H1023

	SECTION 1. Definitions
	1.	“Brand” shall mean a name, symbol, word or mark that attributes a mattress as the producer of the mattress.
	2.	“Consumer” means a person (including but not limited to individuals, families and business entities) who purchases a mattress for use in this state. 
	3.	“Department” means the Department of Environmental Protection
	4.	“Discarded mattress” means a mattress that has been used and abandoned or discarded in this state, and does not include a mattress transported from outside this state to be discarded in this state.
	5.	“Environmentally sound management” includes, but is not limited to, the following management practices, implemented in a manner that are designed to protect public health and safety and the environment: 
	a.	Keeping detailed documentation of the methods used to: 
	i.	Recycle, reuse or renovate discarded mattresses to the extent feasible, cost-effective, and environmentally efficient; and 
	ii.	track and document the fate of program mattresses from collection through final disposition.  
	b.  Keeping adequate records; 
	c. Conducting performance audits and inspections as determined by a stewardship 		organization; 
	d.  Complying with worker health and safety requirements; and 
	e.  Maintaining adequate liability insurance for a stewardship organization and 		contractors working for the stewardship organization.
	6.	“Final disposition” shall mean the point beyond which no further processing takes place and a discarded mattress and its components have been recycled, renovated or disposed of.
	7.	“Foundation” shall mean a ticking-covered structure that is used to support a mattress or sleep surface and that may be constructed of frames, foam, box springs or other materials, used alone or in combination. 
	8.	"Mattress" means a resilient material or combination of materials that is enclosed by a ticking, is used alone or in combination with other products and is intended for sleeping upon or a foundation.
	a.	“Mattress” includes a foundation and a renovated mattress or renovated foundation.
	b.	“Mattress” does not mean the following:
	i.	An unattached mattress pad or unattached mattress topper, including items with resilient filling, with or without ticking, intended to be used with or on top of a mattress.
	ii.	A sleeping bag or pillow.
	iii.	A car bed, crib, or bassinet mattress.
	iv.	Juvenile products, including a carriage, basket, dressing table, stroller, playpen, infant carrier, lounge pad, or crib bumper, and the pads for those juvenile products.
	v.	A product containing liquid- and gaseous-filled ticking, including a water bed and air mattress that does not contain upholstery material between the ticking and the mattress core.
	vi.	Upholstered furniture that does not otherwise contain a detachable mattress or that is a fold out sofa bed or futon. 
	9.	“Person” means the United States, the state, a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or other legal entity.
	10.	“Premium service” means a service such as at-home pickup service, including curbside pickup service.
	11.	“Producer” means any person, irrespective of the selling technique used, including that of remote sale, that: (a)Manufactures a mattress that is sold, offered for sale or distributed in this state; or (b) Is the owner of a trademark or brand under which a mattress is sold, offered for sale or distributed in this state, whether or not such trademark or brand is registered in this state; and (c) Unless covered by (a) or (b), imports a mattress into the United States that is sold or offered for sale in this state.
	12.	 “Program mattress” means a discarded mattress that a stewardship organization will provide environmentally sound management for under a mattress stewardship program.   “Program mattress” shall not mean a mattress transported from outside this state to be discarded in this state or a mattress rendered unrecyclable by solid waste collection methods.
	13.	“Recycler” means a person that recycles discarded mattresses.
	14.	"Recycling" means any process in which discarded mattresses and components may lose their original identity or form as they are dismantled and their materials transformed into new, usable or marketable materials
	15.	“Renovate” shall mean to alter a discarded mattress for resale through adding to or replacing the ticking or filling, adding additional filling or replacing components. “Renovate” shall not mean:  
	(a) Stripping a discarded mattress of the ticking or filling without adding new material; 
	(b) The sanitization or sterilization of a discarded mattress without other alteration to the discarded mattress;
	(c) Recycling.
	(d) Refurbishing that disqualifies a mattress for a red wholesale renovator tag to be affixed to the mattress, in accordance with the regulations adopted by the Department
	16.	“Retailer” means a person that offers new, used or renovated mattresses for retail sale.
	17.	“Sale” or “sell” means any transfer of title for consideration, including remote sales conducted through sales outlets, catalogues, or the internet or any other similar electronic means.  “Sale” or “sell” does not mean a donation.
	18.	“Stewardship Assessment” means the per unit amount added to the purchase price of a mattress sold to a consumer to cover the costs of a mattress stewardship program.
	19.	“Stewardship organization” shall mean a nonprofit organization designated by a producer or group of producers to implement a mattress stewardship program. 
	20.	“Ticking” shall mean the outermost layer of fabric or related material of a mattress. “Ticking” shall not mean any layer of fabric or material quilted together with, or otherwise attached to, the outermost layer of fabric or material of a mattress.
	SECTION 2.  Establishment of the Program; Retailer, Producer and Renovator Duties
	(1)	Except as provided in subsection (3) of this section, a producer, renovator or retailer shall not sell or offer for sale any mattress to any person in this state unless the producer, renovator or retailer is registered with a stewardship organization with a plan approved by the Department under section 5 of this Act.
	(2)	On and after the date that a mattress stewardship program is implemented, a retailer:
	a.	Shall purchase a mattress only from a producer or renovator that is registered with a stewardship organization as of the date of purchase as evidenced by information made available by a stewardship organization pursuant to subsection (4) of this section;
	b.	Shall collect, at the point of sale, the mattress stewardship assessment established pursuant to a plan approved by the Department under section 5 of this Act and remit the mattress stewardship assessment to the stewardship organization that implements the mattress stewardship program; and
	c.	Shall provide to consumers, at the point of sale, information on available collection opportunities for discarded mattresses through the mattress stewardship program.
	(3)	Following the implementation of the mattress stewardship program, a retailer complies with the requirements of this section if, on the date the mattress was ordered from the producer or its agent, the producer of the mattress brand is listed on the [Department’s] website as implementing or participating in an approved mattress stewardship program.  
	(4)	A stewardship organization shall make available on the stewardship organization’s website and on request:
	a.	Information on registered brands provided to the stewardship organization by the producers and renovators registered with the stewardship organization;
	b.	Information on available collection opportunities; and
	c.	Any other information necessary for retailers to comply with subsection (2) of this section.
	(5)	A retailer or renovators shall identify the mattress stewardship assessment as a separate line item on the receipt for a mattress provided to a consumer at the point of sale.
	(6)	A stewardship organization or shall use a mattress stewardship assessment collected in this state to pay the costs to plan, implement, administer and operate a mattress stewardship program in this state, including a financial reserve to prudently prepare for unexpected costs.
	(7)	Nothing in this section prevents a stewardship organization from, with notice to the Department, coordinating efforts for carrying out a mattress stewardship program in this state with programs for the collection and environmentally sound management of discarded mattresses in other states.
	SECTION 3. Program Plan
	(1)	 A stewardship organization shall submit to the Department a plan for the development and implementation of a mattress stewardship program. The plan must:
	a.	Describe how the stewardship organization will manage and administer a mattress stewardship program.
	b.	Identify each producer, renovator and retailer that is registered with the stewardship organization as of 30 days before the plan is submitted to the Department.
	c.	Include a description of how the stewardship organization will provide for the environmentally sound management of program mattresses, regardless of the producer.  The description shall include, at a minimum:
	i.	Identification of the proposed recyclers that the stewardship organization will contract with to process program mattresses and the recycling methods that the recyclers will use;
	ii.	How the stewardship organization will implement the mattress stewardship program to engage in environmentally sound management practices; and
	iii.	Describe how non-program mattresses will be handled.
	d.	There shall be no charge at the point of collection of discarded program mattresses, except that the stewardship organization may allow for a person that provides a premium service under the mattress stewardship program to charge for the additional cost of that premium service for program mattresses. 
	e.	Provide service as described in section 4 of this Act.
	f.	Establish performance goals for:
	i.	The collection target and recycling rates of program mattresses; and
	ii.	Public awareness of the mattress stewardship program.
	g.	Include an anticipated annual operating budget, as described in subsection (2) of this section, for the mattress stewardship program for two years of operation of the program, beginning with the year in which the plan is submitted to the Department.
	h.	Include a proposed method for collecting the mattress stewardship assessment from retailers and a method for ensuring the assessment is remitted to the stewardship organization. The mattress stewardship assessment must be sufficient to recover, but not exceed, the costs of establishing and administering the mattress stewardship program.
	i.	Provide for public education and awareness of discarded mattress collection opportunities statewide and on a regular basis.
	j.	Address procedures for identifying substantial or material changes to the system for collecting discarded mattresses for which a plan amendment will be required under section 6 of this Act.
	k.	Describe the criteria for determining whether a mattress should be rejected as unacceptable for recycling because it is contaminated, wet, crushed, or would otherwise pose a health or safety risk to personnel or equipment, and how the solid waste sector would dispose of such mattresses;
	(2)	The anticipated annual operating budget for a mattress stewardship program shall include, but need not be limited to, budget line items relating to:
	a.	The collection, transportation and processing of program mattresses
	b.	The anticipated amount of moneys that the stewardship organization will hold in un- allocated reserve funds for the mattress stewardship program; and
	c.	The annual fee to be paid to the Department pursuant to section 7 (3) of this Act.
	(3)	In operating a mattress stewardship program, a stewardship organization shall:
	a.	Meet the requirements of the plan submitted under this section, as approved by the Department pursuant to section 5 of this Act.
	b.	Meet or exceed the service requirements described in section 4 of this Act.
	SECTION 4.  Convenience Standards
	(1)	(a) A plan submitted under section 3 of this Act must provide for convenient consumer access to the program, including permanent mattress dropoff locations throughout the state, collection events in underserved areas of the state, and a convenient way for the public to access a list of mattress collection opportunities.
	(b) A plan may provide for methods for providing convenient service that are alternative methods to those provided for in paragraph (a) of this subsection if, based on a geographic information systems analysis or additional information, the alternative methods will result in providing service to residents throughout this state at an equivalent level of convenient service compared with the methods provided for under paragraph (a) of this subsection.
	(2)	A stewardship organization may:
	a.	Establish and maintain collection sites at permitted solid waste facilities or other suitable sites for the collection of discarded mattresses, provided such sites do not impose a fee for making space available for storage containers that the stewardship organization shall provide at no charge. 
	b.	Provide for bulk pickup service at no cost to collect a minimum of 100 properly source separated program mattresses at one time from persons including:
	i.	Retailers;
	ii.	Health care, educational or military facilities; and
	iii.	Hotels, motels, inns and other establishments that provide transient lodging.
	c.	Offer organizations that recycle or renovate discarded mattresses the opportunity to participate as collection sites.
	d.	Notify retailers that sell or offer for sale mattresses made or sold by producers or renovators registered with the stewardship organization about the mattress stewardship program and provide retailers with information necessary to comply with sections 1 to 13 of this Act.
	SECTION 5. Plan Approval
	(1)	The Department shall approve, reject or request additional information for a plan submitted under section 3 of this Act or an amendment to a plan submitted under section 6 of this Act no later than 60 days after the date the Department receives the plan or plan amendment from the stewardship organization. The Department shall post a plan or plan amendment on its website and provide for a public comment period of no less than 15 days before approving, rejecting or requesting additional information on the plan or plan amendment.
	(2)	 If the Department rejects, or requests additional information pertaining to Section 3 of this act for, the plan or plan amendment, the Department must provide the stewardship organization with the reasons, in writing, that the plan or plan amendment does not meet the plan requirements of section 3of this Act. The stewardship organization shall have 30 days from the date that the rejection or request for additional information is received to submit to the Department any additional information necessary for the approval of the plan or plan amendment. The Department shall review and approve or disapprove the revised plan or plan amendment no later than 30 days after the date the Department receives the revised plan or plan amendment.
	(3)	The Department’s rejection of, or request for additional information for, a plan amendment does not relieve a stewardship organization from continuing to implement a mattress stewardship program in compliance with a previously approved plan pending a final action by the department on the plan amendment.
	(4)	Beginning no later than 1-year after a plan or amended plan is approved under this section, a stewardship organization must implement a mattress stewardship program as described in the plan or amended plan.
	SECTION 6.  Plan Amendment
	(1)	A stewardship organization shall submit to the Department for approval an amendment to a plan that has been approved by the Department under section 5 of this Act if, at any time:
	a.	There is a substantial or material change, as provided for under section 3(1)(j) of this Act, to the system for collecting discarded mattresses; or
	b.	The Department requests an amendment to the plan in order to address a specific finding by the department that the program plan is outdated as described in the program plan.
	(2)	The Department shall review the program plan every five years after initial plan approval.  If it deems that the requirements of section 6(1) have been met, it may require the stewardship organization to submit to the Department, an amended plan for its review and approval or rejection.  
	(3)	The Department may not request an amendment under subsection (1) of this section until two years after the implementation of a mattress stewardship program by the stewardship organization.
	(4)	Within 30 days of the following, the stewardship organization shall provide written notice to the Department:
	a.	A change in the location or the number of permanent collection sites identified in the plan;
	b.	A change in the producers or renovators that are registered with the stewardship organization; or
	c.	A change in the recyclers or renovators and transporters that manage the discarded mattresses collected by the stewardship organization under the program.
	(5)  After one year from the date when the collection of the stewardship assessment commences, the stewardship organization may change the amount of such assessment, but the organization shall not change the amount of such assessment more frequently than annually unless the organization provides good cause to change the assessment earlier and shall provide no less than 90 days' notice to the public before the change in the amount of such assessment takes place.
	(6) The stewardship organization may conduct a financial review of the fees of those parties required to remit the stewardship assessment to the mattress recycling organization to verify that the assessments paid are proper and accurate and to confirm that all parties required by this article to pay or collect the assessment are paying or collecting the proper amount. The financial review shall be carried out in accordance with generally accepted auditing practices and shall be limited in scope to confirm whether the stewardship assessment has been properly collected on all sales of mattresses to consumers in the Commonwealth. The stewardship organization shall hire independent third-party auditors to conduct the financial review. The organization shall provide to the Department a copy of such financial review reports.
	(7) A proposed change to the mattress stewardship assessment shall not be grounds to require a program plan amendment. 
	SECTION 7.  Annual Report
	(1)	A stewardship organization that implements a mattress stewardship program pursuant to a plan approved by the Department under section 5 of this Act shall, no later than July 1 of each year, submit for review and approval to the Department:
	a.	The annual report provided for under subsection (2) of this section for the preceding calendar year;
	b.	An updated budget for the upcoming calendar year that follows the budget requirements provided for in section 3 of this Act; and
	(2)	The annual report submitted by a stewardship organization shall include, at a minimum, with respect to mattresses collected in this state:
	a.	The total sales of mattresses sold to consumers in this state in the previous calendar year by producers, renovators and retailers registered with the stewardship organization;
	b.	The mattress stewardship program’s costs and revenues for the previous calendar year;
	c.	Information on the number and tonnage of discarded mattresses collected pursuant to the mattress stewardship program for recycling during the previous calendar year;
	d.	The weight of mattress materials recycled and the final disposition of mattress materials, by weight and by material, sold as commodities in secondary markets;
	e.	The weight of program mattress materials sent for disposal at each of the following:
	i.	Waste-to-energy facilities;
	ii.	Landfills; and
	iii.	Any other facilities;
	f.	An evaluation of why the mattress materials sent for disposal were not recycled and a description of program efforts to increase the recycling rate of mattress materials under the mattress stewardship program;
	g.	The strategies of the stewardship organization will take to address discarded mattresses that are not program mattresses and discarded mattresses that are illegally dumped;
	h.	A summary of the public education offered in the previous calendar year that supports the mattress stewardship program and examples of public education materials;
	i.	An evaluation of the effectiveness of methods and processes used to achieve the approved program plan goals of the mattress stewardship program, information on progress made toward achieving the goals, an explanation of why any goals were not met during the previous calendar year and any options for improving progress toward meeting the goals in the future, if applicable;
	j.	A report by an independent certified public accountant, retained by the stewardship organization at the stewardship organization’s expense, on the accountant’s audit of the stewardship organization’s financial statements;
	k.	A report on the outcome of financial review of entities the stewardship organization contracts with, as provided in section6(6) of this Act; and
	l.	Recommendations for changes to the mattress stewardship program, including continuous improvement.
	(3)	The Department shall establish an annual fee to be paid by the stewardship organization that is reasonably calculated to cover the actual costs to the Department to administer, implement and enforce sections 1 to 13 of this Act. The Department shall provide notice to a stewardship organization no later than April 1 of each year of the annual fee for the upcoming calendar year. Fees collected by the Department under this section shall be deposited in the State Treasury to the credit of the Mattress Stewardship Fund established under section 9 of this Act.
	SECTION 8.  Department Powers
	(1)	 The Department shall have the power to enter upon and inspect, at any reasonable time, any public or private property, premises or place for the purpose of investigating either an actual or suspected violation of sections 1 to 13 of this Act.
	(2)	A stewardship organization shall retain all records related to implementation of a mattress stewardship program for not less than three years and make the records available for inspection by the Department upon request.
	(3)	The Department shall maintain on its website a list of all producers, renovators and retailers that are in compliance with sections 1 to 13 of this Act.
	(4)	Upon a written finding that a manufacturer, renovator, distributor, recycler, or retailer has not met a material requirement of this chapter, in addition to any other penalties authorized under this chapter, the department may take any of the following actions, after affording the manufacturer, organization, renovator, distributor, recycler, or retailer a reasonable opportunity to respond to, or rebut, the finding, to ensure compliance with the requirements of this chapter:
	a.	Require additional reporting requirements relating to compliance with the material requirement identified by the department.
	b.	Remove the manufacturer, renovator, or distributor from the department’s internet website and list of compliant manufacturers, renovators, and distributors, as specified in Section 2(4).
	c.	levy civil penalties as described in Section 12 of this act.
	SECTION 9.  Mattress Stewardship Fund
	The Mattress Stewardship Fund is established, separate and distinct from the General Fund. All moneys in the Mattress Stewardship Fund are continuously appropriated to the Department and may be used only to pay the costs of administering, implementing and enforcing sections 1 to 13 of this Act.
	SECTION 10.  Antitrust immunity
	(1)	The public interest is served by producers and stewardship organizations collaborating to develop, fund and implement mattress stewardship programs.  The establishment, administration, setting, collection and disbursement of the stewardship assessment shall be exempt from federal and state antitrust laws. 
	(2)	(a) This section does not authorize any person to engage in activities or to conspire to engage in activities that constitute per se violations of state or federal antitrust laws that are not authorized under sections 1 to 13 of this Act.
	(b)	This section does not apply to any activities related to:
	a.	Pricing agreements for mattresses unrelated to the mattress stewardship assessment;
	b.	Agreements regarding the output or production of mattresses; or
	c.	Restrictions on the geographic area in which, or the consumers to whom, mattresses will be sold.
	(3)	The Department shall actively supervise the conduct of a stewardship organization in establishing, administering, collecting and disbursing the mattress stewardship assessment.
	SECTION 11.  Regulatory Authority
	The Department may adopt rules as necessary to implement sections 1 to 13 of this Act.
	SECTION 12. Civil Penalties
	(1)	A retailer that violates this part is subject to a civil penalty not to exceed $100 per day for each day of the violation.
	(2)	(a) a producer, renovator, or representative organization that violates this part is subject to a civil penalty not to exceed $1,000 per day for each day of the violation.
	(b) any penalty collected under this section shall be placed in the mattress stewardship fund to be used by the [department] to ensure the implementation of approved mattress stewardship programs.
	(3)	In evaluating whether to impose a civil penalty, and in determining the amount of such civil penalty, the Department shall take into account the materiality of the violation, whether the violation is wholly or partially the result of factors beyond the control of the producer or mattress recycling organization, whether the producer or mattress recycling organization has made a good faith effort to comply with the provisions of this article, and whether the violation can be addressed through means other than a civil penalty.
	SECTION 13. Program Deadlines
	(1)	Initial plans for mattress stewardship programs under section 3 of this Act must be submitted to the Department no later than one year after this Act becomes law.
	(2)	Notwithstanding section 5 (4) of this Act, a stewardship organization shall implement a mattress stewardship program as described in an initial plan submitted pursuant to subsection (1) of this section no later than one year after the date that the initial plan is approved by the Department under section 5 of this Act.