S3135

An Act concerning packaging and plastic products, supplementing Title 13 of the Revised Statues, and amending P.L.1991, c.520.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in sections 1 through 4 of P.L. , c. (C. ) (pending before the Legislature as this bill):

"Commissioner" means the Commissioner of Environmental Protection.

"Covered material" means plastic packaging material, single-use plastic products collected in the municipal solid waste stream, and plastic products that have the effect of disrupting recycling processes, including, but not limited to, single-use plastic items such as straws, utensils, cups, plates, and plastic bags. "Covered material" shall not include: (1) medical devices and packaging which are included with products regulated as a drug, medical device, or dietary supplement by the United States Food and Drug Administration under the federal "Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq., 21 C.F.R. s.3.2(e), or Pub.L. 103-417, known as the Dietary Supplement Health and Education Act; (2) animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products or biological origin, and other packaging materials regulated by the United States Department of Agriculture pursuant to 21 U.S.C. ss.151-159, known as the Virus-Serum-Toxin Act; (3) packaging regulated by the federal "Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. s.136 et seq. or any other applicable federal law, rule, or regulation; (4) packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard, 29 C.F.R. s.1910.1200; (5) infant formula as defined in 21 U.S.C. s.301 et seq.; and (6) medical foods as defined in 21 U.S.C. s.301 et seq.

"Department" means the Department of Environmental Protection.

"Packaging material" means a discrete material or category of material, regardless of recyclability, including, but not limited to, material types that are flexible, foam, or rigid, which are used for the containment, protection, handling, delivery, transport, distribution, or presentation of another product that is sold, offered for sale, imported, or distributed in the State, including through an internet transaction.

"Producer" means: (1) the in-State manufacturer of a covered material, or a product that is packaged in a covered material, which is sold, offered for sale, or distributed in the State, or (2) if the covered material or product is manufactured outside the State, the producer is the person that first distributes the covered material, or product packaged in a covered material, in or into the State for the purposes of selling or offering for sale the covered material or product, as applicable, in the State.

"Recycling" means a process by which materials which would otherwise become solid waste are collected, separated or processed, and returned to the economic mainstream in the form of raw materials or products. "Recycling" shall not include: (1) energy recovery or energy generation by any means, including, but not limited to, combustion, incineration, pyrolysis, gasification, solvolysis, or waste-to-fuel; (2) any chemical conversion process; or (3) landfill disposal.

"Toxic Packaging Task Force" or "task force" means the task force established by section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

"Toxic substance" means a chemical or chemical class identified by a state agency, federal agency, international intergovernmental agency, accredited research university, or other scientific entity deemed authoritative by the department on the basis of credible scientific evidence as being one or more of the following: (1) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor; (2) a chemical or chemical class that is persistent or bioaccumulative; (3) a chemical or chemical class that may harm the normal development of a fetus or child or cause other developmental toxicity in humans or wildlife; (4) a chemical or chemical class that may harm organs or cause other systemic toxicity; (5) a chemical or chemical class that may have adverse air quality impacts, adverse ecological impacts, adverse soil quality impacts, or adverse water quality impacts; or (6) a chemical or chemical class that the department has determined has equivalent toxicity to the above criteria.

2. (New section) a. Each producer shall reduce the amount, by weight, of covered material annually sold, offered for sale, or distributed in the State, including as packaging for products sold, offered for sale, or distributed in the State by the producer, as compared to the baseline value of the sales during the 12-month period prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), according to the following schedule:

(1) no later than two years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount shall be reduced to 90 percent of the baseline value;

(2) no later than four years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount shall be reduced to 80 percent of the baseline value;

(3) no later than six years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount shall be reduced to 70 percent of the baseline value;

(4) no later than eight years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount shall be reduced to 60 percent of the baseline value; and

(5) no later than 10 years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount shall be reduced to 50 percent of the baseline value.

b. Commencing two years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), no producer shall sell, offer for sale, or distribute in the State a cardboard packaging material, or a product packaged in such a material, unless the cardboard packaging material contains a minimum of 75 percent postconsumer recycled content, by weight, and is recycled at a rate of at least 75 percent.

3. (New section) a. There is established within the department a Toxic Packaging Task Force. The duties of the task force shall be to review the toxicity of packaging in the State, and to recommend to the department the designation of additional toxic substances which shall be subject to the same prohibitions as those substances listed in subsection c. of section 4 of P.L.1991, c.520 (C.13:1E-99.47).

b. The Toxic Packaging Task Force shall be composed of five members as follows:

(1) the Commissioner of Environmental Protection, or the commissioner's designee, who shall serve as chair;

(2) one representative of the packaging industry, appointed by the commissioner;

(3) one representative of environmental organizations, appointed by the commissioner; and

(4) two members of the public with significant professional or academic expertise in public health and toxicology, one of whom shall be appointed by the President of the Senate and one of whom shall be appointed by the Speaker of the General Assembly.

c. Appointments to the task force shall be for a term of five years. An appointed member shall not serve consecutive terms. Any vacancy in the public membership of the council shall be filled, within six months after the date on which the vacancy occurs, in the same manner provided for the initial appointments.

d. The task force shall meet at least four times per year, at the call of the chair, to review and recommend to the department whether there are additional toxic substances or classes of toxic substances that should be subject to the same prohibitions as those substances listed in subsection c. of section 4 of P.L.1991, c.520 (C.13:1E-99.47).

e. No later than one year after the Toxic Packaging Task Force recommends to the department an additional substance to restrict pursuant to subsection d. of this section, the department shall implement this recommendation by adopting rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

4. (New section) a. Whenever the Commissioner of Environmental Protection finds that a person has violated the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioner may:

(1) issue an order, in accordance with subsection c. of this section, requiring the violator to comply with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) or the rules or regulations adopted pursuant thereto;

(2) bring a civil action in accordance with subsection d. of this section;

(3) levy a civil administrative penalty in accordance with subsection e. of this section;

(4) bring an action for a civil penalty in accordance with subsection f. of this section; or

(5) notify the public of a producer that is not in compliance with the requirements of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. Pursuit of any of the remedies specified under subsection a. of this section shall not preclude the seeking of any other remedy specified.

c. Whenever the commissioner finds that a producer has violated the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioner may issue an administrative enforcement order to the person: specifying the provision or provisions that the person has violated; citing the action that constituted the violation; requiring the person’s compliance with the provision violated; and giving notice of the person's right to a hearing on the matters contained in the administrative enforcement order. The person subject to the order shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for a hearing shall not automatically stay the effect of the order.

d. The commissioner shall be authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), or of any rule or regulation adopted pursuant thereto. Such relief may include, singly or in combination:

(1) a temporary or permanent injunction;

(2) recovery of the reasonable costs of any investigation or inspection that led to the discovery of the violation, and for the recovery of the reasonable costs of preparing and bringing a civil action commenced under this subsection;

(3) recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from the violation for which a civil action has been commenced and brought under this subsection;

(4) recovery of compensatory damages caused by a violation for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the State Treasurer, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.

e. (1) The commissioner shall be authorized to assess a civil administrative penalty of not less than $5,000 nor more than $10,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense. In assessing a civil administrative penalty, the commissioner shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will act as an appropriate deterrent.

(2) Prior to the assessment of a civil administrative penalty under this subsection, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order that was violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order.

(3) The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate.

f. A producer who violates any provision of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), any rule or regulation adopted pursuant thereto, an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the commissioner. In addition to any penalties, costs, or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.

5. Section 4 of P.L.1991, c.520 (C.13:1E-99.47) is amended to read as follows:

4. a. On or after January 1, 1993, no person shall sell, offer for sale, or offer for promotional purposes in this State any package or packaging component which includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers or any other additives containing any lead, cadmium, mercury or hexavalent chromium which has been intentionally introduced as a chemical element during manufacturing or distribution as opposed to the incidental presence of any of these elements.

b. On or after January 1, 1993, no person shall sell, offer for sale, or offer for promotional purposes in this State any product contained in a package which includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers or any other additives containing any lead, cadmium, mercury or hexavalent chromium which has been intentionally introduced as a chemical element during manufacturing or distribution as opposed to the incidental presence of any of these elements.

c. The sum of the concentration levels of lead, cadmium, mercury or hexavalent chromium present in any package or packaging component, which shall constitute an incidental presence, shall not exceed the following levels:

(1) Not more than 600 parts per million by weight (0.06 [%] percent) after January 1, 1993;

(2) Not more than 250 parts per million by weight (0.025 [%] percent) after January 1, 1994;

(3) Not more than 100 parts per million by weight (0.01 [%] percent) after January 1, 1995.

As used in this section [, "incidental] :

"Incidental presence" means the presence [or a regulated metal] of a substance as an unintended or undesired ingredient of a package or packaging component.

[As used in this section, "intentionally] "Intentionally introduced" means the deliberate use of a [regulated heavy metal] substance to provide a desired characteristic, appearance, or quality. "Intentionally introduced" shall not include:

(1) Using [a regulated metal] lead, cadmium, mercury, or hexavalent chromium as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, whereupon the incidental retention of a residue of [a regulated metal] lead, cadmium, mercury, or hexavalent chromium in the final package or packaging component is neither desired nor deliberate, if the final package or packaging component is in compliance with [this act] the provisions of P.L.1991, c.520 (C.13:1E-99.44 et seq.) ; or

(2) Using recycled materials as feed stock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of the regulated [metals if] substance, provided that the new package or packaging component is in compliance with [this act] the provisions of P.L.1991, c.520 (C.13:1E-99.44 et seq.) .

d. Commencing two years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), no person shall sell, offer for sale, or offer for promotional purposes in this State any package or packaging component, or any product contained in a package, which includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers or any other additives containing any of the following substances, which has been intentionally introduced as a chemical element during manufacturing or distribution as opposed to the incidental presence of any of these elements:

(1) perfluoroalkyl and polyfluoroalkyl substances (PFAS);

(2) ortho-phthalates;

(3) bisphenols;

(4) halogenated and organophosphorus flame retardants (HFRS, OPFRS)

(5) non-detectable pigments including carbon black;

(6) oxo-degradable additives including oxo-biodegradable additives;

(7) UV-328, 2-(2h-benzotriazol-2-yl)-4, 6-di-tert-pentylphenol, or any other ultraviolet light absorbers including benzophenone and its derivatives;

(8) short-, medium-, and long-chained chlorinated paraffins;

(9) toxic metals other than lead, cadmium, mercury, and hexavalent chromium;

(10) antimony trioxide;

(11) formaldehyde;

(12) perchlorate;

(13) toluene; or

(14) vinyl chloride, including polyvinylidene chloride.

e. The department may, upon the recommendation of the Toxic Packaging Task Force established pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), designate additional substances to be prohibited from being included in packaging and packaging components by adopting rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.1997, c.307, s.2)

6. The Department of Environmental Protection shall, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations as necessary to implement this act.

7. This act shall take effect immediately.

STATEMENT

This bill would require the producers of plastic packaging and certain other plastic products sold in the State to reduce the amount, by weight, of their packaging or products sold annually. The bill would also restrict additional substances under the "Toxic Packaging Reduction Act," P.L.1991, c.520 (C.13:1E-99.44 et seq.).

Specifically, the source reduction component of the bill would apply to (1) plastic packaging, (2) single-use plastic products that are collected in the municipal solid waste stream, and (3) plastic products that have the effect of disrupting recycling processes, including, but not limited to, single-use plastic items such as straws, utensils, cups, plates, and plastic bags. The definition of "covered material" in section 1 of the bill would exclude various types of products, including those regulated under certain federal laws. Under the bill, producers of the products described above (including producers of products that are packaged in plastic packaging) would be required to decrease the amount of the packaging or products that are sold annually, by weight, such that, after two years, the quantity sold is 90 percent of the baseline amount, after four years, the quantity sold is 80 percent of the baseline amount, after six years, the quantity sold is 70 percent of the baseline amount, after eight years, the quantity sold is 60 percent of the baseline amount, and, after 10 years, the quantity sold is 50 percent of the baseline amount.

The bill would also prohibit the sale of cardboard packaging materials (including products sold in cardboard packaging materials) unless the cardboard contains at least 75 percent postconsumer recycled content and is recycled at a rate of at least 75 percent. Producers who violate these requirements would be liable to civil and civil administrative penalties of up to $10,000 per day of noncompliance.

The bill would also amend the "Toxic Packaging Reduction Act" to prohibit the sale of packaging (and products that are packaged in packaging) that contains certain substances, including toxic metals, per- and polyfluoroalkyl substances (PFAS), and vinyl chloride. Under current law, only packaging that contains lead, mercury, cadmium, or hexavalent chromium is restricted under the "Toxic Packaging Reduction Act." Persons who violate the provisions of the "Toxic Packaging Reduction Act" are liable to civil and civil administrative penalties of up to $7,500 per day of noncompliance, for a first offense.

Finally, the bill would also establish a Toxic Packaging Task Force, composed of the DEP commissioner or a designee and four members of the public, appointed by the DEP commission and the presiding officers of the Legislature. The task force would be charged with recommending additional chemicals to regulate under the "Toxic Packaging Reduction Act." Under the bill, the DEP would be required to adopt rules and regulations to regulate a chemical no later than one year after the task force's recommendation.