An Act concerning disposable and reusable carryout bags, 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 "Carryout Bag Reduction and Recycling Act."

2. a. The Legislature finds and declares that:

(1) The production of plastic and paper carryout bags in the United States has significant and detrimental environmental impacts each year, using over 12 million barrels of oil, cutting down over 14 million trees, and killing thousands of marine animals through ingestion and entanglement;

(2) Each year, an estimated 14 billion plastic carryout bags and 10 billion paper carryout bags are used in the United States alone, of which only one percent of the plastic carryout bags are returned for recycling;

(3) Most plastic carryout bags when biodegrading become toxic, contaminating soil and waterways, and plastic and paper carryout bags take up a large volume of the solid waste in landfills; and

(4) The plastic and paper carryout bags that are recycled must go through a lengthy and labor-intensive process of re-integration and renewal, using many chemicals, intense heat, and water.

b. The Legislature therefore determines that the State should:

(1) require stores to impose a fee for the use of disposable carryout bags so as to discourage their use;

(2) allow stores to provide a credit for each bag provided by the customer; and

(3) require disposable carryout bags to be recyclable plastic bags or recyclable paper bags.

3. As used in this act:

"Carryout bag" means a bag provided by a store at the point of sale for customers to carry their goods out of the store, but shall not include (1) a bag used inside a store to package bulk items, unwrapped prepared food or bakery items, prescription drugs, frozen food, meat or fish, or flowers, (2) a paper carryout bag provided to a customer to carry out food from a restaurant with seating, or (3) a plastic bag used to package newspapers or dry-cleaning.

"Department" means the Department of Environmental Protection.

"Disposable carryout bag" means a carryout bag that is made of any material and that is not a reusable bag.

"Operator" means a person in control of, or having daily responsibility for, the daily operation of a store, which may include, but is not limited to, the owner of the store.

"Recyclable paper bag" means a paper carryout bag that meets all of the following requirements: (1) the bag contains no old growth fiber; (2) the bag is 100% recyclable and contains a minimum of 40% post-consumer recycled content; and (3) the bag displays the words "Please Recycle This Bag" in a highly visible manner.

"Recyclable plastic bag" means a plastic carryout bag that meets all of the following requirements: (1) the bag is made of high-density polyethylene film marked with the SPI resin code 2, or low-density polyethylene film marked with the SPI resin code 4; and (2) the bag displays the words "Please Recycle This Bag" in a highly visible manner.

"Reusable bag" means (1) a bag made of cloth or other machine washable fabric that has handles, or (2) a durable plastic bag with handles that is at least 2.25 mils thick and is specifically designed and manufactured for multiple reuse.

"Store" means a convenience store, bakery, drugstore, supermarket, liquor store, restaurant, delicatessen, or retail establishment that provides carryout bags to its customers as a result of the sale of a product, but shall not include a farm market as defined pursuant to section 3 of P.L.1983, c.31 (C.4:1C-3).

4. a. Beginning January 1, 2014, every operator shall impose a $0.05 fee on every disposable carryout bag that is provided to a customer.

b. Except as provided in subsection c. of this section, the operator shall retain $.01 of the fee charged pursuant to this section, and shall remit the remaining $.04 to the Department of Environmental Protection.

c. An operator may establish a voluntary carryout bag credit program pursuant to section 5 of this act. Any operator that establishes a voluntary carryout bag credit program may retain $.02 of the fee charged pursuant to this section, and shall remit the remaining $.03 to the Department of Environmental Protection.

d. The operator shall indicate the total number of disposable carryout bags provided, and the total fee charged pursuant to subsection a. of this section, on the sales or other receipt given to the customer.

5. a. Any operator may establish a voluntary carryout bag credit program pursuant to this section. Under the program, the operator shall:

(1) provide a credit to the customer of $.05 for each carryout bag provided by the customer for use in the transaction, regardless of whether the bag is plastic or paper or is a reusable bag;

(2) provide the total number of credits for the number of carryout bags that are reasonably required to carry the purchased goods;

(3) prominently advertise its participation in, and the substance of, the carryout bag credit program at each of its checkout registers;

and

(4) indicate the total amount credited pursuant to this section on the sales or other receipt of the customer who provides the carryout bags.

b. An operator that establishes a voluntary carryout bag credit program shall not be required to provide a $.05 credit for that portion of a customer's purchase for which the customer declines the use of a carryout bag.

c. Any operator that establishes a voluntary carryout bag credit program shall register with the Department of Environmental Protection on a form prescribed by the department.

6. Beginning on January 1, 2015, an operator shall not provide a disposable carryout bag unless the disposable carryout bag is a recyclable plastic bag or recyclable paper bag.

7. a. Beginning April 1, 2014, and quarterly thereafter, every operator shall submit a report, in writing, to the department and shall remit the dollar equivalent of the amount collected from customers as disposable carryout bag fees pursuant to section 4 of this act, less the amount authorized to be retained by the operator. The report shall document the total fees collected from the distribution of disposable carryout bags, the total amount retained by the operator, and the total amount credited to customers who provide carryout bags under a voluntary carryout bag credit program established pursuant to section 5 of this act.

b. The revenues from the fees on disposable carryout bags shall be deposited by the department in the Barnegat Bay Restoration Fund established pursuant to section 8 of this act and shall be used for the purposes of the fund.

8. a. There is established in the Department of Environmental Protection a special, nonlapsing fund to be known as the "Barnegat Bay Restoration Fund." The fund shall be administered by the Commissioner of Environmental Protection and shall be credited with:

(1) moneys received from operators from fees charged for the provision of disposable carryout bags pursuant to section 4 of this act;

(2) such moneys as are appropriated by the Legislature; and

(3) any return on investment of moneys deposited in the fund.

b. Moneys in the fund shall be annually appropriated and used for programs to improve the water quality of the Barnegat Bay.

9. The department shall be responsible for the implementation and enforcement of this act. The department shall maintain all submitted reports in order to track progress in reducing the volume of disposable carryout bags.

10. a. Whenever the Commissioner of Environmental Protection finds that a person has violated any provision of this act, or any rule or regulation adopted pursuant to this act, the commissioner may:

(1) Issue an order in accordance with subsection b. of this section requiring any such person to comply with the provision; or

(2) Bring a civil action in accordance with subsection c. of this section; or

(3) Levy a civil administrative penalty in accordance with subsection d. of this section; or

(4) Bring an action for a civil penalty in accordance with subsection e. of this section.

Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies prescribed in this section or by any other applicable law.

b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of the law, rule, or regulation of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; and (4) providing notice to the person of the right to a hearing on the matters contained in the order.

c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation this act, or any rule or regulation adopted pursuant thereto. Such relief may include, singly or in combination:

(1) A temporary or permanent injunction; and

(2) Assessment of the violator for the costs of any investigation or inspection, and for the reasonable costs of preparing and bringing legal action under this subsection.

d. The commissioner is authorized to assess a civil administrative penalty of up to $100 for the first violation, up to $200 for the second violation, and up to $500 for the third and each subsequent violation. No civil administrative penalty shall be levied pursuant to this section until after the party has been notified by certified mail or personal service. The notice shall: (1) identify the section of the law, rule, or regulation that has been violated; (2) recite the facts alleged to constitute the violation; (3) state the amount of the civil administrative penalties to be imposed; and (4) affirm the rights of the alleged violator to a hearing. The ordered party shall have 20 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 penalty specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative penalty is in addition to all other enforcement provisions in this act and in any other applicable law, rule, or regulation, and the payment of any penalty shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. Any civil administrative penalty assessed under this section may be compromised by the commissioner upon such terms and conditions as the commissioner may establish by rules or regulation.

e. A person who violates any provision of this act, or 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, shall be subject, upon order of a court, to a civil penalty not to exceed $500 for the violation. 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.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.

11. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), such rules and regulations as are necessary to effectuate the purposes of this act.

12. This act shall take effect immediately.

STATEMENT

This bill would be known as the "Carryout Bag Reduction and Recycling Act" and would (1) require stores to impose a $.05 fee per bag for the use of disposable carryout bags, (2) allow stores to provide a $.05 credit for each bag provided by a customer, and (3) require disposable carryout bags provided by stores to be recyclable by January 1, 2015.

The bill would require the operator of any store to impose a $.05 fee on every disposable carryout bag provided to a customer. The operator would retain $.01 and remit the remaining $.04 to the Department of Environmental Protection. The operator of a store may also establish a voluntary carryout bag credit program, where a customer would be provided a credit of $.05 for each carryout bag the customer provides. Should an operator establish a voluntary carryout bag credit program, the operator would be authorized to retain $.02 of every $.05 imposed for providing a disposable carryout bag to a customer.

Under the bill, the provisions would apply to the operator of a convenience store, bakery, drugstore, supermarket, liquor store, restaurant, delicatessen or retail establishment that provides carryout bags to its customers but would not apply to a farm market as defined pursuant to section 3 of P.L.1981, c.31 (C.4:1C-3). The bill would not apply to (1) bags used inside of a store to package bulk items, unwrapped prepared food or bakery items, prescription drugs, frozen food, meat or fish, or flowers, (2) paper carryout bags provided to a customer to carry out food from a restaurant with seating, or (3) plastic bags used to package newspapers or dry-cleaning.

Beginning in 2015, the operator of any store would be prohibited from providing a disposable carryout bag unless the carryout bag is recyclable.

The revenue from the fees remitted to the department would be deposited in the Barnegat Bay Restoration Fund established in the bill, and would be used for programs to improve the water quality of the Barnegat Bay.

The bill would require a store operator to submit a quarterly report to the Department of Environmental Protection together with the remittance of the dollar equivalent of the amount collected from customers as disposable carryout bag fees, less the amount authorized to be retained by the operator. The report would also be required to document the total fees collected from the distribution of disposable carryout bags, the total amount retained by the operator, and the total amount credited to customers who provide carryout bags under a voluntary carryout bag credit program as described in the bill.

Finally, the bill would authorize the imposition of civil administrative penalties for violations of $100 for the first violation, $200 for the second violation, and $500 for the third and subsequent violations. The bill would also authorize the Commissioner of Environmental Protection to issue an order to require compliance with the act, to bring a civil action, and to bring an action for a civil penalty, for a violation of the act.