An Act to establish a mattress recycling program in the Commonwealth

1 of 1 HOUSE DOCKET, NO. 3107 FILED ON: 2/18/2021 HOUSE . . . . . . . . . . . . . . . No. 988 The Commonwealth of Massachusetts _________________ PRESENTED BY: Edward R. Philips _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act to establish a mattress recycling program in the Commonwealth. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: DATE ADDED: Edward R. Philips 8th Norfolk 2/18/2021 Paul McMurtry 11th Norfolk 2/24/2021 Mathew J. Muratore 1st Plymouth 2/24/2021 Patrick M. O'Connor Plymouth and Norfolk 3/4/2021 John H. Rogers 12th Norfolk 3/8/2021 Tommy Vitolo 15th Norfolk 6/16/2021 Jessica Ann Giannino 16th Suffolk 6/22/2021 Natalie M. Higgins 4th Worcester 9/7/2021 Jamie Zahlaway Belsito 4th Essex 1/26/2022 Danillo A. Sena 37th Middlesex 1/26/2022 1 of 11 HOUSE DOCKET, NO. 3107 FILED ON: 2/18/2021 HOUSE . . . . . . . . . . . . . . . No. 988 By Mr. Philips of Sharon, a petition (accompanied by bill, House, No. 988) of Edward R. Philips and others for legislation to establish a mattress recycling program in the Commonwealth. Environment, Natural Resources and Agriculture. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Second General Court (2021-2022) _______________ An Act to establish a mattress recycling program in the Commonwealth. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 Section 1. Definitions 2 (1) "Brand" means a name, symbol, word or mark that attributes a mattress to the 3 producer of such mattress; 4 (2) “Commissioner” means the Commissioner of the Department of Environmental 5 Protection; 6 (3) "Covered entity" means any political subdivision of the state, mattress retailer, 7 permitted transfer station, waste-to-energy facility, health care facility, educational facility, 8 military base or commercial or nonprofit lodging establishment that possesses a discarded 9 mattress that was used and discarded in this state. "Covered entity" does not include any 10 renovator, refurbisher or any person who only transports a discarded mattress; 11 (4) "Department" means the Department of Environmental Protection ; 2 of 11 12 (5) "Discarded mattress" means any mattress that a consumer discarded, intends to 13 discard or abandoned in the state (but does not include mattresses that cannot be safely recycled 14 because they have been contaminated by putrescible solid waste, or are substantially soiled, 15 infested with bedbugs, or pose a risk to worker health or equipment, which units should be 16 disposed of through the existing solid waste system). 17 (6) "Energy recovery" means the process by which all or a portion of solid waste 18 materials are processed or combusted in order to utilize the heat content or other forms of energy 19 derived from such solid waste materials; 20 (7) "Foundation" means any ticking-covered structure that is used to support a 21 mattress and that is composed of one or more of the following: A constructed frame, foam or a 22 box spring, whether stationary, adjustable or foldable. "Foundation" does not include any bed 23 frame or base made of wood, metal or other material that rests upon the floor and that serves as a 24 brace for a mattress; 25 (8) "Mattress" means any resilient material or combination of materials that is 26 enclosed by ticking, used alone or in combination with other products, and that is intended for or 27 promoted for sleeping upon. "Mattress" includes any foundation and any used or renovated 28 mattress. "Mattress" does not include any mattress pad, mattress topper, sleeping bag, pillow, car 29 bed, carriage, basket, dressing table, stroller, playpen, infant carrier, lounge pad, crib or bassinet 30 mattress, crib bumper, liquid or gaseous filled ticking, including any water bed and any air 31 mattress that does not contain upholstery material between the ticking and the mattress core, and 32 upholstered furniture, including a sleeper sofa; 3 of 11 33 (9) "Mattress core" means the principal support system that is present in a mattress, 34 including, but not limited to, springs, foam, air bladder, water bladder or resilient filling; 35 (10) "Mattress recycling council" or "council" means the nonprofit organization 36 created by producers or created by any trade association that represents producers who account 37 for a majority of mattress production in the United States to design, submit and implement the 38 mattress stewardship program described in section 2 of this act; 39 (11) "Mattress stewardship fee" means the amount added to the purchase price of a 40 mattress sold to a consumer or to an ultimate end user in this state that is necessary to cover the 41 cost of collecting, transporting and processing discarded mattresses by the council pursuant to 42 the mattress stewardship program; 43 (12) "Mattress stewardship program" or "program" means the state- wide program 44 described in section 2 of this act and implemented pursuant to the mattress stewardship plan; 45 (13) "Mattress topper" means any item that contains resilient filling, with or without 46 ticking, that is intended to be used with or on top of a mattress; 47 (14) "Performance goal" means a metric proposed by the council to measure, on an 48 annual basis, the performance of the mattress stewardship program, taking into consideration 49 technical and economic feasibilities, in achieving continuous, meaningful improvement in 50 improving the rate of mattress recycling in the state and any other specified goal of the program; 51 (15) "Producer" means any person who manufactures or renovates a mattress that is 52 sold, offered for sale or distributed in the state under the producer's own name or brand. 53 "Producer" includes (A) the owner of a trademark or brand under which a mattress is sold, 4 of 11 54 offered for sale or distributed in this state, whether or not such trademark or brand is registered in 55 this state, and (B) any person who imports a mattress into the United States that is sold or offered 56 for sale in this state and that is manufactured or renovated by a person who does not have a 57 presence in the United States; 58 (16) "Recycling" means any process in which discarded mattresses, components and 59 by-products may lose their original identity or form as they are transformed into new, usable or 60 marketable materials. "Recycling" does not include the use of destructive incineration; 61 (17) "Renovate" or "renovation" means altering a mattress for the purpose of resale 62 including any one, or a combination of, the following: Replacing the ticking or filling, adding 63 additional filling, or replacing components with new or recycled materials. "Renovate" or 64 "renovation" does not include (A) the stripping of a mattress of its ticking or filling without 65 adding new material, (B) the sanitization or sterilization of a mattress without otherwise altering 66 the mattress, or (C) the altering of a mattress by a renovator when a person retains the altered 67 mattress for personal use, in accordance with regulations of the Department of Consumer and 68 Business Services; 69 (18) "Renovator" means any person who renovates discarded mattresses for the 70 purpose of reselling such mattresses to consumers; 71 (19) "Retailer" means any person who sells mattresses to a consumer or to an ultimate 72 end user in this state or offers mattresses to a consumer in this state; 73 (20) "Sanitization" means the direct application of chemicals to a mattress to kill 74 human disease-causing pathogens; 5 of 11 75 (21) "Sale" means the transfer of title of a mattress for consideration, including, but 76 not limited to, the use of a sales outlet, catalog, Internet web site or similar electronic means to a 77 consumer or to an ultimate end user in the state; 78 (22) "Sterilization" means the mitigation of any deleterious substances or organisms, 79 including human disease-causing pathogens, fungi and insects from a mattress or filling material 80 using a chemical or heat process; 81 (23) "Ticking" means the outermost layer of fabric or material of a mattress. "Ticking" 82 does not include any layer of fabric or material quilted together with, or otherwise attached to, 83 the outermost layer of fabric or material of a mattress; and 84 (24) "Upholstery material" means all material, loose or attached, between the ticking 85 and the core of a mattress. 86 Sec. 2. (a) Within 180 days following enactment of this title, each producer, or such 87 producer's designee, shall join the mattress recycling council and by said date such council shall 88 submit a plan, for approval by the Commissioner, to establish a state-wide mattress stewardship 89 program, as described in this subsection. Retailers may participate in said council. Such mattress 90 stewardship program shall, to the extent it is technologically feasible and economically practical: 91 (1) provide for free, convenient and accessible state-wide opportunities for the receipt of 92 discarded mattresses from any person in the state with a discarded mattress that was used and 93 discarded in the state, including, but not limited to, participating covered entities that accumulate 94 and segregate a minimum of one hundred discarded mattresses for collection at one time; (2) 95 provide for free collection of discarded mattresses from transfer stations that accumulate and 96 segregate fewer than fifty mattresses, provided the transfer stations require such collection due to 6 of 11 97 space or permit requirements; (3) provide for council-financed end-of-life management for 98 discarded mattresses collected pursuant to subdivisions (2) and (3) of this subsection; (4) provide 99 suitable storage containers at, or make other mutually agreeable storage and transport 100 arrangements for, permitted transfer stations for segregated, discarded mattresses, at no cost to 101 such municipality, provided such transfer station makes space available for such purpose and 102 imposes no fee for placement of such storage container on the transfer station's premises; (5) 103 provide that the organization will conduct research, as needed, related to improving used 104 mattress collection, dismantling, and recycling operations, including pilot programs to test new 105 processes, methods, or equipment on a local, regional, or otherwise limited basis; (6) include a 106 mattress stewardship fee that is sufficient to cover the costs of operating and administering the 107 program. 108 (b) The plan submitted pursuant to subsection (a) of this section shall: (1) Identify 109 each producer participating in the program; (2) describe the fee structure for the program; (3) 110 establish performance goals for the first two years of the program; (4) identify proposed facilities 111 to be used by the program; (5) describe methods used to coordinate activities with existing used 112 mattress collecting and recycling programs, including existing nonprofit mattress recyclers, and 113 with other relevant parties as appropriate, with regard to the proper management or recycling of 114 discarded or abandoned mattresses, for purposes of providing the efficient delivery of services 115 and avoiding unnecessary duplication of effort and expense; (6) set convenience goals and a 116 timeline for implementing and achieving convenient access to the program; (7) detail how the 117 program will promote the recycling of discarded mattresses consistent with the state’s solid 118 waste management hierarchy; and (8) include a description of the public education program. 7 of 11 119 (c) The council shall set the amount of the mattress recycling fee that shall be added 120 to the purchase price of a mattress at the point of sale and include the fee amount in the annual 121 budget. The council shall establish and implement a fee structure that covers, but does not 122 exceed, the costs of developing the plan described in subsection (b) of this section, operating and 123 administering the program described in subsection (a) of this section and maintaining a financial 124 reserve sufficient to operate the program over a multi-year period of time in a fiscally prudent 125 and responsible manner. The council shall set the fee as a flat rate and not as a percentage of the 126 purchase price. The council shall maintain all records relating to the program for a period of not 127 less than three years. 128 (d) Pursuant to the program, recycling shall be preferred over any other disposal 129 method for mattresses, to the extent that recycling is technologically feasible and economically 130 practical. 131 (e) The Commissioner shall approve the plan for the establishment of the mattress 132 stewardship program, provided such plan meets the requirements of subsections 133 (a) to (c), inclusive, of this section. Not later than ninety days after submission of the 134 plan pursuant to this section, the Commissioner shall make a determination whether to approve 135 the plan. Prior to making such determination, the Commissioner shall post the plan on the 136 department's Internet web site and solicit public comments on the plan. In the event that the 137 Commissioner disapproves the plan because it does not meet the requirements of subsections (a) 138 to (d), inclusive, of this section, the Commissioner shall describe the reasons for the disapproval 139 in a notice of determination that the Commissioner shall provide to the council. The council shall 140 revise and resubmit the plan to the Commissioner not later than forty-five days after receipt of 8 of 11 141 notice of the Commissioner’s disapproval notice. Not later than forty-five days after receipt of 142 the revised plan, the Commissioner shall review and approve or disapprove the revised plan and 143 provide a notice of determination to the council. The council may resubmit a revised plan to the 144 Commissioner for approval on not more than two occasions. If the council fails to submit a plan 145 that is acceptable to the Commissioner because it does not meet the requirements of subsections 146 (a) to (c), inclusive, of this section, the Commissioner shall modify a submitted plan to make it 147 conform to the requirements of subsections (a) to (c), inclusive, of this section, and approve it. 148 Not later than one hundred eighty days after the approval of a plan pursuant to this section, or 149 one hundred eighty days, in the case of a plan modified by the Commissioner, the council shall 150 implement the mattress stewardship program. Regardless of when the program commences, the 151 program’s fiscal year shall commence on January 1. 152 (f) (1) The council shall submit any proposed substantial change to the program to 153 the Commissioner for approval. For the purposes of this subdivision, "substantial change" 154 means: (A) A change in the processing facilities to be used for discarded mattresses collected 155 pursuant to the program, or (B) a material change to the system for collecting mattresses. If the 156 Commissioner does not disapprove a proposed substantial change within ninety days of receipt 157 of notification of such proposed substantial change, such proposed substantial change shall be 158 deemed approved. 159 (2) Within 90 days following the end of the program’s second fiscal year, the council 160 shall submit updated performance goals to the Commissioner that are based on the experience of 161 the program during the first two years of the program. 9 of 11 162 (f) The council shall notify the Commissioner of other material changes to the 163 program on an ongoing basis, without resubmission of the plan to the Commissioner for 164 approval. Such changes shall include, but not be limited to, a change in the composition, officers 165 or contact information of the council. 166 (g) Within 90 days following the end of the program’s second fiscal year and every 167 two years thereafter, the council shall propose a mattress stewardship fee for all mattresses sold 168 in this state except those products excluded from the definition of “Mattress” in Section 1. The 169 council may propose a change to the mattress stewardship fee more frequently than once every 170 two years if the council determines such change is needed to avoid funding shortfalls or excesses 171 for the mattress stewardship program. Any proposed mattress stewardship fee shall be reviewed 172 by an auditor to assure that such assessment does not exceed the cost to fund the mattress 173 stewardship program described in subsection (a) of this section and to maintain financial reserves 174 sufficient to operate said program over a multi-year period in a fiscally prudent and responsible 175 manner. Not later than sixty days after the council proposes a mattress stewardship fee, the 176 auditor shall render an opinion to the Commissioner as to whether the proposed mattress 177 stewardship fee is reasonable to achieve the goals set forth in this section. If the auditor 178 concludes that the mattress stewardship fee is reasonable, then the proposed fee shall go into 179 effect. If the auditor concludes that the mattress stewardship fee is not reasonable, the auditor 180 shall provide the council with written notice explaining the auditor's opinion. Not later than sixty 181 days after the council's receipt of the auditor's opinion, the council may either propose a new 182 mattress stewardship fee or provide written comments on the auditor's opinion. If the auditor 183 concludes that the fee is not reasonable, the Commissioner shall decide, based on the auditor's 184 opinion and any comments provided by the council, whether to approve the proposed mattress 10 of 11 185 stewardship fee. Such auditor shall be selected by the council. The cost of any work performed 186 by such auditor pursuant to the provisions of this subsection and subsection (k) of this section 187 shall be funded by the mattress stewardship fee described in this subsection. 188 (h) On and after the implementation of the mattress stewardship program, each 189 manufacturer, renovator, retailer, or distributor that sells a mattress to a consumer or to an 190 ultimate end user in the state shall add the mattress stewardship fee, established pursuant to 191 subsection (a) of this section and described in subsection (h) of this section, to the purchase price 192 for such mattress and shall remit the fee collected to the council. In each transaction described 193 above, the fee shall appear on the invoice and shall be accompanied by a brief description of the 194 fee. The council shall determine the rules and procedures that are necessary and proper to 195 implement the collection of the fee in a fair, efficient, and lawful manner. Any producer who 196 fails to participate in such program shall not sell mattresses in this state. 197 (i) Not later than October fifteenth of each year, the council shall submit an annual 198 report to the Commissioner of the for the most recently completed fiscal year. The 199 Commissioner shall post such annual report on the department's Internet web site. Such report 200 shall include: (1) The tonnage of mattresses collected pursuant to the program from: (A) transfer 201 stations, (B) retailers, and (C) all other covered entities; (2) the tonnage of mattresses diverted 202 for recycling; (3) the weight of mattress materials recycled, as indicated by the weight of each of 203 the commodities sold to secondary markets; (4) the weight of mattress materials sent for disposal 204 at each of the following: (A) Waste-to-energy facilities, (B) landfills, and (C) any other facilities; 205 (5) a summary of the public education that supports the program; (6) an evaluation of the 206 effectiveness of methods and processes used to achieve performance goals of the program; and 207 (7) recommendations for any changes to the program. 11 of 11 208 (j) Two years after the implementation of the program and every three years 209 thereafter, or upon the request of the Commissioner but not more frequently than once a year, the 210 council shall cause an audit of the program to be conducted by an auditor as described in 211 subsection (h) of this section. Such audit shall review the accuracy of the council's data 212 concerning the program and provide any other information requested by the Commissioner, 213 consistent with the requirements of this section, provided such request does not require the 214 disclosure of any proprietary information or trade or business secrets. Such audit shall be paid for 215 by the council. The council shall maintain all records relating to the program for not less than 216 three years. 217 Sec. 3. Upon implementation of the mattress stewardship program described in section 2 218 of this act, any covered entity that participates in such program shall not charge for the receipt of 219 discarded mattresses that are discarded in this state provided covered entities may charge a fee 220 for providing the service of collecting mattresses and may restrict the acceptance of mattresses 221 by number, source or physical condition.