Colo. Rev. Stat. § 25-17-703, Definitions

As used in this part 7, unless the context otherwise requires:

(1) Additional producer responsibility organization means a nonprofit organization designated by the department as an additional producer responsibility organization pursuant to section 25-17-708 (2)(b).

(2) Advisory board means the producer responsibility program for statewide recycling advisory board created in section 25-17-704 (1).

(3) Amended plan proposal means an amended plan proposal for the implementation of the program submitted to the advisory board after the advisory board's initial review of the plan proposal in accordance with section 25-17-705 (5).

(4) Collection means the gathering and transportation of covered materials from covered entities for the purpose of recycling.

(5) Collection rate means the weight of covered materials that are collected under the program in a calendar year divided by the weight of covered materials used for products sold or distributed by producers within or into the state in the same calendar year, expressed as a percentage.

(6) Commission means the solid and hazardous waste commission created under section 25-15-302 (1)(a).

(7) Compost means the material or product that is developed under controlled conditions and that results from biological degradation processes by which organic wastes decompose.

(8) (a) Compost facility means a site where compost is produced.

(b) Compost facility includes only those compost facilities that readily accept and process packaging material collected from consumers.

(9) Compostable means a covered material associated with organic waste streams that is capable of undergoing aerobic biological decomposition in a controlled composting system as demonstrated by meeting ASTM D6400 or ASTM D6868, or any successor standards.

(10) Consumer means any person who purchases or receives covered materials in the state and is located at a covered entity.

(11) Convenience standards means the standards for the program as described in section 25-17-706 (3).

(12) Covered entity means the following locations in the state from which covered materials are collected:

(a) All single-family or multifamily residences in the state; and

(b) Nonresidential locations identified in the final plan, including public places; small businesses; schools, as defined in section 22-1-132 (2)(c); hospitality locations; and state and local government buildings.

(13) (a) Covered materials includes:

(I) Packaging material, except as specified in subsection (13)(b) of this section; and

(II) Paper products, except as specified in subsection (13)(b) of this section.

(b) Covered materials does not include:

(I) Packaging materials intended to be used for the long-term storage or protection of a durable product and that are intended to transport, protect, or store the product for at least five years;

(II) Paper products that, through their use, could become unsafe or unsanitary to handle;

(III) Printed paper used to distribute financial statements, billing statements, medical documents, or other vital documents required to be provided in paper form by applicable consumer protections laws or other state or federal laws;

(IV) Bound books;

(V) Beverage containers subject to a returnable container deposit, if applicable;

(VI) Packaging material used exclusively in industrial or manufacturing processes;

(VII) Packaging material used to contain a product that is regulated as a drug, medical device, or dietary supplement by the federal food and drug administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec. 301 et seq., as amended, or any federal regulation promulgated under the act, or any equipment and materials used to manufacture such products;

(VIII) Packaging material used to contain a product that is regulated as animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin under the federal Virus-Serum-Toxin Act, 21 U.S.C. sec. 151 et seq., as amended;

(IX) Packaging material used to contain a product that is regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. sec. 136 et seq., as amended;

(X) Packaging material used to contain architectural paint covered under a paint stewardship program in accordance with part 4 of this article 17;

(XI) Packaging material used to contain a product that is required under state law to be sold in packaging material that meets the standards set forth in the Poison Prevention Packaging Act of 1970, 15 U.S.C. sec. 1471 et seq., as amended;

(XII) Packaging material used to contain a portable electronic device, as defined in section 10-4-1501, that has been repaired and reconditioned to be sold as a refurbished product;

(XIII) Paper products used for a print publication that primarily includes content derived from primary sources related to news and current events;

(XIV) Packaging material used to contain a product that is regulated as infant formula, as defined in 21 U.S.C. sec. 321 (z), as a medical food, as defined in 21 U.S.C. sec. 360ee (b)(3), or as fortified nutritional supplements used for individuals who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined by the World Health Organization's International Classification of Diseases (tenth revision), as amended or revised, or any other medical conditions as determined by the commission by rule; and

(XV) Any other material that, based on an analysis by the organization of the operational and financial impacts of the proposed changes and after consultation with the advisory board, the commission determines by rule to not be a covered material.

(14) Department means the department of public health and environment created in section 24-1-119.

(15) Environmentally sound management practices means policies that ensure compliance with all applicable environmental laws, including laws addressing:

(a) Record keeping;

(b) Tracking and documenting the disposition of covered materials collected from covered entities; and

(16) Executive director means the executive director of the department or the executive director's designee.

(17) Final plan means the plan proposal or amended plan proposal that has been designated as the final plan by the executive director pursuant to section 25-17-705 (5)(c)(I).

(18) Front range means the counties of Adams, Arapahoe, Boulder, Douglas, Elbert, El Paso, Jefferson, Larimer, Pueblo, Teller, and Weld and the cities and counties of Broomfield and Denver.

(19) Local government means a home rule or statutory county, municipality, or city and county.

(20) Materials recovery facility means a facility for processing covered materials that are collected for recycling before they are conveyed to end-market businesses.

(21) Mechanical recycling means a form of recycling that does not change the basic molecular structure of the material being recycled.

(22) Minimum recyclable list means the list of covered materials developed under section 25-17-706 (1)(a).

(23) Needs assessment means the assessment of the state's recycling needs conducted pursuant to section 25-17-705 (3).

(24) Nonprofit organization means a tax-exempt charitable or social welfare organization operating under 26 U.S.C. sec. 501 (c)(3) or 501 (c)(4) of the federal Internal Revenue Code of 1986, as amended.

(25) (a) (I) Packaging material means any material, regardless of recyclability, that is intended for single or short-term use and is used for the containment, protection, handling, or delivery of products to the consumer at the point of sale, including through an internet transaction.

(II) Packaging material includes products supplied to or purchased by consumers for the express purpose of facilitating food or beverage consumption and that are:

(A) Ordinarily disposed of after a single or short-term use; and

(B) Not designed for reuse or refill.

(III) Packaging material includes paper, plastic, glass, metal, cartons, flexible foam, rigid packaging, or other materials or combination of these materials.

(b) Packaging material does not include:

(I) Packaging materials used solely in transportation or distribution to nonconsumers;

(II) Packaging materials used solely in business-to-business transactions where a covered material is not intended to be distributed to the end consumer;

(III) Packaging materials that are not sold or distributed to covered entities; or

(IV) Packaging materials that are used for products sold or distributed outside the state.

(26) Paper products means paper and other cellulosic fibers, whether or not they are used as a medium for text or images, including:

(a) Flyers;

(b) Brochures;

(d) Catalogs;

(e) Telephone directories;

(f) Newspapers;

(g) Magazines; and

(h) Paper used for writing or any other purpose.

(27) Plan proposal means the plan proposal for the implementation of the program submitted to the advisory board in accordance with section 25-17-705 (4).

(28) Postconsumer-recycled-content rate means the amount of postconsumer recycled materials used in the production of covered materials in a calendar year divided by the amount of covered materials used for products sold or distributed by producers within or into their United States market territory in the same calendar year, expressed as a percentage.

(29) (a) Postconsumer recycled material means only those covered materials that have served their intended end use as consumer items and that have been separated or diverted from the waste stream for the purposes of collection and recycling as a secondary material feedstock.

(b) Postconsumer recycled material includes returns of material from the distribution chain.

(c) Postconsumer recycled material does not include waste material generated during or after the completion of a manufacturing process.

(30) Producer means:

(a) (I) If the product is sold or distributed in the state using packaging materials under the manufacturer's own brand or is sold or distributed in the state using packaging materials that lack identification of a brand, the person that manufactures the product;

(II) If the product is manufactured by a person other than the brand owner, the person that is the licensee of a brand or trademark under which a packaged item is sold or distributed in the state, whether or not the trademark is registered in the state; or

(III) If there is no person described in subsection (30)(a)(I) or (30)(a)(II) of this section within the United States, the person that imports the product using covered materials into the United States for use in a commercial enterprise that sells or distributes the item in the state;

(b) For the purposes of products that are sold or distributed in the state through an internet transaction:

(I) The producer of the packaging material used to directly protect or contain the product; and

(II) For the purposes of packaging material used to ship a product to a consumer, the person that packages or ships the product to the consumer;

(c) For the purposes of a paper product that is a magazine, newspaper, catalog, telephone directory, or similar publication, the publisher of the paper product;

(d) For the purposes of paper products not described in subsection (30)(c) of this section:

(I) The person that manufactures the paper product under the manufacturer's own brand; or

(II) If the paper product is manufactured by a person other than the brand owner, the person that is the owner or licensee of the brand or trademark under which the paper product is used in a commercial enterprise, sold, or distributed in or into the state, whether or not the trademark is registered in the state; or

(e) For any other covered material, the person that first distributes the covered material in or into the state.

(31) Producer responsibility dues means the amounts established in section 25-17-705 (4)(i)(II) that a producer participating in the program pays annually into the program pursuant to section 25-17-709 (1).

(32) Producer responsibility organization or organization means the nonprofit organization designated to implement the program pursuant to section 25-17-705 (1)(b)(II).

(33) Producer responsibility program for statewide recycling or program means the producer responsibility program for statewide recycling created in accordance with section 25-17-705.

(34) Proprietary information means information that, if made public:

(a) Would divulge competitive business information or trade secrets of the entity that developed the information; or

(b) Would reasonably hinder the entity's competitive advantage in the market.

(35) (a) Public place means an indoor or outdoor location in the state that is open to and generally used by the public.

(b) Public place includes streets; sidewalks; plazas; town squares; state-owned or local-government-owned parks, beaches, and forests; other state-owned or local-government-owned land open for recreation or other public uses; and transportation facilities, including bus and train stations and airports.

(36) Readily recyclable material means a covered material that is included on the minimum recyclable list.

(37) (a) Recycling means the reprocessing, by means of a manufacturing process, of a used material into a product or a secondary raw material.

(b) Recycling does not include:

(I) Energy recovery or energy generation by means of combustion;

(II) Use as a fuel;

(III) Use as alternative daily cover as defined in section 30-20-1402 (1); or

(IV) Landfill disposal of discarded covered materials.

(38) (a) Recycling rate means the weight of covered materials that are recycled under the program in a calendar year divided by the weight of covered materials used for products sold or distributed by producers within or into the state in the same calendar year, expressed as a percentage.

(b) The recycling rate is measured at the point where collected covered materials have been prepared for sale or delivery to material reclaimers or end markets after processing at a materials recovery facility or similar establishment that sells directly to reclaimers or end markets.

(39) (a) Recycling services means services provided for the recycling of covered materials, including the collection, transportation, and processing of covered materials from the consumer to the end market.

(b) Recycling services includes curbside services and drop-off centers.

(40) Recycling services costs means the costs of recycling programs to provide recycling services, including applicable costs related to:

(a) The administration of recycling programs;

(b) Capital improvements to recycling programs;

(d) Public education about recycling programs; and

(e) Disposal of nonrecyclable collected covered materials.

(41) Responsible end market means a materials market in which the recycling of materials or the disposal of contaminants is conducted in a way that:

(a) Benefits the environment; and

(b) Minimizes risks to public health and worker health and safety.

(42) Retailer means a person that sells to consumers within or into the state, including sales made through an internet transaction, products for which covered materials are used.

(43) Reuse or refill means the return into the marketplace of a covered material that:

(a) Has already been used in the same manner as originally intended without a change in the covered material's purpose; and

(b) Was intended to be used for its original purpose at least five times.

(44) Service provider means a public or private entity, other than the producer responsibility organization, that provides recycling services in the state.

Source: L. 2022: Entire part added, (HB 22-1355), ch. 337, p. 2391, � 1, effective August 10. L. 2024: (20) amended, (HB 24-1449), ch. 192, p. 1130, � 7, effective July 1.

25-17-704. Producer responsibility program for statewide recycling advisory board - creation - membership. (1) The producer responsibility program for statewide recycling advisory board is hereby created in the department. The department may select an impartial, third-party facilitator to convene and provide administrative support to the advisory board.

(2) (a) The advisory board consists of the following thirteen voting members and two nonvoting members appointed by the executive director:

(I) Three voting members representing local governments in the state, including:

(A) One member representing a municipality or city and county;

(B) One member representing a county; and

(II) One voting member representing a materials recovery facility;

(III) One voting member representing a hauler of recyclable materials, whether representing the public or private sector;

(IV) One voting member representing an environmental or community-based nonprofit organization;

(V) One voting member representing a packaging material supplier that is not a producer, with the member rotating to a packaging material supplier of a different type of packaging material after each new term;

(VI) One voting member representing a manufacturer of recycled paper products that is not a producer;

(VII) One voting member representing a trade association, chamber of commerce, or other business advocacy organization representing businesses that are headquartered in the state;

(VIII) One voting member representing a retailer's association or a retailer that is not a producer;

(IX) One voting member representing a compost facility;

(X) One voting member who has experience in environmental justice and representing underserved communities;

(XI) One voting member representing a solid waste landfill or transfer station operating an on-site, public-facing recycling collection program;

(XII) One nonvoting member representing the department; and

(XIII) One nonvoting member representing the producer responsibility organization.

(b) (I) The members of the advisory board must have relevant knowledge and expertise in recycling programs or the impacts of covered materials on the state and the environment.

(II) In appointing members, the executive director shall ensure to the extent possible the geographic diversity of the advisory board's membership, including regions outside of the front range.

(3) The executive director shall make all appointments to the advisory board no later than December 31, 2022. The appointments for initial terms to the advisory board shall be staggered so that some of the members serve initial two-year terms and other members serve initial three-year terms, and all members serve subsequent terms of three years. The executive director shall fill any vacancy by appointment for the remainder of the unexpired term.

(4) The advisory board shall convene its first meeting no later than March 1, 2023. At the first meeting, the voting members shall select a chair and vice-chair from among the voting members for a term not to exceed two years, as determined by the advisory board. The advisory board shall conduct annual meetings and may conduct meetings more frequently upon the request of the chair or of at least seven of the voting members of the advisory board. The organization may provide technical and staff assistance to the advisory board.

(5) The advisory board is subject to the open meetings provisions of the Colorado Sunshine Act of 1972, contained in part 4 of article 6 of title 24, and the Colorado Open Records Act, part 2 of article 72 of title 24.

(6) Advisory board members are entitled to be reimbursed at a rate consistent with other boards and commissions created within the department for necessary travel within the state and other reasonable expenses incurred in the performance of their official duties.

(7) The advisory board shall:

(a) Advise the organization throughout the needs assessment process in accordance with section 25-17-705 (3)(b);

(b) Review the needs assessment reported to the advisory board pursuant to section 25-17-705 (3)(c);

(d) Consult with the organization on amendments to the plan proposal and the amended plan proposal;

(e) Recommend that the executive director approve or reject the plan proposal or amended plan proposal;

(f) Review the annual report submitted by the organization under section 25-17-709 (2)(a); and

(g) Consult with the organization on the development and updating of the minimum recyclable list.

(8) In consultation with the organization, the advisory board may recommend amendments to the final plan to the executive director for inclusion in the annual report under section 25-17-709 (2)(c).

Source: L. 2022: Entire part added, (HB 22-1355), ch. 337, p. 2398, � 1, effective August 10.

25-17-705. Producer responsibility program for statewide recycling - needs assessment - plan proposal - rules. (1) (a) On or before June 1, 2023, producers or their designated agents shall establish a nonprofit organization to fulfill the requirements of this part 7 and shall provide notification to the department that includes:

(I) The name, address, and contact information of a person responsible for ensuring the compliance of the nonprofit organization and participating producers with this part 7;

(II) A list of participating producers; and

(III) A description of the funding mechanism that the nonprofit organization will use to conduct the needs assessment.

(b) Upon receipt of the notification given pursuant to subsection (1)(a) of this section, the executive director shall:

(I) Acknowledge receipt of the notification; and

(II) Designate the nonprofit organization as the producer responsibility organization to implement and administer the producer responsibility program for statewide recycling.

(c) The organization designated by the executive director pursuant to subsection (1)(b)(II) of this section must have a governing board with voting members that represent a diverse range of producers by size and type and represent producers of different types of covered materials. The members of the governing board shall not have more than one member per corporate entity. The governing board of the organization shall include nonvoting members that represent trade associations for types of covered materials. The organization shall provide public notice of any board meetings at least seventy-two hours before the board meeting.

(2) The producer responsibility organization shall:

(a) Facilitate a needs assessment in consultation with the advisory board;

(b) Consult with the advisory board in the development of the plan proposal prior to its submission, including in the development of the cost formulas for reimbursements to service providers pursuant to subsection (3)(a)(III) of this section;

(d) Operate and administer the program in accordance with the final plan, the provisions of this part 7, and the rules adopted by the commission under this part 7.

(3) (a) On or before September 1, 2023, the organization shall hire an independent third party approved by the executive director to conduct an assessment of the state's recycling needs. The organization shall issue a request for proposals in accordance with the provisions of the Procurement Code, articles 101 to 112 of title 24, and any rules, for the selection of the independent third party. Prior to the commencement of the needs assessment, the organization shall consult with the advisory board on the scope of the needs assessment and provide any necessary recommendations to the third-party consultant conducting the needs assessment. The needs assessment shall be inclusive of and address the needs of all geographic areas of the state. At a minimum, the needs assessment must identify:

(I) The service availability, capacity, performance, and gaps in recycling services provided to residential covered entities throughout the state and the prices paid for recycling services;

(II) The documented recycling services costs incurred by public and private service providers to provide recycling services for residential covered entities;

(III) Demographic factors and other variables to be considered in the development of reimbursement rates for service providers in accordance with subsection (4)(j) of this section;

(IV) The levels of contamination at materials recovery facilities and compost facilities throughout the state and the impacts of contamination on those facilities;

(V) The service availability, gaps, and recycling services costs associated with providing recycling services to nonresidential covered entities, with particular attention to small businesses, and which types and locations of nonresidential covered entities could be provided with recycling services that would increase statewide collection and recycling rates in a cost-effective manner;

(VI) The processing capacity of existing infrastructure and the additional infrastructure needed to meet or exceed the convenience standards, reduce contamination, and improve the quality of recyclable materials and the projected scenarios for increasing the recycling rate and collection rate of covered materials, as identified pursuant to subsection (3)(a)(XIII) of this section;

(VII) An evaluation of the opportunities and costs of various service methods to increase recycling rates overall for specific covered material types;

(VIII) A proposed list of covered materials for inclusion in the minimum recyclable list and additional materials that may be collected in different geographic areas through curbside services, drop-off centers, or other means;

(IX) The market conditions and opportunities for the use of recycled covered materials in the state and in different geographic areas of the state, including the transportation gaps and opportunities affecting access to markets;

(X) Opportunities for the use of innovative new technologies, including artificial intelligence technologies, for the recycling and reuse of covered materials;

(XI) The availability and scope of any reuse or refill systems in the state affecting the use of covered materials;

(XII) Education needs in the state with respect to the education needs described in section 25-17-707; and

(XIII) At least three projected scenarios for increasing the recycling rate and collection rate of covered materials in the state, including recycling rates and collection rates that the state could meet by January 1, 2030, and January 1, 2035, and the operating and capital costs needed to reach each projected scenario, including:

(A) A review and assessment of the impact of the exemptions described in sections 25-17-703 (13)(b), 25-17-703 (25)(b), and 25-17-713 on the feasibility and short-term and long-term success of the program;

(B) A review and assessment of the impact of producer exemptions in other international and domestic extended producer responsibility programs implemented by a producer responsibility organization; and

(C) A determination of whether any industry sector would be disproportionately impacted as a result of the exemptions described in subsection (3)(a)(XIII)(A) of this section; and

(XIV) The capacity, costs, and gaps for compost facilities to process and recover compostable materials.

(b) The organization shall consult with the advisory board throughout the needs assessment process and in determining which projected scenario identified pursuant to subsection (3)(a)(XIII) of this section to implement in its plan proposal.

(c) On or before January 30, 2024, the organization shall report the results of the needs assessment to the advisory board and the executive director. The executive director shall post the results of the needs assessment on the department's website and provide public notice and an opportunity to comment on the results of the needs assessment. In finalizing the needs assessment, the executive director shall include in the needs assessment a summary of any comments received pursuant to this subsection (3)(c) and identify any significant changes made to the needs assessment based on such comments.

(d) On or before March 15, 2024, the executive director shall submit and present the needs assessment to the joint budget committee or any successor committee. In the submittal and presentation, the executive director shall identify the projected scenarios identified pursuant to subsection (3)(a)(XIII) of this section and make a recommendation as to which projected scenario the plan proposal should incorporate. If the joint budget committee approves the executive director's recommendation, the organization shall implement that projected scenario in the plan proposal. If the joint budget committee does not approve the executive director's recommendation, the committee may propose legislation to direct the organization to implement a projected scenario identified pursuant to subsection (3)(a)(XIII) of this section. If the joint budget committee does not approve the executive director's recommendation, the organization shall not implement a scenario or plan without approval of the general assembly acting by bill.

(e) On or before May 1, 2029, and on or before May 1 every five years thereafter, the organization shall hire an independent third party approved by the executive director to conduct an updated assessment of the state's recycling needs to reevaluate the program and identify any recycling service needs in the state that are not being met by the program. In consultation with the advisory board, the organization may modify the scope of an updated needs assessment by April 15, 2029, and on or before April 15 every five years thereafter. The organization shall report the results of the updated needs assessment to the executive director in accordance with the reporting requirements set forth in subsection (3)(c) of this section. The organization shall use the findings of the updated needs assessment to create an updated plan proposal and submit the updated plan proposal to the advisory board in accordance with subsection (4) of this section. In consultation with the advisory board and the organization, the executive director may waive the requirement to conduct an updated needs assessment under this subsection (3)(e).

(4) On or before February 1, 2025, the organization shall submit a plan proposal for the program to the advisory board, that, except as set forth in subsection (4)(z) of this section, only addresses recycling services for residential covered entities. The plan proposal must cover a period of five years, and an updated plan proposal must be submitted to the advisory board on or before February 1 every five years thereafter. Any updated plan proposal must address recycling services for both residential and any applicable nonresidential covered entities, as identified in the needs assessment pursuant to subsection (3)(a)(V) of this section. In developing the plan proposal and any updated plan proposals, the organization shall solicit and consider input from the advisory board and provide opportunity for additional stakeholder input. To be approved, a plan proposal must:

(a) Provide contact information for the organization and a representative of the organization;

(b) Describe how the plan proposal will address and implement the findings of the needs assessment;

(c) Describe the manner in which the organization solicited and considered input from stakeholders and the advisory board in developing the plan proposal. The organization must provide a summary of any comments about the plan proposal from the advisory board and additional stakeholders and identify changes made to the plan proposal based on the comments.

(d) Describe how the organization will notify affected producers of their obligations under this part 7;

(e) Describe how the organization will track compliance among producers and will collaborate with the executive director to bring producers into compliance;

(f) Include a comprehensive list of the covered materials included in the program in accordance with this part 7;

(g) Establish recycling practices that:

(I) Meet or exceed the convenience standards;

(II) Use open, competitive, and fair procurement practices when entering into contracts with service providers, and, when entering into contracts with private service providers, adopt a preference for service providers with strong labor standards and worker safety practices;

(III) Ensure that any covered materials collected for recycling will be transferred to a responsible end market; and

(IV) Use environmentally sound management practices;

(h) Describe how the organization will work with newspaper publishers and magazine and periodical publishers to accept print or online advertising in lieu of all or a portion of the producer responsibility dues for newspapers, magazines, and periodicals circulated within the state;

(i) Establish a funding mechanism that:

(I) Does not exceed the direct and indirect costs of implementing the program, including the costs of:

(A) Providing recycling services under the program through contracts with service providers or reimbursement of recycling services costs under the reimbursement rates proposed pursuant to subsection (4)(j) of this section;

(B) Meeting the reporting requirements set forth in section 25-17-709 (2);

(D) Developing and updating the final plan;

(E) Implementing the education and outreach program set forth in section 25-17-707;

(F) Reimbursing the department pursuant to section 25-17-715 for its costs in administering and implementing this part 7, including the costs of the advisory board; and

(G) Reimbursing the department pursuant to section 25-17-715 for the costs of enforcing this part 7 pursuant to section 25-17-710;

(II) Is funded through producer responsibility dues. The producer responsibility dues must vary by the type of covered material, whether or not the material is readily recyclable, and be based on the net recycling services costs for each covered material in the state. The organization may use up to five percent of the producer responsibility dues collected from producers for administration of the program, over the terms of the program, in accordance with generally accepted accounting principles, but the organization shall not use any producer responsibility dues collected from producers to pay employee bonuses.

(III) Requires:

(A) Any surplus money generated by the program to be placed back into the program for program improvements or a reduction in producer responsibility dues;

(B) The organization to maintain a financial reserve sufficient to operate the program in a fiscally prudent and responsible manner; and

(C) Annual updates to the producer responsibility dues schedule to reflect changes in program costs and relevant plan revisions and how the organization will solicit and incorporate input from all producers in setting and revising the annual producer responsibility dues schedule;

(IV) Includes eco-modulation factors that lower producer responsibility dues to incentivize:

(A) Reductions in the amount of packaging materials used for products;

(B) Innovations and practices to enhance the recyclability or commodity value of covered materials;

(D) Designs for the reuse and refill of covered materials; and

(E) High recycling and refill rates of covered materials;

(V) Includes eco-modulation factors that increase producer responsibility dues to discourage:

(A) Designs and practices that increase the costs of recycling, reusing, or composting covered materials;

(B) Designs and practices that disrupt the recycling of other materials; and

(VI) At the request of a producer or producers of a covered material, may include a special assessment paid by the producers of that covered material to cover system improvements that improve the collection and recycling of that covered material or facilitate the addition of the covered material to the list of readily recyclable materials;

(j) Include reimbursement rates for one hundred percent of the net recycling services costs of the recycling services provided by service providers under the program consistent with the requirements of section 25-17-706. The reimbursement rates must:

(I) Be calculated using an objective cost formula or formulas;

(II) Incorporate the relevant cost information identified by the needs assessment pursuant to subsection (3)(a)(III) of this section;

(III) Be calculated on a per unit basis such as per ton, per household, or other unit of measurement; and

(IV) Take into account:

(A) Regional recycling services costs;

(B) Population density;

(D) The collection method used;

(E) The revenue generated from covered materials;

(F) The amount of inbound contamination and other factors affecting the quality of covered materials; and

(G) Other demographic factors identified in the needs assessment pursuant to subsection (3)(a)(III) of this section;

(k) Describe the process to evaluate and revise the objective cost formulas as necessary and using documented costs. If the plan proposal includes more than one objective cost formula for recycling services, the plan proposal must describe the conditions under which each formula will be applied.

(l) Include a schedule of reimbursement rates for service providers that elect to participate in the program and be reimbursed by the organization for providing recycling services for the program and describe a process for updating the schedule periodically and as necessary;

(m) Include a proposed budget and a description of the process used to determine producer responsibility dues, including a de minimis level in which no dues are charged and an optional flat rate for producers below a certain size to minimize the administrative and reporting costs of the producers and the organization;

(n) Describe a plan that outlines, if the organization ceases to exist or ceases to administer the program, how any producer responsibility dues that have not been used to implement the program will be transferred to another organization designated by the executive director under subsection (1)(b)(II) of this section to administer the program or will be transferred to the fund to be managed by the department until transferred to another designated organization;

(o) Include the minimum recyclable list established in accordance with section 25-17-706 (1)(a);

(p) Set targets for the minimum collection rates, minimum recycling rates, and minimum postconsumer-recycled-content rates for certain types of covered materials, including paper products, glass, metal, and plastic, that the state will strive to meet by January 1, 2030, and January 1, 2035;

(q) Describe how the organization plans to continue to increase the state's minimum collection rates, minimum recycling rates, and minimum postconsumer-recycled-content rates after January 1, 2030, and January 1, 2035;

(r) Describe how the organization will verify minimum postconsumer-recycled-content rates and how postconsumer-recycled-content rates will be calculated using weight and other metrics and describe any waivers from minimum postconsumer-recycled-content rates granted to a type or subcategory of covered materials and the criteria for evaluating such waivers, including food safety requirements, technological feasibility, or inadequate supply, and how often the waivers will be reviewed;

(s) Describe how the organization will provide producers with the opportunity to purchase postconsumer-recycled materials from processors at market prices if the producer is interested in obtaining recycled feedstock to achieve minimum postconsumer-recycled-content rates;

(t) Describe how the organization will reduce or offset the producer responsibility dues for any producer or group of producers that fund or operate a collection program that:

(I) Covers a specific type of covered material that is not processed by materials recovery facilities; and

(II) Has recycling rates that meet or exceed the minimum recycling rate target set forth in the plan proposal pursuant to subsection (4)(p) of this section;

(u) Describe how the organization will work with service providers to:

(I) Utilize and expand on existing recycling services and infrastructure and existing education and outreach programs;

(II) Reduce contamination of covered materials delivered to materials recovery facilities and compost facilities by:

(A) Requiring each materials recovery facility and compost facility participating in the program to report annually to the organization on contamination levels at each facility; and

(B) Providing funding or other assistance to compost facilities to reduce the costs of managing or increase the effectiveness of efforts to manage contamination and to process and recover compostable packaging materials;

(III) Invest in new or upgraded recycling infrastructure;

(IV) Propose an approach to measure and report on the use of reusable and refillable covered materials and establish goals and strategies for increasing the use of reusable and refillable covered materials;

(V) Mitigate the impacts of covered materials on other materials and equipment at sorting and processing facilities;

(VI) Invest in market development for covered materials in the state; and

(VII) Increase the recycling of collected covered materials;

(v) Describe how the organization will work with and incentivize producers to reduce the packaging of products using covered materials through product design changes, the development or expansion of systems for reusable packaging, and product innovation;

(w) Describe how the program will prioritize the use of end markets that return postconsumer recycled materials to their original product type;

(x) Describe how the organization will evaluate and monitor the use of responsible end markets through methods such as processor contracts or financial incentives;

(y) Describe how the organization will implement the education and outreach program set forth in section 25-17-707;

(z) Describe a process and timeline, beginning no later than 2028, to expand recycling services to applicable nonresidential covered entities, as identified in the needs assessment pursuant to subsection (3)(a)(V) of this section; and

(aa) Include any additional information required by the department.

(5) (a) The advisory board shall review the plan proposal for compliance with this part 7. The advisory board shall consult with the organization throughout its review of the plan proposal. Within ninety days after the submission of the plan proposal to the advisory board, the advisory board shall either provide any recommended amendments to the plan proposal to the organization or, if the advisory board does not have any recommended amendments, forward the plan proposal to the executive director. The organization shall provide responsive answers to the advisory board's recommendations and submit the amended plan proposal to the advisory board within sixty days after its receipt of the recommended amendments. Within forty-five days after the submission of the amended plan proposal to the advisory board, the advisory board shall forward the amended plan proposal to the executive director with its recommendation for approval or rejection and, if applicable, a written explanation of the basis for recommending rejection of the plan proposal. Within eight days after receiving the plan proposal, the executive director shall post the plan proposal on the department's website and provide public notice and an opportunity to comment on the plan proposal.

(b) (I) Within one hundred twenty days after receiving the plan proposal or amended plan proposal, the executive director shall:

(A) Approve the plan proposal or amended plan proposal; or

(B) Reject the plan proposal or amended plan proposal.

(II) If the executive director rejects the plan proposal or amended plan proposal, the executive director shall notify the organization of the rejection and the reasons for the rejection, which reasons must be based on the failure of the plan proposal or amended plan proposal to comply with the requirements specified in subsection (4) of this section. The organization must submit a new plan proposal to the advisory board within sixty days after receiving the executive director's rejection. The new plan proposal must be reviewed by the advisory board and the new plan proposal or new amended plan proposal must be reviewed and approved or rejected by the executive director in accordance with subsection (5)(a) of this section and this subsection (5)(b).

(c) (I) If the executive director approves the plan proposal or amended plan proposal pursuant to subsection (5)(b)(I) of this section, the executive director shall designate the plan proposal or amended plan proposal as the final plan and shall publish the final plan on the department's website.

(II) The organization shall begin implementing the final plan within six months after it is approved.

(6) (a) The organization may submit proposed amendments to the final plan annually to the advisory board for inclusion in the annual report under section 25-17-709 (2)(c). At least sixty days prior to the deadline to submit the annual report, the department may request that the organization submit an amendment to the annual plan to address a specific concern or aspect of the plan. At least thirty days prior to submitting the annual report pursuant to section 25-17-709 (2)(a), the organization shall consult with the advisory board on any proposed amendments to the final plan. The advisory board shall submit any proposed amendments to the executive director. The executive director shall approve or reject the proposed amendments based on the plan proposal requirements specified in subsection (4) of this section.

(b) The organization shall continue to operate the program in accordance with the final plan pending the approval or rejection of a proposed amendment by the executive director. The executive director's rejection of a proposed amendment pursuant to this subsection (6) does not relieve the organization of its responsibility to continue to operate the program in accordance with the final plan.

(7) The executive director shall enforce this part 7 in accordance with section 25-17-710 and the commission shall promulgate rules in accordance with article 4 of title 24 as may be necessary for the administration of this part 7 and the enforcement of this part 7 pursuant to section 25-17-710. Notwithstanding any law to the contrary, the organization may not make any determination as to a person's compliance with this part 7.

(8) (a) On January 1, 2025, and each January 1 thereafter, as an alternative to participating in the program, a producer may submit to the advisory board an individual program plan proposal. A producer must notify the department of its intent to submit an individual program plan proposal by January 1, 2024, and by each January 1 thereafter. The individual program plan proposal must:

(I) Comply with the requirements of subsection (4) of this section, as applicable;

(II) Describe how the producer participating in the individual program plan proposal will contribute to the costs of the department in overseeing the program;

(III) Describe how the producer will reimburse service providers that provide recycling services for the covered materials covered by the individual program plan proposal; and

(IV) Describe any alternative collection programs run by the producer and its recycling rates.

(b) The advisory board shall review and make recommendations on, and the executive director shall approve or reject, any individual program plan proposals in accordance with the procedures set forth in subsection (5) of this section. After the executive director approves the individual program plan proposal, the executive director shall designate the individual program plan proposal as the plan that the producer is authorized to implement and administer as an alternative to participating in the program.

(c) The producer implementing a plan described in subsection (8)(b) of this section shall submit any amendments to the plan to the advisory board in accordance with subsection (6) of this section. The advisory board shall review and make recommendations on, and the executive director shall approve or reject, any amendments to the plan in accordance with subsection (6) of this section.

Source: L. 2022: Entire part added, (HB 22-1355), ch. 337, p. 2401, � 1, effective August 10.