 16 (1) the Secretary has cause to believe that the minimum post-consumer 17 recycled content rates, minimum recycling rates, fair and equitable payment to 18 collectors and processors, or other program plan factors are not being met or 19 followed by the stewardship organization; or 20 BILL AS INTRODUCED H.142 2021 Page 11 of 26 VT LEG #352872 v.1 (2) the Secretary determines a change in circumstances warrants 1 revision of the plan. 2 (c) Program plan; minimum requirements. Each program plan shall 3 include, at a minimum, all of the following: 4 (1) List of participants. The program plan shall list all the responsible 5 parties, brands, and covered materials covered by the plan. 6 (2) Free collection of covered materials. 7 (A) The program plan shall provide for free collection of recyclable 8 covered material from covered entities, including covered material collected 9 through curbside collection services, at recycling centers and transfer stations, 10 or at public spaces. 11 (B) A stewardship organization shall accept all recyclable covered 12 material collected from a covered entity and shall not refuse the collection of 13 covered material based on the brand or responsible party for the covered 14 material. 15 (C) The program plan shall provide for the payment to collectors, 16 including curbside collection and recycling center and transfer station 17 collection, and material recovery facilities at a rate that covers the cost of 18 collection, transportation, processing, and marketing of recyclable covered 19 material. Costs include administration, facility and equipment, maintenance, 20 fuel, and labor. The program plan shall summarize how the stewardship 21 BILL AS INTRODUCED H.142 2021 Page 12 of 26 VT LEG #352872 v.1 organization shall fulfill responsibility for costs, including the rates to be paid 1 under the plan to collectors as determined by the advisory council. 2 (D) The program plan shall include funding for infrastructure and 3 market development, including criteria for infrastructure investment. 4 (3) Convenient standard. The program plan shall: 5 (A) comply with State law for the collection of covered materials, 6 including existing requirements for the collection of mandated recyclables 7 under chapter 159 of this title; 8 (B) allow all public and privately owned collection locations to opt to 9 be a collection facility for covered materials; 10 (C) allow all curbside collection providers to opt to be a curbside 11 collection service provider for covered material; and 12 (D) utilize all recovery facilities in existence on July 1, 2021 at the 13 capacity of those facilities on that date. 14 (4) Funding mechanism. 15 (A) The program plan shall include details, including a percentage of 16 program funding, on how the stewardship organization shall fund each of the 17 following: 18 (i) implementation and administration of the program plan; 19 (ii) collection of covered materials for recycling; 20 (iii) processing of covered materials for recycling; 21 BILL AS INTRODUCED H.142 2021 Page 13 of 26 VT LEG #352872 v.1 (iv) research and development for improvement of markets and 1 infrastructure; and 2 (v) education. 3 (B) The funding mechanism shall include: 4 (i) incentives for responsible parties based on the ability to reuse 5 covered material, post-consumer recycled content of covered material, and 6 recyclability of the covered material; and 7 (ii) penalties or increased fees for responsible parties for covered 8 materials that disrupt the solid waste or recycling system in the State, are a 9 common source of litter, or may only be managed through landfill disposal. 10 (C) The plan shall include how stewardship organizations will 11 equitably assign to member responsible parties the responsibility and costs of 12 implementation. A program plan submitted by a third-party entity shall assign 13 equitably among member stewardship organizations and member responsible 14 parties the responsibility and costs of implementing the program plan. 15 (D) The plan shall include funding to compensate and reimburse 16 members of the Packaging and Printed Paper Stewardship Organization. 17 (5) Performance standards. The program plan shall be designed to 18 manage covered materials according to the following of hierarchy from first 19 priority to lowest: source reduction, reuse, recycling, waste to energy, 20 landfilling, and incineration. The program plan shall be designed so that as the 21 BILL AS INTRODUCED H.142 2021 Page 14 of 26 VT LEG #352872 v.1 program plan is implemented, the program achieves higher rates of reuse, 1 recovery, recyclability, and recycled content for covered materials in the State. 2 The program plan shall propose performance standards or goals for covered 3 materials subject to the plan that shall be designed to meet the State goals for 4 reuse of covered material, post-consumer recycled content in covered material, 5 and recyclability of covered material. The performance standards shall be 6 based on weight, material type, or other factors approved by the Secretary and 7 relevant to a covered material. Performance standards may be proposed based 8 on the incentives, penalties, or other modulated fees that the Secretary 9 approves under the funding mechanism for the program plan proposed by a 10 stewardship organization. 11 (6) Public education and outreach. 12 (A) The program plan shall include an education and outreach 13 program that may include media advertising, retail displays, articles in trade 14 and other journals and publications, and other public educational efforts. The 15 education and outreach program shall include a website and consistent 16 statewide messaging to notify the public of the following: 17 (i) that there is a free collection program for covered materials; 18 (ii) how the stewardship organization shall collect covered 19 materials and how a covered entity can access collection programs, including 20 collection services and the location and hours of operation of collection points; 21 BILL AS INTRODUCED H.142 2021 Page 15 of 26 VT LEG #352872 v.1 (iii) what materials are recyclable and any special handling 1 considerations associated with covered materials; 2 (iv) how the stewardship organization will support and work with 3 solid waste planning entities and collectors to provide outreach and education 4 on recycling; and 5 (v) how labels will be used to educate consumers about proper 6 end-of-life management of covered materials and how labeling will improve 7 over time, including the creation of consistent labeling standards. 8 (B) The program plan shall include information on how the education 9 and outreach activities of the plan shall be evaluated for effectiveness. 10 (C) If upon review of implementation of a program plan the 11 Secretary determines that a stewardship organization is not sufficiently 12 meeting performance standards under a program plan, the Secretary may 13 require the stewardship organization to evaluate the existing education and 14 outreach program and implement additional education or outreach activities. 15 (7) Compliance with appropriate environmental standards. In 16 implementing a program plan, a stewardship organization shall comply with all 17 applicable laws related to the collection, transportation, and disposal of 18 covered materials. A stewardship organization shall comply with any special 19 handling or disposal standards established by the Secretary for covered 20 materials or for the program plan of the stewardship organization. 21 BILL AS INTRODUCED H.142 2021 Page 16 of 26 VT LEG #352872 v.1 (8) Litter abatement. The program plan shall describe how it will 1 minimize litter and fund the cleanup of litter from covered materials. 2 (d) Annual report. At the end of each program year, a stewardship 3 organization implementing a program plan under this chapter shall submit an 4 annual report to the Secretary that contains the following: 5 (1) A summary of the implementation of the program plan. 6 (2) The means of collection, including the locations of any collection 7 facilities where covered materials were collected. 8 (3) The type and weight of covered materials collected and the method 9 of disposition. 10 (4) An estimate of the amount of covered materials listed under the 11 program plan that are available for collection by material type and the 12 methodology used to develop this amount. Sales data and other confidential 13 business information provided under this section shall be exempt from public 14 inspection and copying under the Public Records Act and shall be kept 15 confidential. Confidential information shall be redacted from any final public 16 report. 17 (5) The recycling rate by material type and how the achieved rate 18 compares to performance targets. 19 (6) A sample of education materials under the plan. 20 BILL AS INTRODUCED H.142 2021 Page 17 of 26 VT LEG #352872 v.1 (7) The cost of the program, including cost for administration, collection 1 of covered material, processing of covered material, research and development 2 of markets, infrastructure improvement, and education. 3 (e) Plan audit. Once every five years, a stewardship organization shall hire 4 an independent third party to audit the stewardship organization’s program 5 plan and implementation of the plan. The auditor shall examine the 6 effectiveness of the program plan in collecting and disposing of covered 7 materials. The auditor shall examine the cost-effectiveness of the program 8 plan and compare it to that of collection programs for covered materials in 9 other jurisdictions. The auditor shall make recommendations to the Secretary 10 on ways to increase the efficacy and cost-effectiveness of the program plan. 11 § 7185. PACKAGING AND PAPER PRODUCT STEWARDSHIP 12 PROGRAM ADVISORY COUNCIL 13 (a) The Secretary shall appoint the Packaging and Paper Product 14 Stewardship Program Advisory Council to provide advice to the Secretary and 15 responsible parties or stewardship organizations in the drafting or amendment 16 of a program plan and to oversee and provide recommendations for the 17 implementation of a program plan. The Advisory Council shall advise on and 18 review annual reports and shall provide recommendations to the Secretary 19 prior to any regulatory changes related to the stewardship program. The 20 Advisory Council shall advise the stewardship organization regarding rates to 21 BILL AS INTRODUCED H.142 2021 Page 18 of 26 VT LEG #352872 v.1 compensate haulers, transfer stations and drop-off sites that accept covered 1 material, and payment terms. 2 (b) The Advisory Council shall be composed of 13 members appointed by 3 the Secretary, equitably representing all supply chain participants in the 4 recycling system. In making the appointments under this section, the Secretary 5 shall give consideration to representing all geographic regions of the State and 6 all sizes of communities. Members of the Advisory Council shall include the 7 following: 8 (1) two individuals representing national associations of packaging 9 producers; 10 (2) two individuals representing material recovery facilities; 11 (3) two individuals representing waste haulers; 12 (4) two individuals representing county or municipal government waste 13 management programs; 14 (5) one individual representing a statewide association representing 15 retailers; 16 (6) one individual representing a statewide environmental organization; 17 (7) one individual representing a community-based organization or an 18 organization representing equity and underrepresented stakeholders; 19 (8) one individual representing a privately owned transfer station or 20 drop-off center that collects recyclables from the public; and 21 BILL AS INTRODUCED H.142 2021 Page 19 of 26 VT LEG #352872 v.1 (9) one individual representing a publicly owned transfer station or 1 drop-off center that collects recyclables from the public. 2 (c) A stewardship organization may appeal to the Secretary any 3 requirement adopted by the Council under subsection (a) of this section that 4 the stewardship organization believes is arbitrary or capricious or not cost 5 effective. 6 § 7186. ANTITRUST; CONDUCT AUTHORIZED 7 (a) Activity authorized. A responsible party, group of responsible parties, 8 or stewardship organization implementing or participating in an approved 9 program plan under this chapter is individually or jointly immune from liability 10 for conduct under State laws relating to antitrust, restraint of trade, unfair trade 11 practices, and other regulation of trade or commerce under 9 V.S.A. chapter 12 63, subchapter 1, to the extent that the conduct is reasonably necessary to plan, 13 implement, and comply with the responsible party’s, group of responsible 14 parties’, or stewardship organization’s chosen system for managing discarded 15 covered materials. This subsection shall also apply to conduct of a wholesaler 16 participating in a responsible party’s or stewardship organization’s approved 17 program plan when the conduct is necessary to plan and implement the 18 responsible party’s or stewardship organization’s organized collection or 19 recycling system for discarded covered materials. 20 BILL AS INTRODUCED H.142 2021 Page 20 of 26 VT LEG #352872 v.1 (b) Limitations on anti-trust activity. Subsection (a) of this section shall 1 not apply to an agreement among responsible parties, groups of responsible 2 parties, retailers, wholesalers, or stewardship organizations affecting the price 3 of covered materials or any agreement restricting the geographic area in which 4 or customers to whom covered materials shall be sold. 5 § 7187. AGENCY RESPONSIBILITIES 6 (a) Review and approve program plans. The Secretary shall review and 7 approve or deny program plans submitted under section 7184 of this title. The 8 Secretary shall approve a program plan if the Secretary finds that the plan: 9 (1) complies with the requirements of subsection 7184(a) of this title; 10 (2) provides adequate notice to the public of the collection opportunities 11 available for discarded covered materials; 12 (3) ensures that collection of discarded covered materials shall occur in 13 an environmentally sound fashion that is consistent with the law or with any 14 special handling requirements adopted by the Secretary; and 15 (4) promotes the collection and disposal of discarded covered materials. 16 (b) Plan amendment. The Secretary, in his or her discretion or at the 17 request of a responsible party or stewardship organization, may require a 18 stewardship organization to amend an approved program plan. Amendments 19 to program plans shall be subject to the public input provisions of 20 subsection (c) of this section. 21 BILL AS INTRODUCED H.142 2021 Page 21 of 26 VT LEG #352872 v.1 (c) Public input. The Secretary shall establish a process under which a 1 program plan for discarded covered material is available for public review and 2 comment for 30 days prior to plan approval or amendment. In establishing 3 such a process, the Secretary shall consult with interested persons, including 4 responsible parties, environmental advocacy groups, wholesalers, 5 municipalities, and solid waste management entities. 6 (d) Registrations. The Secretary shall accept, review, and approve or deny 7 registrations required by this chapter. The Secretary may revoke a registration 8 of a responsible party or stewardship organization for actions that are 9 unreasonable, unnecessary, or contrary to the requirements or the policy of this 10 chapter. 11 (e) Supervisory capacity. The Secretary shall act in a supervisory capacity 12 over the actions of a responsible party or stewardship organization registered 13 under this section. In acting in this capacity, the Secretary shall review the 14 actions of the responsible party or stewardship organization to ensure that they 15 are reasonable, necessary, and limited to carrying out requirements of and 16 policy established by this chapter. 17 (f) Special handling requirements. The Secretary may adopt, by rule, 18 special handling requirements for the collection, transport, and disposal of 19 covered materials. 20 BILL AS INTRODUCED H.142 2021 Page 22 of 26 VT LEG #352872 v.1 § 7188. RULEMAKING 1 The Secretary of Natural Resources may adopt rules to implement the 2 requirements of this chapter, including rules addressing: 3 (1) the format, process for, or manner of submission of a program plan 4 or plan amendment for review; 5 (2) special handling or environmental requirements for specific covered 6 materials; 7 (3) contamination standards for specific covered material and the 8 appropriate manner of disposal for contaminated materials; 9 (4) additional materials subject to collection as mandated recyclables 10 under chapter 159 of this title; and 11 (5) reporting requirements for the collection of covered material by 12 entities that are not participating in a stewardship organization and whether 13 such collected covered material can be calculated toward the collection rates of 14 a stewardship organization. 15 § 7189. PRIVATE RIGHT OF ACTION 16 (a) Action against responsible party with no program plan. A stewardship 17 organization implementing an approved program plan in compliance with the 18 requirements of this chapter may bring a civil action against a responsible 19 party for damages when: 20 BILL AS INTRODUCED H.142 2021 Page 23 of 26 VT LEG #352872 v.1 (1) the plaintiff stewardship organization incurs more than $1,000.00 in 1 actual reimbursable costs collecting, handling, recycling, or properly disposing 2 of covered materials sold or offered for sale in the State by the responsible 3 party from whom damages are sought; 4 (2) the responsible party from whom damages are sought can be 5 identified as the responsible party for the materials from a brand or marking on 6 the materials or from other information available to the plaintiff stewardship 7 organization; and 8 (3) the responsible party from whom damages are sought does not 9 operate or participate in an approved stewardship organization or is not 10 otherwise in compliance with the requirements of this chapter. 11 (b) Action against responsible party implementing a program plan. A 12 stewardship organization in compliance with the requirements of this chapter 13 may bring a civil action for damages against a responsible party or another 14 stewardship organization that is in compliance with the requirements of this 15 chapter, provided that: 16 (1) a plaintiff stewardship organization submitted a reimbursement 17 demand to the responsible party or other stewardship organization; and 18 (2) the plaintiff stewardship organization does not receive 19 reimbursement within: 20 (A) 90 days of the reimbursement demand; or 21 BILL AS INTRODUCED H.142 2021 Page 24 of 26 VT LEG #352872 v.1 (B) 60 days after completion of an audit if the responsible party or 1 stewardship organization subject to the reimbursement demand requests an 2 independent audit of the reimbursement demand and the audit confirms the 3 validity of the reimbursement demand. 4 (c) Action against individual responsible party. An action under this 5 section against a responsible party participating in a stewardship organization 6 shall be brought against the stewardship organization implementing the 7 program plan. 8 (d) Role of Agency. The Agency shall not be a party to or be required to 9 provide assistance or otherwise participate in a civil action authorized under 10 this section solely due to its regulatory requirements under this chapter unless 11 subject to subpoena before a court of jurisdiction. 12 (e) Damages; definitions. As used in this section, “damages” means the 13 actual, reimbursable costs a plaintiff stewardship organization incurs in 14 collecting, handling, recycling, or properly disposing of covered material 15 reasonably identified as having originated from another responsible party or 16 stewardship organization. 17 Sec. 2. 10 V.S.A. § 8003 is amended to read: 18 § 8003. APPLICABILITY 19 (a) The Secretary may take action under this chapter to enforce the 20 following statutes and rules, permits, assurances, or orders implementing the 21 BILL AS INTRODUCED H.142 2021 Page 25 of 26 VT LEG #352872 v.1 following statutes, and the Board may take such action with respect to 1 subdivision (10) of this subsection: 2 * * * 3 (30) 3 V.S.A. § 2810, relating to interim environmental media 4 standards; and 5 (31) 10 V.S.A. chapter 124, relating to the trade in covered animal parts 6 or products; and 7 (32) 10 V.S.A. chapter 164B, relating to the Extended Producer 8 Responsibility Program for Packaging and Paper Products. 9 * * * 10 Sec. 3. 10 V.S.A. § 8503 is amended to read: 11 § 8503. APPLICABILITY 12 (a) This chapter shall govern all appeals of an act or decision of the 13 Secretary, excluding enforcement actions under chapters 201 and 211 of this 14 title and rulemaking, under the following authorities and under the rules 15 adopted under those authorities: 16 (1) The following provisions of this title: 17 * * * 18 (V) chapter 124 (trade in covered animal parts or products). 19 (W) chapter 164B (Extended Producer Responsibility Program for 20 Packaging and Paper Products). 21 BILL AS INTRODUCED H.142 2021 Page 26 of 26 VT LEG #352872 v.1 (2) 29 V.S.A. chapter 11 (management of lakes and ponds). 1 (3) 24 V.S.A. chapter 61, subchapter 10 (relating to salvage yards). 2 * * * 3 Sec. 4. AGENCY OF NATURAL RESOURCES’ RECOMMENDATION OF 4 REGISTRATION FEE FOR EXTENDED PRODUCER 5 RESPONSIBILITY PROGRAM FOR PACKAGING AND PAPER 6 PRODUCTS 7 On or before January 15, 2022, the Secretary of Natural Resources shall 8 recommend to the House Committees on Ways and Means and on Natural 9 Resources, Fish, and Wildlife and the Senate Committees on Finance and on 10 Natural Resources and Energy whether a fee for the registration of stewardship 11 organizations should be required under the Extended Producer Responsibility 12 Program for Packaging and Paper Products and under 10 V.S.A. chapter 164B, 13 including a recommended fee amount if applicable. 14 Sec. 5. EFFECTIVE DATE 15 This act shall take effect on passage. 16