An Act concerning the recycling of rigid plastic containers, and supplementing Title 13 of the Revised Statutes.

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

1. This act shall be known and may be cited as the "Plastic Container Recycling Enhancement Act."

2. The Legislature finds and declares that rigid plastic containers represent a significant component of the solid waste stream in New Jersey; and that the removal of rigid plastic containers from the solid waste stream and the recycling of this material will decrease the flow of solid waste to the State's landfills, transfer stations and incineration facilities, aid in the conservation and recovery of valuable resources, preserve natural resources and create new markets for the recyclable materials separated by the residents and businesses of this State, thus producing new jobs and related business opportunities.

The Legislature further finds and declares that rigid plastic containers, typically made from HDPE or PET resin, make up a substantial portion of the rigid plastic container stream; that any effort to reduce the flow of HDPE and PET containers to in-State solid waste disposal facilities must necessarily include requirements to achieve certain recycled content goals; and that these goals should be increased over time in an orderly manner.

The Legislature, therefore, declares it to be in the environmental and economic interests of the State of New Jersey to set minimum recycled content standards and to encourage the recycling of rigid plastic containers.

3. For the purposes of this act:

"Beverage" means milk, and nonalcoholic beverages, including fruit juice, spring water, mineral water, soda water and similar carbonated and noncarbonated soft drinks intended for human consumption.

"Container manufacturer" means the producer or generator of a rigid plastic container for a packaged product.

"Council" means the Plastic Container Recycling Council established pursuant to section 10 of this act.

"Department" means the Department of Environmental Protection.

"Personal care product" means hair care or skin care products which are typically available for retail sale without a medical prescription.

"Product manufacturer" means the producer or generator of a product that is stored inside of a rigid plastic container.

"Recycled" means a product or material that has been re-used in the production of another product and that would otherwise become solid waste.

"Recycled content" means the portion of a container's weight that is composed of recycled material as determined by a material balance approach that calculates total recycled material input as a percentage of total material input in the manufacture of the container.

"Rigid plastic container" means any container composed primarily of thermoplastic synthetic polymeric material, which has a relatively finite shape or form with a minimum capacity of eight ounces, or its equivalent volume, and a maximum capacity of six and one-half United States gallons, or its equivalent volume, and which is capable of maintaining its shape while holding, protecting, storing, containing, transporting, displaying or selling a product.

"Small business enterprise" means any business which has its principal place of business in this State, is independently owned and operated, and employs the equivalent of fewer than 50 full-time employees.

4. a. Every rigid plastic container manufactured, sold or offered for sale in this State by a container manufacturer, or designed and used to store a packaged product that is sold or offered for sale in this State by a product manufacturer, shall have at least 25% recycled content by January 1, 2011.

b. The following rigid plastic containers are exempt from the recycled content requirement of this section:

(1) Any rigid plastic container manufactured by a small business enterprise which manufactures rigid plastic containers with a maximum capacity of two United States gallons, or its equivalent volume, or less;

(2) Any rigid plastic container manufactured, sold or offered for sale in this State by a personal care product container manufacturer, or designed and used to store a personal care product that is sold or offered for sale in this State by a product manufacturer;

(3) Any rigid plastic container manufactured, sold or offered for sale in this State by a beverage container manufacturer, or designed and used to store a beverage intended for human consumption that is sold or offered for sale in this State by a product manufacturer;

(4) Rigid plastic containers produced in this State or out-of-state which are destined for shipment to other destinations outside the State and which remain with the products upon that shipment;

(5) Rigid plastic containers which contain toxic or hazardous products regulated by the "Federal Insecticide, Fungicide, and Rodenticide Act," 7 U.S.C. s.136 et seq.;

(6) Rigid plastic containers which contain drugs, medical devices, cosmetics, food, medical food, or infant formula as defined by the "Federal Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq.; and

(7) Rigid plastic containers which are manufactured for use in the shipment of hazardous materials and are prohibited from being manufactured with used material by federal material specifications set forth in Sections 178.509 and 178.522 of Title 49 of the Code of Federal Regulations, or are subject to testing standards set forth in Sections 178.600 to 178.609, inclusive, of Title 49 of the Code of Federal Regulations, or to which recommendations of the United Nations on the transport of dangerous goods are applicable.

5. a. The department may grant a waiver from the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) to any container manufacturer or product manufacturer, or both, as appropriate, if the department finds, in writing, that:

(1) It is technologically infeasible to use rigid plastic containers that achieve the recycled content requirement; or

(2) The rigid plastic containers cannot meet the recycled content requirement and remain in compliance with applicable provisions of regulations adopted by the Food and Drug Administration or other State or federal laws or regulations.

b. The department shall grant a waiver from the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) to any container manufacturer or product manufacturer, or both, as appropriate, if the department finds, in writing, that at least 50%, by number, of a manufacturer's rigid plastic containers sold or offered for sale in the State during calendar year 2011 will achieve the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) and all of the manufacturer's rigid plastic containers will comply with the requirement on or before January 1, 2012.

c. The department shall grant a temporary waiver, not to exceed one year, from the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) for products packaged in rigid plastic containers that are introduced and sold in this State after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

6. a. The department shall grant an exemption from the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) to any container manufacturer or product manufacturer, or both, as appropriate, if the department finds, in writing, that a particular rigid plastic container with a maximum capacity of one United States gallon, or its equivalent volume, which is manufactured, sold or offered for sale in this State by a container manufacturer, or designed and used to store a packaged product that is sold or offered for sale in this State by a product manufacturer, meets one of the following criteria:

(1) The rigid plastic container is a reusable container;

(2) The rigid plastic container is a refillable container; or

(3) The rigid plastic container is a source reduced container.

b. As used in this section:

"Refillable container" means a rigid plastic container that the department determines is routinely returned to and refilled by the product manufacturer at least five times with the original product packaged by the container;

"Reusable container" means a rigid plastic container that the department determines is routinely reused by consumers at least five times to store the original product packaged by the container;

"Source reduced container" means: (1) a rigid plastic container for which the product manufacturer seeks compliance as of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), whose package weight per unit or use of product has been reduced by 10% when compared with the packaging used for that product by the product manufacturer during the previous five calendar years; or (2) a rigid plastic container for which the product manufacturer seeks compliance as of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), whose package weight per unit or use of product has been reduced by 10% when compared with one of the following: (a) the packaging used for the product by the product manufacturer on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill); (b) the packaging used for that product by the product manufacturer over the course of the first full year of commerce in this State; or (c) the packaging used in commerce that same year for similar products whose containers have not been considered source reduced.

A rigid plastic container is not a source reduced container if the packaging reduction was achieved by any of the following: a different material type is substituted for a material that previously constituted the principal material of the container; the container's weight per unit or use of product was increased prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill); or packaging changes that adversely affect the potential for the rigid plastic container to be recycled or to be manufactured utilizing recycled material.

7. a. On or before February 1, 2011, each container manufacturer and product manufacturer shall submit to the department a completed written certification verifying that the rigid plastic containers manufactured, sold, or offered for sale in this State by the container manufacturer, or the rigid plastic containers used by the product manufacturer for its products that are sold or offered for sale in this State, as appropriate, are: (1) in compliance with the recycled content requirement of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill); (2) exempt pursuant to subsection b. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill); (3) eligible for a waiver pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill); or (4) eligible for an exemption pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The department shall, as part of its rulemaking, develop the required certification forms. The certifications shall be submitted under penalty of perjury, under the laws of the State of New Jersey. Each container manufacturer and product manufacturer shall issue a certification to the department on an annual basis. The annual certification shall be submitted to the department on February 1 of each consecutive year.

8. a. On or before January 1, 2011, the department shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations as are necessary to implement the provisions of this act.

b. The department may, in accordance with a fee schedule adopted as a rule or regulation pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), establish and charge reasonable fees for any of the services to be performed in connection with this act, which shall cover the full costs incurred by the department for the review of certification forms and for other costs incurred by the department for implementation of this act.

9. If any container manufacturer or product manufacturer violates any of the provisions of this act, or any rule, regulation or order adopted or issued pursuant thereto, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief, to prohibit and prevent this violation.

Any container manufacturer or product manufacturer who violates the provisions of this act, or any rule, regulation or order adopted pursuant thereto, is liable to a civil administrative penalty of not more than $10,000 for the first offense, not more than $20,000 for the second offense and not more than $50,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which it continues constitutes an additional, separate and distinct offense. No civil administrative penalty shall be levied except subsequent to the written notification to the violator by certified mail or parcel service. The notice shall include a reference to the section of this act, rule or regulation violated; a concise statement of the facts alleged to constitute the violation; a statement of the amount of civil penalties to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of the notice within which to deliver to the department a written request for a hearing. Subsequent to the hearing and upon a finding that violation has occurred, the department may issue a final order assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order upon the expiration of the 20 day period. Payment of the penalty is due when the final order is issued or when a notice becomes a final order. The authority to levy a civil administrative penalty, in addition to all other enforcement provisions in this act, and the payment of a civil administrative penalty, shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.

The department is authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.

Pursuant to this section, if the department determines that a container manufacturer or product manufacturer has submitted a certification as required pursuant to the provisions of 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) that is false or misleading, the department shall refer that entity to the Attorney General for the prosecution of fraud.

10. a. There is established a Plastic Container Recycling Council. The council shall consist of nine members appointed by the Governor with the advice and consent of the Senate. Each of these members shall be appointed for a term of two years. Of these members, one shall be a representative of rigid plastic container manufacturers, one shall be a representative of personal care product manufacturers, one shall be a representative of beverage container manufacturers, two shall be members of recognized Statewide environmental organizations, one shall be a representative of plastic container recyclers, one shall be a representative of county recycling coordinators, one shall be a representative of rigid plastic container manufacturers located in the State, and one shall be a representative of rigid plastic container manufacturers that is a small business enterprise.

b. A majority of the membership of the council shall constitute a quorum for the transaction of council business. Action may be taken and motions and resolutions adopted by the council at any meeting thereof by the affirmative vote of a majority of the full membership of the council. The council shall meet regularly as it may determine.

The council shall appoint a chairperson from among its members and such other officers as may be necessary. The council may, within the limits of any funds appropriated or otherwise made available to it for this purpose, appoint such staff or hire such experts as it may require. Members of the council shall serve without compensation, but the council may, within the limits of funds appropriated or otherwise made available for such purposes, reimburse its members for necessary expenses incurred in the discharge of their official duties.

c. It shall be the duty of the council to study the technological feasibility of increasing the recycled content of rigid plastic containers and expanding the types of containers that may be manufactured from recycled material; investigate the ways and means to enhance the development and expansion of markets for post-consumer recycled plastic, including State and local purchasing and procurement practices; study the costs and practicality of new recycled content technologies, including successful approaches to recycled plastic materials development employed by other states; and study improved processes designed to address the concerns raised by those container manufacturers and product manufacturers committed to packaging materials made from one hundred percent virgin plastic.

The council shall recommend appropriate actions to promote, educate and inform the public on the issues and benefits of recycling rigid plastic containers and purchasing products packaged in plastic containers made from recycled content.

d. The council shall issue a final report of its findings and recommendations to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature no later than two years after its organizational meeting.

11. This act shall take effect immediately.

STATEMENT

This bill requires every rigid plastic container manufactured, sold or offered for sale in this State to be composed of at least 25% recycled content by January 1, 2011.

The recycled content requirement would not apply to any small business enterprise which manufactures rigid plastic containers with a maximum capacity of two United States gallons, or its equivalent volume, or less. A "small business enterprise" means any business which has its principal place of business in this State, is independently owned and operated, and employs the equivalent of fewer than 50 full-time employees.

The following rigid plastic containers would also be exempt from the recycled content requirement:

(1) Any rigid plastic container manufactured, sold or offered for sale in this State by a personal care product container manufacturer, or designed and used to store a personal care product that is sold or offered for sale in this State by a product manufacturer;

(2) Any rigid plastic container manufactured, sold or offered for sale in this State by a beverage container manufacturer, or designed and used to store a beverage intended for human consumption that is sold or offered for sale in this State by a product manufacturer;

(3) Rigid plastic containers produced in this State or out-of-state which are destined for shipment to other destinations outside the State and which remain with the products upon that shipment;

(4) Rigid plastic containers which contain toxic or hazardous products regulated by the "Federal Insecticide, Fungicide, and Rodenticide Act";

(5) Rigid plastic containers which contain drugs, medical devices, cosmetics, food, medical food, or infant formula as defined by the "Federal Food, Drug, and Cosmetic Act"; and

(6) Rigid plastic containers which are manufactured for use in the shipment of hazardous materials and are prohibited from being manufactured with used material by federal material specifications set forth in Sections 178.509 and 178.522 of Title 49 of the Code of Federal Regulations, or are subject to testing standards set forth in Sections 178.600 to 178.609, inclusive, of Title 49 of the Code of Federal Regulations, or to which recommendations of the United Nations on the transport of dangerous goods are applicable.

The Department of Environmental Protection (DEP) may grant a waiver from the recycled content requirement to any container manufacturer or product manufacturer, or both, as appropriate, if the DEP finds, in writing, one or more of the following:

(1) It is technologically infeasible to use rigid plastic containers that achieve the applicable recycled content requirement; or

(2) The rigid plastic containers cannot meet the recycled content plastic requirement and remain in compliance with applicable provisions of regulations adopted by the Food and Drug Administration or other State or federal laws or regulations.

The DEP is required to grant a waiver from the recycled content requirement to any container manufacturer or product manufacturer, or both, as appropriate, if the DEP makes a written finding that at least 50%, by number, of a manufacturer's rigid plastic containers sold or offered for sale in the State in the current calendar year achieve the recycled content requirement and all of the manufacturer's rigid plastic containers will comply with these requirements on or before January 1, 2012.

The DEP is required to grant a temporary waiver, not to exceed one year, from the recycled content requirement for products packaged in rigid plastic containers that are introduced and sold in this State after the effective date of the bill.

The DEP is required to grant an exemption from the recycled content requirement to any container manufacturer or product manufacturer, or both, as appropriate, if the DEP finds, in writing, that a particular rigid plastic container with a maximum capacity of one United States gallon, or its equivalent volume, which is manufactured, sold or offered for sale in this State by a container manufacturer, or designed and used to store a packaged product that is sold or offered for sale in this State by a product manufacturer, meets one of the following criteria:

(1) The rigid plastic container is a reusable container;

(2) The rigid plastic container is a refillable container; or

(3) The rigid plastic container is source reduced by 10%.

On or before February 1, 2011, each container manufacturer and product manufacturer must submit to the DEP a completed written certification verifying that the rigid plastic containers manufactured, sold, or offered for sale in this State by the container manufacturer, or the rigid plastic containers used by the product manufacturer for its products that are sold or offered for sale in this State are: (1) in compliance with the recycled content requirement; (2) exempt from the requirement pursuant to one or more of the criteria specified in the bill; (3) eligible for a waiver; or (4) eligible for an exemption as a refillable, reusable or source reduced container.

The DEP is required, as part of its rulemaking, to develop the required certification forms. The certifications must be submitted under penalty of perjury. Each container manufacturer and product manufacturer would issue a certification to the DEP on an annual basis. The annual certification must be submitted to the DEP on February 1 of each consecutive year.

The DEP may, in accordance with a fee schedule adopted as a rule or regulation pursuant to the provisions of the "Administrative Procedure Act," establish and charge reasonable fees for any of the services to be performed in connection with the bill, which are intended to cover the full costs incurred by the DEP for the review of certification forms and for other costs incurred in implementing the act.

The bill establishes a Plastic Container Recycling Council. The council would: study the technological feasibility of increasing the recycled content of rigid plastic containers and expanding the types of containers that may be manufactured from recycled material; investigate the ways and means to enhance the development and expansion of markets for post-consumer recycled plastic, including State and local purchasing and procurement practices; study the costs and practicality of new recycled content technologies, including successful approaches to recycled plastic materials development employed by other states; and study improved processes designed to address the concerns raised by those container manufacturers and product manufacturers committed to packaging materials made from one hundred percent virgin plastic.

The council would recommend appropriate actions to promote, educate and inform the public on the issues and benefits of recycling rigid plastic containers and purchasing products packaged in plastic containers made from recycled content. The council must issue a final report of its findings and recommendations to the Governor and the Legislature no later than two years after its organizational meeting.