PRINTER'S NO. 2122
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1873
Session of
2021
INTRODUCED BY SHUSTERMAN, RABB, BRIGGS, HERRIN, KINSEY,
ISAACSON, SANCHEZ, HOHENSTEIN, CIRESI, N. NELSON, MADDEN,
FRANKEL, INNAMORATO AND HOWARD, SEPTEMBER 16, 2021
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
SEPTEMBER 16, 2021
AN ACT
Providing for the sale and recycling of covered products;
imposing duties on the Department of Environmental
Protection; and providing for registration of manufacturers.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Definitions.
Chapter 3. Duties of Manufacturers and Retailers
Section 301. Applicability.
Section 302. Sales prohibition.
Section 303. Labeling requirement.
Section 304. Registration.
Section 305. Manufacturer plan and reporting.
Section 306. Retailer responsibility.
Section 307. Exemptions.
Chapter 5. Administration
Section 501. Duties of department.
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Section 502. Annual report.
Section 503. Additional duties.
Section 504. Fees for collection or recycling of covered
products.
Section 505. Environmentally sound management requirements.
Section 506. Enforcement.
Section 507. Regulations.
Chapter 7. Miscellaneous Provisions
Section 701. Expiration.
Section 702. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Extended
Producer Responsibility Act.
Section 102. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Brand." Symbols, words or marks that identify a covered
product, rather than any of its components.
"Covered products." Any part of a package or container,
regardless of recyclability or compostability, that includes
material that is used for the containment, protection, handling,
delivery and presentation of goods that are sold, offered for
sale or distributed to consumers in this Commonwealth, including
through an Internet transaction. The term includes, but is not
limited to, the following classes of materials:
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(1) Containers and packaging, which includes all
flexible or rigid material, including, but not limited to
paper, carton, plastic, glass or metal and any combination of
such materials that:
(i) is used to contain, protect, wrap or present
products at any stage in the movement of the product from
the responsible party to the ultimate user or consumer,
including tertiary packaging used for transportation or
distribution directly to a consumer;
(ii) is intended for a single or short-term use and
designed to contain, protect or wrap products, including
secondary packaging intended for the consumer market; or
(iii) does not include packaging used for the long-
term protection or storage of a product or with a life of
not less than five years.
(2) Paper products, including:
(i) paper and other cellulosic fibers, whether or
not the products are used as a medium for text or images,
except books and materials in the newspapers class of
materials; or
(ii) containers or packaging used to deliver printed
matter directly to the ultimate consumer or recipient.
(3) The term does not include the following:
(i) paper products that could become unsafe or
unsanitary to recycle by virtue of the product's
anticipated use;
(ii) literary, text and reference bound books; and
(iii) beverage containers.
"Curbside recycling." A recycling program that serves single
and multifamily residential units, schools, State or local
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agencies or institutions that are operated by a municipality
under a contract with the municipality, private entity or other
public agency or through approved local solid waste management
plans.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Person." An individual, trust, firm, joint stock company,
business concern, corporation, government agency, partnership,
limited liability company or association.
"Post-consumer recycled content." The content of a product
made of recycled materials derived from post-consumer recycled
materials or feedstock.
"Producer." The following:
(1) a person who manufactures covered products under the
person's own name or brand and who sells or offers for sale
the covered material or product in this Commonwealth;
(2) a person who imports covered products as the owner
or licensee of a trademark or brand under which the covered
material or product is sold or distributed in this
Commonwealth; or
(3) a person or company that offers for sale, sells or
distributes covered products in this Commonwealth.
"Recycling." A process by which covered devices that would
otherwise become solid waste or hazardous waste are collected,
transported, separated and processed, including disassembling,
dismantling or shredding, to be returned to use in the form of
raw materials or products in accordance with environmental
standards established by the Department of Environmental
Protection.
"Retail sales." The sale of covered products through sales
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outlets, via the Internet, mail order or other means, regardless
of whether the retailer has a physical presence within this
Commonwealth.
"Retailer." A person who offers for sale, other than for
resale by the purchaser, covered products in this Commonwealth
by any means, including, but not limited to, sales outlets,
catalogs or the Internet.
"Sale" or "sell." A transfer for consideration of title,
including, but not limited to, a transaction conducted through a
sales outlet, catalog, the Internet or any other similar
electronic means. The term does not include a lease.
"Secretary." The Secretary of Environmental Protection of
the Commonwealth.
CHAPTER 3
DUTIES OF MANUFACTURERS AND RETAILERS
Section 301. Applicability.
The collection, transportation and recycling provisions of
this act shall apply only to covered products used by and
collected from a consumer in this Commonwealth.
Section 302. Sales prohibition.
(a) Manufacturer or retailer prohibition.--No later than 12
months after the effective date of this section, a manufacturer
or retailer may not sell or offer for sale in this Commonwealth
a covered product unless the brand is included on the list of
registered manufacturers maintained by the department pursuant
to subsection (b).
(b) List maintained by department.--No later than six months
after the effective date of this section, the department shall
maintain a list of each registered manufacturer, the brands of
all covered products reported in each manufacturer's
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registration and the brands of covered materials and products
that no manufacturer has registered and post the list on the
department's publicly accessible Internet website.
(c) Duty of retailers to consult list.--
(1) Beginning no later than 12 months after the
effective date of this section, a retailer of a covered
product offered for sale in this Commonwealth shall consult
the list prior to selling the covered product.
(2) A retailer shall be considered to have complied with
paragraph (1) if, on the date that the covered products were
ordered by the retailer, the brand was on the list of
registered manufacturers and is posted on the Internet
website identified in subsection (b).
Section 303. Labeling requirement.
On or after the effective date of this section, no
manufacturer or retailer may sell or offer for sale in this
Commonwealth a covered product unless it is labeled with the
manufacturer's brand whether owned or licensed.
Section 304. Registration.
(a) Manufacturers registration.--
(1) A manufacturer of covered products offered for sale
in this Commonwealth shall register with the department by
January 30, 2022, or six months after the effective date of
this section, whichever is later, and pay a registration fee
of $5,000.
(2) After January 30, 2022, or six months after the
effective date of this section, whichever is later, if a
manufacturer has not previously filed a registration, the
manufacturer shall file a registration with the department
prior to offering for sale or delivery in this Commonwealth
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the manufacturer's covered products and shall pay to the
department a registration fee of $5,000.
(3) A registered manufacturer shall submit an annual
renewal of its registration to the department and pay to the
department a registration fee of $5,000 by January 1 of each
program year. The registration and annual renewal shall
include a list of all brands the manufacturer is using on its
covered products regardless of whether the manufacturer owns
or licenses the brand and shall be effective upon receipt by
the department.
(b) (Reserved).
Section 305. Manufacturer plan and reporting.
(a) Collection, transportation and recycling plan.--
(1) A manufacturer shall establish, conduct and manage a
plan to collect, transport and recycle a quantity of covered
products equal to the manufacturer's sales of covered
products within this Commonwealth. The plan shall be
submitted to the department for review.
(2) A group of manufacturers may submit a joint plan to
collect, transport and recycle the manufacturer's market
share.
(b) Contents of plan.--The plan required under subsection
(a) shall include:
(1) Methods that will be used to collect the covered
products, including the name and locations of proposed
collection sites.
(2) An estimated total weight of covered product to be
collected based upon total sales within this Commonwealth
during the previous year.
(3) The processes that will be used to recycle,
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including a description of the recycling processes that will
be used and the names and locations of recyclers to be
directly utilized by the plan.
(4) Means that will be utilized to publicize the
collection opportunities, including specification of an
Internet website address or toll-free telephone number that
provides information about the manufacturer's program in
sufficient detail to allow consumers to learn how to return
covered products for recycling.
(5) The intention of the manufacturer to fulfill its
obligated share under this act, through operation of its own
program, either individually or with other manufacturers as a
group.
(6) A listing of all collection sites for covered
products.
(7) Other provisions as deemed necessary by the
department.
(c) Reporting by manufacturers.--
(1) In addition to reporting all brands under which its
covered devices are offered for sale, regardless of whether
the manufacturer owns or licenses the brand, the
manufacturer's annual report to the department shall include
the total amount of covered products sold within this
Commonwealth.
(2) The report required under paragraph (1) shall be
submitted to the department upon initial registration and
then by January 30 each year thereafter.
(3) When a manufacturer or group of manufacturers
conducts its own collection, transportation and recycling
program for covered products, the manufacturer or group of
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manufacturers shall submit a report to the department
annually by January 30, beginning the year after the program
is initiated. The report shall consist of the total weight of
covered products collected from consumers in this
Commonwealth by the manufacturer or group of manufacturers
during the previous year and documentation verifying
collection and recycling of the devices.
(d) Approval of plan.--
(1) The department shall review a plan submitted to the
department under subsection (a) and, within 60 days of
receipt of the plan, determine whether the plan complies with
the provisions of this act.
(2) If the department approves the plan, the department
shall notify the manufacturer or group of manufacturers. If
the department rejects the plan, in whole or in part, the
department shall notify the manufacturer or group of
manufacturers and provide the reasons for the plan's
rejection. Rejection of a plan shall be based on the plan's
failure to provide the information required by subsection
(b).
(3) Within 30 days after receipt of the department's
rejection, the manufacturer or group of manufacturers may
revise and resubmit the plan to the department for approval.
(e) Effect of failure to comply with approved plan.--
(1) If the total weight in pounds of covered products
collected, transported and recycled during a program year by
a manufacturer or group of manufacturers is less than the sum
of the estimate contained within the approved plan, the
manufacturer or group of manufacturers shall submit to the
department by March 15 of the following year a payment to
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cover the cost of collecting, transporting and recycling the
unmet portion of the sum of the obligated shares in weight.
(2) The payment shall be equal to the quantity of the
unmet portion, in pounds, plus an additional 10% of such
quantity, multiplied by the cost per pound for collection,
transportation and recycling of covered products.
(3) All payments collected under paragraph (2) shall be
deposited into the Recycling Fund.
(4) The department shall:
(i) Determine the average cost for collection and
transportation of covered products to be used in
calculating the penalties under this paragraph.
(ii) No more frequently than annually and no less
frequently than biennially, review these costs and shall
publish for public comment any proposed changes to these
costs.
(f) Multiple manufacturers.--
(1) Where more than one person may be deemed the
manufacturer of a brand of a covered device, any one or more
persons may assume responsibility for and satisfy the
obligations of a manufacturer under this act with respect to
covered devices bearing that brand.
(2) In the event that no person assumes responsibility
for and satisfies the obligations of a manufacturer under
this act with respect to covered devices bearing that brand,
for purposes of compliance with these provisions, the
responsible party shall be the person who satisfies paragraph
(1) of the definition of "producer."
(g) Construction.--Nothing in this act shall be construed to
exempt a person from liability that person would otherwise have
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under applicable law.
Section 306. Retailer responsibility.
(a) Public notice.--A retailer shall notify customers of the
manner of recycling a covered device and of the locations for
the collection and return of covered devices. This notification
shall occur either by posting the information within the retail
location, by providing the retailer-developed information on the
department's toll-free telephone number, Internet website or
both.
(b) Compliance.--A retailer shall comply with sections
302(a) and (c) and 303.
Section 307. Exemptions.
A producer shall be exempt from the requirements of this act
if the producer generates less than one million dollars of gross
annual revenue within this Commonwealth.
CHAPTER 5
ADMINISTRATION
Section 501. Duties of department.
The department shall:
(1) Encourage the use of existing collection and
consolidation infrastructure for handling covered devices to
the extent that this infrastructure is accessible on a
regular and ongoing basis to at least 85% of the population
of this Commonwealth and is cost effective and
environmentally sound.
(2) Update the list maintained pursuant to section
302(b) upon receipt by the department of a manufacturer's
registration or an annual manufacturer registration renewal.
(3) Organize and coordinate public education and
outreach. The department shall work with retailers to develop
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the appropriate public education and outreach materials and
to assist retailers as necessary in the conduct of their
public education and outreach efforts.
(4) Review all plans submitted by a manufacturer or
group of manufacturers for the collection, transportation and
recycling of covered products.
(5) Oversee the implementation of all approved plans and
take the necessary actions to ensure compliance with approved
plans.
Section 502. Annual report.
The department shall prepare and submit annually to the
General Assembly and post on its publicly accessible Internet
website a report that includes:
(1) The total weight of covered products collected in
this Commonwealth during the previous calendar year.
(2) A complete listing of all manufacturers' collection,
transportation and recycling programs and collection sites
operating in this Commonwealth during the prior calendar
year, the parties that operated them and the amount of
material by weight collected at each site.
(3) An evaluation of the effectiveness of the education
and outreach program.
(4) An evaluation of the existing collection and
processing infrastructure.
(5) Recommendations for expanding the program to include
additional electronic devices. All recommendations shall be
accompanied by an analysis of the positive and negative
aspects along with a cost benefit analysis of the
recommendations.
Section 503. Additional duties.
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The department shall:
(1) Maintain an Internet website and toll-free telephone
number with up-to-date listings of where consumers may take
covered devices for recycling under this act.
(2) No more frequently than annually and no less
frequently than biennially, review the amount of the covered
product recycling and registration fee. The Environmental
Quality Board may promulgate regulations to adjust fees so
that the fees generate sufficient revenue reasonably
necessary to implement this act.
Section 504. Fees for collection or recycling of covered
products.
No manufacturer or retailer may charge a fee or cost to a
consumer for the collection, transportation or recycling of a
covered device, unless a financial incentive of equal or greater
value is provided to the consumer. The financial incentive may
be in the form of a coupon or rebate.
Section 505. Environmentally sound management requirements.
(a) Recycling requirement in accordance with law.--Covered
products collected through a program in this Commonwealth,
whether by a manufacturer, retailer, for-profit or not-for-
profit corporation or unit of government, shall be recycled in a
manner that is in compliance with all applicable Federal, State
and local laws, regulations and ordinances and may not be
exported for disposal in a manner that poses a significant risk
to the public health or the environment.
(b) Performance requirements.--
(1) All entities shall, at a minimum, demonstrate to the
satisfaction of the department that the facility to be used
to recycle covered devices has achieved and maintained third-
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party accredited certification from:
(i) the Responsible Recycling (R2) Practices
Standard;
(ii) the e-Stewards standard; or
(iii) an internationally accredited third-party
environmental management standard for the safe and
responsible handling of covered devices.
(2) All entities shall provide information about
certification and standing to the department along with
other requirements regarding this subsection that may be
mandated by Federal or State law. The department shall make
this information available on its Internet website.
(c) Department to maintain Internet website.--The department
shall maintain an Internet website that includes a list of
entities and organizations that the department has determined
have met the performance requirements.
Section 506. Enforcement.
(a) Judicial action.--
(1) The Commonwealth, through the Attorney General and
the department, may initiate independent action to enforce
the provisions of this act including to remit the
registration fee pursuant to section 304(a) to the department
or failure by the manufacturer to submit a plan as required
under section 305.
(2) Any funds awarded by the court shall be used first
to offset enforcement expenses. Money in excess of the
enforcement expenses shall be deposited into the Recycling
Fund.
(b) Penalties.--
(1) A manufacturer that fails to label new covered
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products with a brand as required under section 303, that
fails to register with the department and pay a registration
fee as required under section 304(a), may be assessed a
penalty of up to $10,000 for the first violation and up to
$25,000 for the second violation and each subsequent
violation in addition to paying for fees, payments and
penalties required by or imposed pursuant to this act.
(2) Except as otherwise provided under paragraph (1), a
person, including a retailer, that violates a requirement of
this act may be assessed a penalty of up to $1,000 for the
first violation and up to $2,000 for the second violation and
each subsequent violation, in addition to paying for fees,
payments and penalties required by or imposed under this act.
(3) All penalty money collected under paragraphs (1) and
(2) shall be deposited into the Recycling Fund.
(c) Injunctive relief.--A violation of the sales
prohibitions of this act may be enjoined in an action in the
name of the Commonwealth brought by the Attorney General.
Section 507. Regulations.
The Environmental Quality Board may adopt rules and
regulations as shall be necessary for the purpose of
administering this act. The regulations shall be promulgated in
accordance with the act of June 25, 1982 (P.L.633, No.181),
known as the Regulatory Review Act.
Section 508. Multistate implementation.
The department may participate in the establishment and
implementation of a regional, multistate organization or compact
to assist in carrying out the requirements of this act.
CHAPTER 7
MISCELLANEOUS PROVISIONS
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Section 701. Expiration.
(a) Duty of secretary to monitor Federal law.--
(1) The secretary shall monitor the enactment of laws by
the Congress of the United States to determine whether a law
has been enacted that establishes a program directed to the
collection and recycling of covered devices.
(2) If the secretary determines that a law is enacted,
the secretary shall publish that determination as a notice in
the Pennsylvania Bulletin. The notice shall include a
statement that the effect of the notice is the immediate
expiration of this act as provided under subsection (b).
(b) Effect of secretary's determination.--This act shall
expire on the date a determination of the secretary under
subsection (a) is published in the Pennsylvania Bulletin.
Section 702. Effective date.
This act shall take effect in 60 days.
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