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

BILL AS INTRODUCED S.236 2022 Page 1 of 29 VT LEG #358524 v.1 S.236 1 Introduced by Senators Bray, Lyons, Clarkson, Hardy, McCormack and 2 Pearson 3 Referred to Committee on 4 Date: 5 Subject: Conservation and development; extended producer responsibility; 6 packaging; paper products; single-use food service ware 7 Statement of purpose of bill as introduced: This bill proposes to require parties 8 responsible for the production or distribution of packaging and paper products 9 to implement or participate in a plan for the collection and recycling of 10 specified packaging, paper products, and single-use food service ware. 11 An act relating to extended producer responsibility for packaging and paper 12 products 13 It is hereby enacted by the General Assembly of the State of Vermont: 14 Sec. 1. 10 V.S.A. chapter 164B is added to read: 15 CHAPTER 164B. EXTENDED PRODUCER RESPONSIBILITY 16 PROGRAM FOR PACKAGING AND PAPER PRODUCTS 17 § 7181. DEFINITIONS 18 As used in this chapter: 19 (1) “Agency” means the Agency of Natural Resources. 20 BILL AS INTRODUCED S.236 2022 Page 2 of 29 VT LEG #358524 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; 5 (ii) printed material; and 6 (iii) single-use food service ware. 7 (B) “Covered materials” do not mean packaging or paper products 8 that could become unsafe or unsanitary to recycle by virtue of the anticipated 9 use of the material or design of the material. 10 (4)(A) “Packaging” means any containers or materials used for the 11 containment, protection, handling, delivery, and presentation of goods. 12 (B) The term “packaging” includes: 13 (i) packaging intended for the consumer market; 14 (ii) service packaging designed and intended to be used or filled at 15 the point of sale, such as carry-out bags, bulk good bags, take-out bags, and 16 home delivery food service packaging; 17 (iii) secondary packaging used to group products for multiunit 18 sale; 19 (iv) tertiary packaging used for transportation or distribution 20 directly to a consumer; and 21 BILL AS INTRODUCED S.236 2022 Page 3 of 29 VT LEG #358524 v.1 (v) ancillary elements hung or attached to a product and 1 performing a packaging or product display function. 2 (C) The term “packaging” does not include containers or materials: 3 (i)(I) used for the long-term protection or storage of a product; and 4 (II)(aa) with a life of not less than five years; or 5 (bb) intended for reuse for the same or similar purpose; or 6 (ii) a beverage container subject to regulation under chapter 53 of 7 this title. 8 (5)(A) “Paper product” means paper that is not packaging that is printed 9 with text or graphics or intended to be printed with text or graphics as a 10 medium for communicating information. “Paper product” includes: 11 (i) newsprint and inserts; 12 (ii) magazines and catalogs; 13 (iii) paper used for copying, writing, or other general use; 14 (iv) telephone directories; 15 (v) flyers; 16 (vi) brochures; and 17 (vii) booklets. 18 (B) “Printed material” does not include a bound book. 19 BILL AS INTRODUCED S.236 2022 Page 4 of 29 VT LEG #358524 v.1 (6) “Plan” means a plan described in section 7184 of this title that 1 describes the manner in which an extended producer responsibility program 2 will be implemented and financed. 3 (7) “Post-consumer recycled content” means the content of a covered 4 material made of feed stock derived from post-consumer recycled materials. 5 (8) “Program” means a program plan implemented by a responsible 6 party or stewardship organization. 7 (9) “Program year” means the period from July 1 through June 30. 8 (10) “Recyclable” means covered materials that can be sorted by entities 9 processing recyclables to be used in the production of materials or products. 10 (11) “Recycle” means the process of reclaiming or processing covered 11 materials to produce new materials or products. 12 (12) “Recycling rate” means the percentage of discarded covered 13 materials that are reused and recycled from the total amount of discarded 14 material, disposed, reused, or recycled. 15 (13) “Responsible party” means: 16 (A)(i) For items sold in packaging at a physical retail location in this 17 State: 18 (I) if the item is sold in packaging under a manufacturer’s own 19 brand or is sold in packaging that lacks identification of a brand, the producer 20 of the packaging is the person that manufactures the packaged item; 21 BILL AS INTRODUCED S.236 2022 Page 5 of 29 VT LEG #358524 v.1 (II) if the item is manufactured by a person other than the brand 1 owner, the producer of the packaging is the person that is the licensee of a 2 brand or trademark under which a packaged item is used in a commercial 3 enterprise, sold, offered for sale or distributed in or into this State, whether or 4 not the trademark is registered in this State; or 5 (III) if there is no person described in subdivisions (A)(i)(I) and 6 (II) of this subdivision (18) within the United States, the producer of the 7 packaging is the person that imports the packaged item into the United States 8 for use in a commercial enterprise that sells, offers for sale, or distributes the 9 item in this State. 10 (ii) For items sold or distributed in packaging in or into this State 11 through remote sale or distribution: 12 (I) The producer of packaging used to directly protect or 13 contain the item is the same as the producer for purposes of subdivision (A)(i) 14 of this subdivision (13). 15 (II) The producer of packaging used to ship the item to a 16 consumer is the person that packages and ships the item to the consumer. 17 (iii) For all other packaging that is a covered product, the producer 18 of the packaging is the person that first distributes the packaged item in or into 19 this State. 20 BILL AS INTRODUCED S.236 2022 Page 6 of 29 VT LEG #358524 v.1 (B)(i) For printed material that is newsprint and inserts, a magazine, a 1 catalog, a telephone directory, a flyer, a brochure, or a booklet, the producer is 2 the publisher. 3 (ii) For printed material that is not described in subdivision (B)(i) 4 of this subdivision, the producer is: 5 (I) the person that manufactures the printing and writing paper 6 under the person’s own brand; 7 (II) if the printed material is manufactured by a person other 8 than the brand owner, the person that the owner or licensee of a brand or 9 trademark under which the printing and writing paper is used in a commercial 10 enterprise, sold, offered for sale, or distributed in or into this State, whether or 11 not the trademark is registered in this State; or 12 (III) if there is no person described in subdivisions (B)(ii)(I) or 13 (II) of this subdivision (13) within the United States, the person that imports 14 the printing and writing paper into the United States for use in a commercial 15 enterprise that sells, offers for sale, or distributes the printing and writing paper 16 in this State. 17 (C) The producer of single-use food service ware is the person that 18 first sells or distributes the single-use food service ware in or into this State. 19 (14) “Reusable” means, with respect to covered materials, that the 20 covered material is: 21 BILL AS INTRODUCED S.236 2022 Page 7 of 29 VT LEG #358524 v.1 (A) technically feasible to reuse for its original purpose by the 1 consumer, is capable of being refilled with materials available to the consumer, 2 or is collected and refilled by the producer; and 3 (B) is reusable or refillable for such number of cycles, but not less 4 than 100 cycles, as the Secretary determines to be appropriate for the covered 5 material. 6 (15) “Secretary” means the Secretary of Natural Resources. 7 (16) “Sell” or “sale” means any transfer for consideration of title or of 8 the right to use, by lease or sales contract, covered materials, including transfer 9 of covered materials into the State through sales catalogs, the telephone, or the 10 Internet. “Sell” or “sale” does not include the sale, resale, lease, or transfer of 11 used covered materials or a responsible party’s wholesale transaction with a 12 distributor or a retailer. 13 (17) “Single-use food service ware” means paper or plastic plates, 14 wraps, cups, bowls, pizza boxes, cutlery, straws, lids, bags, aluminum foil or 15 clamshells or similar containers that are: 16 (A) generally intended for single use; and 17 (B) sold to a retailer or a dine-in food establishment or a take-out 18 food establishment, regardless of whether the item is used to prepackage food 19 for resale, is filled on site for food ordered by a customer, or is resold as is. 20 BILL AS INTRODUCED S.236 2022 Page 8 of 29 VT LEG #358524 v.1 (18) “Stewardship organization” means an organization, association, or 1 entity that assumes the responsibilities, obligations, and liabilities under this 2 chapter of multiple responsible parties of covered materials. 3 § 7182. SALE OR DISTRIBUTION OF COVERED MATERIALS; 4 EXCEPTIONS 5 (a) Prohibition. Beginning on January 1, 2025, a responsible party shall 6 not sell, offer for sale, distribute, or deliver in or into the State to a consumer or 7 retail establishment for subsequent sale covered material unless all the 8 following have been met: 9 (1) The responsible party is registered with the Secretary of Natural 10 Resources. 11 (2) The responsible party is participating in a stewardship organization 12 implementing an approved program plan. 13 (3) The name of the responsible party, the responsible party’s brand, and 14 the name of the responsible party’s covered materials are submitted to the 15 Agency of Natural Resources and listed on the stewardship organization’s 16 website as covered by an approved program plan. 17 (4) The stewardship organization in which the responsible party 18 participates has submitted an annual report as required under section 7184 of 19 this title. 20 BILL AS INTRODUCED S.236 2022 Page 9 of 29 VT LEG #358524 v.1 (5) The stewardship organization in which the responsible party 1 participates has conducted a plan audit as required under section 7184 of this 2 title. 3 (b) De minimis exception. A responsible party is exempt from the 4 requirements of this chapter if the responsible party: 5 (1) produces, sells, offers for sale, or distributes less than one ton of 6 covered material per year in the State; or 7 (2) has a gross annual revenue of less than $1,000,000.00. 8 § 7183. STEWARDSHIP ORGANIZATION; REGISTRATION 9 (a) Participation in a stewardship organization. A responsible party shall 10 satisfy the requirements of this chapter by participating in a stewardship 11 organization implementing an approved program plan. 12 (b) Qualifications for a stewardship organization. To qualify as a 13 stewardship organization under this chapter, an organization, association, or 14 entity shall: 15 (1) commit to assume the responsibilities, obligations, and liabilities 16 under a program plan of all responsible parties participating in the stewardship 17 organization; 18 (2) not create unreasonable barriers for participation in the stewardship 19 organization; 20 BILL AS INTRODUCED S.236 2022 Page 10 of 29 VT LEG #358524 v.1 (3) maintain a public website that lists all responsible parties and brands 1 and products covered by the stewardship organization’s approved program 2 plan; and 3 (4) coordinate with all other stewardship organizations to submit one 4 stewardship plan. 5 (c) Stewardship organization registration requirements. 6 (1) Beginning on July 1, 2023 and annually thereafter, a stewardship 7 organization shall file a registration form with the Secretary. The Secretary 8 shall provide the registration form to a stewardship organization. The 9 registration form shall include: 10 (A) a list of the responsible parties participating in the stewardship 11 organization; 12 (B) a list of the brands of each responsible party participating in the 13 stewardship organization; 14 (C) a list of the covered materials of each responsible party 15 participating in the stewardship organization; 16 (D) the name, address, and contact information of a person 17 responsible for ensuring the stewardship organization and its member 18 responsible party’s compliance with this chapter; 19 BILL AS INTRODUCED S.236 2022 Page 11 of 29 VT LEG #358524 v.1 (E) a description of how the stewardship organization meets the 1 requirements of subsection (b) of this section, including any reasonable 2 requirements for participation in the stewardship organization; and 3 (F) the name, address, and contact information of a person for a 4 nonmember of the stewardship organization to contact regarding how to 5 participate in the stewardship organization to satisfy the requirements of this 6 chapter. 7 (2) A renewal of a registration without changes may be accomplished 8 through notifying the Agency of Natural Resources on a form provided by the 9 Agency. 10 (d) Multiple stewardship organizations; implementation. If multiple 11 stewardship organizations register under this chapter, the stewardship 12 organizations shall coordinate and submit to the Secretary one program plan. 13 The multiple stewardship organizations may form a third-party entity to 14 implement the requirements of the chapter for all member stewardship 15 organizations. 16 (e) Registration fee. A stewardship organization shall pay to the Secretary 17 an annual registration fee of $1,000.00. 18 § 7184. PROGRAM PLANS; REPORT; AUDIT 19 (a) Producer responsibility program; plan required. Prior to July 1, 2024, a 20 stewardship organization representing responsible parties shall submit a 21 BILL AS INTRODUCED S.236 2022 Page 12 of 29 VT LEG #358524 v.1 producer responsibility program plan to the Secretary for review in the manner 1 prescribed by the Secretary. 2 (b) Term. A program plan shall have a term of five years, and the 3 stewardship organization shall review and update the program plan every five 4 years following approval of the original program plan. The Secretary may 5 require the plan to be reviewed or revised prior to the termination of a plan 6 term if: 7 (1) the Secretary has cause to believe that the minimum post-consumer 8 recycled content rates, minimum recycling rates, fair and equitable payment to 9 collectors and processors, or other program plan factors are not being met or 10 followed by the stewardship organization; or 11 (2) the Secretary determines a change in circumstances warrants 12 revision of the plan. 13 (c) Program plan; minimum requirements. Each program plan shall 14 include, at a minimum, all of the following: 15 (1) List of participants. The program plan shall list all the responsible 16 parties, brands, and covered materials covered by the plan. 17 (2) Collection of covered materials. 18 (A) The program plan shall provide a reasonable reimbursement rate 19 for collection of recyclable covered materials from covered entities, including 20 BILL AS INTRODUCED S.236 2022 Page 13 of 29 VT LEG #358524 v.1 covered materials collected through curbside collection services, at recycling 1 centers and transfer stations, or at public spaces. 2 (B) A stewardship organization shall accept all recyclable covered 3 material collected from a covered entity and shall not refuse the collection of 4 covered material based on the brand or responsible party for the covered 5 material. 6 (3) Rates. The program plan shall provide for payment of reasonable 7 rates to all collectors that opt into the program plan, including a reasonable 8 reimbursement rate for curbside collection and recycling center and transfer 9 station collection, and material recovery facilities. The rates shall be 10 calculated according to the needs assessment required under section 7190 of 11 this title, provided that the rate may vary by market conditions, collector, 12 facility, region, collection conditions, or other criteria established by the 13 Secretary by rule. Rates shall be reviewed annually by the Secretary and the 14 Advisory Council or at the request of the Advisory Council. 15 (4) Compliance. The program plan shall comply with State law for the 16 collection of covered materials, including existing requirements for the 17 collection of mandated recyclables under chapter 159 of this title; 18 BILL AS INTRODUCED S.236 2022 Page 14 of 29 VT LEG #358524 v.1 (5) Funding mechanism. 1 (A) The program plan shall include details, including a percentage of 2 program funding, on how the stewardship organization shall fund each of the 3 following: 4 (i) implementation and administration of the program plan; 5 (ii) collection of covered materials for recycling; 6 (iii) processing of covered materials for recycling; 7 (iv) research and development for improvement of markets and 8 infrastructure; and 9 (v) education. 10 (B) The funding mechanism shall include: 11 (i) incentives for responsible parties based on the ability to reuse 12 covered material, post-consumer recycled content of covered material, and 13 recyclability of the covered material; 14 (ii) penalties or increased fees for responsible parties for covered 15 materials that disrupt the solid waste or recycling system in the State, are a 16 common source of litter, or may only be managed through landfill disposal; 17 (iii) considerations based on a life-cycle analysis of covered 18 materials; and 19 (iv) other considerations relevant to establishing an equitable 20 mechanism. 21 BILL AS INTRODUCED S.236 2022 Page 15 of 29 VT LEG #358524 v.1 (C) The plan shall include how stewardship organizations will 1 equitably assign to member responsible parties the responsibility and costs of 2 implementation. A program plan submitted by a third-party entity shall assign 3 equitably among member stewardship organizations and member responsible 4 parties the responsibility and costs of implementing the program plan. 5 (D) The plan shall include the proposed amount the stewardship 6 organization shall pay to the State for the first two years of the program to 7 cover the State’s costs. The proposed amount shall be based on the needs 8 assessment required under section 7189 of this title. After the first two years 9 of plan implementation, reimbursement to the State under the plan shall be 10 based on the State’s reported actual costs. The stewardship organization shall 11 have six months to reimburse the State from the date of the State’s reported 12 actual costs. 13 (6) Performance standards. 14 (A) The program plan shall be designed to manage covered materials 15 according to the following hierarchy from first priority to lowest: source 16 reduction, reuse, recycling, waste to energy, landfilling, and incineration. 17 (B) The program plan shall be designed so that as the program plan is 18 implemented, the program achieves higher rates of reuse, recovery, 19 recyclability, and recycled content for covered materials in the State. 20 BILL AS INTRODUCED S.236 2022 Page 16 of 29 VT LEG #358524 v.1 (C) The program plan shall establish performance goals for covered 1 materials under the plan. The performance goals shall be designed for each 2 covered material covered by the plan as appropriate and technologically 3 feasible for each covered material type, including goals for: 4 (i) postconsumer content goals; 5 (ii) recovery rate goals for covered materials; 6 (iii) recyclability and recycling rate goals; 7 (iv) packaging reduction goals; 8 (v) compost access or compost rate goals, if applicable and 9 technologically and environmentally feasible; 10 (vi) contamination reduction rate goals; 11 (vii) greenhouse gas reduction goals; 12 (viii) a goal for reusable packaging; and 13 (ix) any other goal that demonstrates positive environmental 14 improvement and is justified in the stewardship plan. 15 (D) Performance goals shall be based on weight, material type, or 16 other factors approved by the Secretary and relevant to a covered material. 17 (E) Performance standards may be proposed based on the incentives, 18 penalties, or other modulated fees that the Secretary approves under the 19 funding mechanism for the program plan proposed by a stewardship 20 organization. 21 BILL AS INTRODUCED S.236 2022 Page 17 of 29 VT LEG #358524 v.1 (F) The plan shall require the stewardship organization and its 1 members to reduce all covered material covered by the plan to the maximum 2 extent practicable and by not less than 25 percent by January 2035, as 3 determined from a baseline year established by the stewardship organization 4 that takes into consideration current source reduction accomplishment by 5 producers. 6 (7) Public education and outreach. 7 (A) The program plan shall include an education and outreach 8 program that may include media advertising, retail displays, articles in trade 9 and other journals and publications, and other public educational efforts. The 10 education and outreach program shall include a website and consistent 11 statewide messaging to notify the public of the following: 12 (i) that there is a collection and recycling program for covered 13 materials; 14 (ii) how the stewardship organization shall collect and recycle 15 covered materials and how a covered entity can access collection programs, 16 including collection services and the location and hours of operation of 17 collection points; 18 (iii) what materials are recyclable and any special handling 19 considerations associated with covered materials; 20 BILL AS INTRODUCED S.236 2022 Page 18 of 29 VT LEG #358524 v.1 (iv) how the stewardship organization will support and work with 1 solid waste planning entities and collectors to provide outreach and education 2 on recycling; and 3 (v) how labels will be used to educate consumers about proper 4 end-of-life management of covered materials and how labeling will improve 5 over time, including the creation of consistent labeling standards. 6 (B) The program plan shall include information on how the education 7 and outreach activities of the plan shall be evaluated for effectiveness. 8 (C) If upon review of implementation of a program plan the 9 Secretary determines that a stewardship organization is not sufficiently 10 meeting performance standards under a program plan, the Secretary may 11 require the stewardship organization to evaluate the existing education and 12 outreach program and implement additional education or outreach activities. 13 (8) Compliance with appropriate environmental standards. In 14 implementing a program plan, a stewardship organization shall comply with all 15 applicable laws related to the collection, transportation, and disposal of 16 covered materials. A stewardship organization shall comply with any special 17 handling or disposal standards established by the Secretary for covered 18 materials or for the program plan of the stewardship organization. 19 (9) Recyclable materials. A proposed list of recyclable materials to be 20 collected under the plan. 21 BILL AS INTRODUCED S.236 2022 Page 19 of 29 VT LEG #358524 v.1 (10) 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 S.236 2022 Page 20 of 29 VT LEG #358524 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 (8) The reasonableness and adequacy of rates for collection and 4 transportation under the program. 5 (9) Rates of achievement for all performance goals in the plan. 6 (10) Any changes to the proposed list of recyclable materials to be 7 collected under the plan. 8 (e) Plan audit. Once every five years, a stewardship organization shall hire 9 an independent third party to audit the stewardship organization’s program 10 plan and implementation of the plan. The auditor shall examine the 11 effectiveness of the program plan in collecting and recycling of covered 12 materials. The auditor shall make recommendations to the Secretary on ways 13 to increase the efficacy and cost-effectiveness of the program plan. 14 § 7185. PACKAGING AND PAPER PRODUCT STEWARDSHIP 15 PROGRAM ADVISORY COUNCIL 16 (a) The Secretary shall appoint the Packaging and Paper Product 17 Stewardship Program Advisory Council to provide nonbinding advice to the 18 Secretary and responsible parties or stewardship organizations in the drafting 19 or amendment of a program plan and to oversee and provide recommendations 20 for the implementation of a program plan, including development of 21 BILL AS INTRODUCED S.236 2022 Page 21 of 29 VT LEG #358524 v.1 reasonable rate payments, annual reports, and needs assessments. The 1 Advisory Council shall advise on and review annual reports and shall provide 2 recommendations to the Secretary prior to any regulatory changes related to 3 the stewardship program. The Advisory Council shall advise the stewardship 4 organization regarding rates to compensate haulers, transfer stations and drop-5 off sites that accept covered material, and payment terms. 6 (b) The Advisory Council shall be composed of up to 21 members 7 appointed by the Secretary, equitably representing all supply chain participants 8 in the recycling system. In making the appointments under this section, the 9 Secretary shall give consideration to representing all geographic regions of the 10 State and all sizes of communities. Members of the Advisory Council shall 11 include the following: 12 (1) one individual representing the PRO, who will represent a consumer 13 brand or other responsible party; 14 (2) two individuals representing manufacturers of covered materials or 15 national associations of packaging producers; 16 (3) two individuals representing manufacturers of post-consumer 17 material or associations representing them; 18 (4) two individuals representing manufacturers of virgin covered 19 materials or associations representing suppliers of substrates of covered 20 materials; 21 BILL AS INTRODUCED S.236 2022 Page 22 of 29 VT LEG #358524 v.1 (5) two individuals representing material recovery facilities in the State, 1 one of whom shall represent public facilities and one of whom shall represent 2 private facilities; 3 (6) two individuals representing waste haulers, one of whom shall 4 represent large haulers and one of whom will represent small haulers; 5 (7) two individuals representing county or municipal government waste 6 management programs; 7 (8) two individuals representing a retailer or statewide association 8 representing retailers; 9 (9) one individual representing a statewide environmental organization; 10 (10) one individual representing a community-based organization or an 11 organization representing equity and underrepresented stakeholders; 12 (11) one individual representing a privately owned transfer station or 13 drop-off center that collects recyclables from the public; 14 (12) one individual representing a publicly owned transfer station or 15 drop-off center that collects recyclables from the public; and 16 (13) at the discretion of the Secretary, two open seats, to which the 17 Secretary may appoint additional, rotating advisory council members as 18 needed. 19 (c) An individual appointed to the Council may be appointed to or 20 represent only one of the positions on the Council. 21 BILL AS INTRODUCED S.236 2022 Page 23 of 29 VT LEG #358524 v.1 (d) The Secretary shall call the first meeting of the Council. The Agency 1 of Natural Resources shall provide administrative, technical, and legal support 2 to the Council. 3 § 7186. ANTITRUST; CONDUCT AUTHORIZED 4 (a) Activity authorized. A responsible party, group of responsible parties, 5 or stewardship organization implementing or participating in an approved 6 program plan under this chapter is individually or jointly immune from liability 7 for conduct under State laws relating to antitrust, restraint of trade, unfair trade 8 practices, and other regulation of trade or commerce under 9 V.S.A. 9 chapter 63, subchapter 1, to the extent that the conduct is reasonably necessary 10 to plan, implement, and comply with the responsible party’s, group of 11 responsible parties’, or stewardship organization’s chosen system for managing 12 discarded covered materials. This subsection shall also apply to conduct of a 13 wholesaler participating in a responsible party’s or stewardship organization’s 14 approved program plan when the conduct is necessary to plan and implement 15 the responsible party’s or stewardship organization’s organized collection or 16 recycling system for discarded covered materials. 17 (b) Limitations on antitrust activity. Subsection (a) of this section shall not 18 apply to an agreement among responsible parties, groups of responsible 19 parties, retailers, wholesalers, or stewardship organizations affecting the price 20 BILL AS INTRODUCED S.236 2022 Page 24 of 29 VT LEG #358524 v.1 of covered materials or any agreement restricting the geographic area in which 1 or customers to whom covered materials shall be sold. 2 § 7187. AGENCY RESPONSIBILITIES 3 (a) Review and approve program plans. The Secretary shall review and 4 approve or deny program plans submitted under section 7184 of this title. The 5 Secretary shall approve a program plan if the Secretary finds that the plan: 6 (1) complies with the requirements of subsection 7184(a) of this title; 7 (2) provides adequate notice to the public of the collection opportunities 8 available for discarded covered materials; 9 (3) ensures that collection of discarded covered materials shall occur in 10 an environmentally sound fashion that is consistent with the law or with any 11 special handling requirements adopted by the Secretary; and 12 (4) promotes the collection and disposal of discarded covered materials. 13 (b) Plan amendment. The Secretary, in his or her discretion or at the 14 request of a responsible party or stewardship organization, may require a 15 stewardship organization to amend an approved program plan. Amendments 16 to program plans shall be subject to the public input provisions of 17 subsection (c) of this section. 18 (c) Public input. The Secretary shall establish a process under which a 19 program plan for discarded covered material is available for public review and 20 comment for 30 days prior to plan approval or amendment. In establishing 21 BILL AS INTRODUCED S.236 2022 Page 25 of 29 VT LEG #358524 v.1 such a process, the Secretary shall consult with interested persons, including 1 responsible parties, environmental advocacy groups, wholesalers, 2 municipalities, and solid waste management entities. 3 (d) Registrations. The Secretary shall accept, review, and approve or deny 4 registrations required by this chapter. The Secretary may revoke a registration 5 of a responsible party or stewardship organization for actions that are 6 unreasonable, unnecessary, or contrary to the requirements or the policy of this 7 chapter. 8 (e) Supervisory capacity. The Secretary shall act in a supervisory capacity 9 over the actions of a responsible party or stewardship organization registered 10 under this section. In acting in this capacity, the Secretary shall review the 11 actions of the responsible party or stewardship organization to ensure that they 12 are reasonable, necessary, and limited to carrying out requirements of and 13 policy established by this chapter. 14 (f) Special handling requirements. The Secretary may adopt, by rule, 15 special handling requirements for the collection, transport, and disposal of 16 covered materials. 17 (g) Annual report of costs. On or before March 1, 2027, and annually 18 thereafter, the Agency shall report to the General Assembly and stewardship 19 organizations the Agency’s actual costs of administering the requirements of 20 this chapter for the previous calendar year. 21 BILL AS INTRODUCED S.236 2022 Page 26 of 29 VT LEG #358524 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. NEEDS ASSESSMENT 16 (a) Prior to approval of a producer responsibility plan under this section, an 17 independent third party approved by the Secretary shall conduct a needs 18 assessment to evaluate: 19 (1) current funding needs for a plan, including operational and capital 20 impacting recycling access and availability; 21 BILL AS INTRODUCED S.236 2022 Page 27 of 29 VT LEG #358524 v.1 (2) existing State statutory provisions and funding sources for recycling, 1 reuse, reduction, and recovery; 2 (3) the collection and hauling system for recyclable materials in the 3 State; 4 (4) the processing capacity and infrastructure for recyclable materials in 5 the State and regionally and identifying necessary capital investments to 6 existing and future reuse and recycling infrastructure; 7 (5) the market conditions and opportunities for recyclable materials in 8 the State and regionally; 9 (6) consumer education needs for recycling, reuse, and reduction of 10 covered materials and products; 11 (7) current recovery and recycling rates in Vermont by material; and 12 (8) costs to the State to administer the requirements of this chapter, 13 including costs of: 14 (A) oversight, including annual oversight; 15 (B) issuance of rules; 16 (C) planning; 17 (D) plan review; 18 (E) compliance actions; 19 (F) outreach and education; 20 (G) enforcement; 21 BILL AS INTRODUCED S.236 2022 Page 28 of 29 VT LEG #358524 v.1 (H) staff positions sufficient to administer the requirements of this 1 chapter; and 2 (I) other activities directly related to subdivisions (a)(8)(A)–(H) of 3 this subsection. 4 (b) Producer responsibility organizations or responsible parties shall fund 5 the needs assessment required by this section. 6 Sec. 2. 10 V.S.A. § 8003 is amended to read: 7 § 8003. APPLICABILITY 8 (a) The Secretary may take action under this chapter to enforce the 9 following statutes and rules, permits, assurances, or orders implementing the 10 following statutes, and the Board may take such action with respect to 11 subdivision (10) of this subsection: 12 * * * 13 (30) 3 V.S.A. § 2810, relating to interim environmental media 14 standards; and 15 (31) 10 V.S.A. chapter 124, relating to the trade in covered animal parts 16 or products; and 17 (32) 10 V.S.A. chapter 164B, relating to the Extended Producer 18 Responsibility Program for Packaging and Paper Products. 19 * * * 20 BILL AS INTRODUCED S.236 2022 Page 29 of 29 VT LEG #358524 v.1 Sec. 3. 10 V.S.A. § 8503 is amended to read: 1 § 8503. APPLICABILITY 2 (a) This chapter shall govern all appeals of an act or decision of the 3 Secretary, excluding enforcement actions under chapters 201 and 211 of this 4 title and rulemaking, under the following authorities and under the rules 5 adopted under those authorities: 6 (1) The following provisions of this title: 7 * * * 8 (V) chapter 124 (trade in covered animal parts or products). 9 (W) chapter 164B (Extended Producer Responsibility Program for 10 Packaging and Paper Products). 11 (2) 29 V.S.A. chapter 11 (management of lakes and ponds). 12 (3) 24 V.S.A. chapter 61, subchapter 10 (relating to salvage yards). 13 * * * 14 Sec. 4. EFFECTIVE DATE 15 This act shall take effect on passage. 16