PRINTER'S NO. 3219
No. 2320 Session of 1990
INTRODUCED BY SCRIMENTI, GEORGE, TANGRETTI, CAPPABIANCA,
KUKOVICH, FOX, PESCI, NAHILL, KOSINSKI, STISH, DOMBROWSKI,
McHALE, ARGALL, PETRARCA, J. L. WRIGHT, MORRIS, D. R. WRIGHT,
FREEMAN, G. SNYDER, RITTER, D. W. SNYDER, PISTELLA, RUDY AND
TRELLO, MARCH 21, 1990
REFERRED TO COMMITTEE ON CONSERVATION, MARCH 21, 1990
AN ACT
1 Regulating toxic materials used in packaging; providing
2 additional duties of the Department of Environmental
3 Resources and the Environmental Quality Board; and providing
4 for enforcement, remedies and penalties.
5 The General Assembly finds and declares as follows:
6 (1) The management of solid waste can pose a wide range
7 of hazards to public health and safety and to the
8 environment.
9 (2) Packaging comprises a significant percentage of the
10 overall solid waste stream.
11 (3) The presence of heavy metals in packaging is a part
12 of the total concern in light of their likely presence in
13 emissions or ash when packaging is incinerated, or in
14 leachate when packaging is landfilled.
15 (4) Lead, mercury, cadmium and hexavalent chromium, on
16 the basis of available scientific and medical evidence, are
17 of particular concern.
1 (5) It is desirable as a first step in reducing the
2 toxicity of packaging waste to eliminate the addition of
3 these heavy metals to packaging.
4 (6) The intent of this act is to achieve this reduction
5 in toxicity without impeding or discouraging the expanded use
6 of postconsumer materials in the production of packaging and
7 its components.
8 TABLE OF CONTENTS
9 Chapter 1. Preliminary Provisions
10 Section 101. Short title.
11 Section 102. Definitions.
12 Section 103. Powers and duties of department.
13 Section 104. Powers and duties of board.
14 Chapter 3. Removal of Toxic Substances
15 Section 301. Schedule for removal.
16 Section 302. Exemptions.
17 Section 303. Certificate of compliance.
18 Chapter 5. Enforcement
19 Section 501. Unlawful conduct.
20 Section 502. Enforcement orders.
21 Section 503. Restraining violations.
22 Section 504. Civil penalties.
23 Section 505. Criminal penalties.
24 Section 506. Remedies of citizens.
25 Section 507. Public access.
26 Chapter 11. Miscellaneous Provisions
27 Section 1101. Report by department.
28 Section 1102. Repeals.
29 Section 1103. Effective date.
30 The General Assembly of the Commonwealth of Pennsylvania
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1 hereby enacts as follows:
2 CHAPTER 1
3 PRELIMINARY PROVISIONS
4 Section 101. Short title.
5 This act shall be known and may be cited as the Toxics in
6 Packaging Act.
7 Section 102. Definitions.
8 The following words and phrases when used in this act shall
9 have the meanings given to them in this section unless the
10 context clearly indicates otherwise:
11 "Board."" The Environmental Quality Board.
12 "CONEG." The Coalition of Northeastern Governors.
13 "Department." The Department of Environmental Resources of
14 the Commonwealth.
15 "Distributor." Any person, firm or corporation who takes
16 title to goods purchased for resale.
17 "Manufacturer." Any person, firm or corporation who
18 manufactures packages or packaging components.
19 "Package." A container providing a means of marketing,
20 protecting or handling a product and shall include a unit
21 package, an intermediate package and a shipping container as
22 defined in American Society for Testing Materials (ASTM) D996.
23 The term shall also include unsealed receptacles such as
24 carrying cases, crates, cups, pails, rigid foil and other trays,
25 wrappers and wrapping films, bags and tubs.
26 "Packaging component." Any individual assembled part of a
27 package such as, but not limited to, any interior or exterior
28 blocking, bracing, cushioning, weatherproofing, exterior
29 strapping, coatings, closures, inks and labels.
30 "Person." An individual, firm, corporation, association,
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1 partnership, consortium, joint venture, commercial entity,
2 authority, interstate body or other legal entity which is
3 recognized by law as the subject of rights and duties. The term
4 includes the Federal Government, state governments and political
5 subdivisions.
6 "Postconsumer material." Any product generated by a business
7 or consumer which has served its intended end use and which has
8 been separated or diverted from solid waste for the purposes of
9 collection and recycling. The term does not include internally
10 generated scrap that is commonly returned to industrial or
11 manufacturing processes.
12 "Purchaser." Any person, firm or corporation who purchases
13 packages or packaging components from a manufacturer or
14 distributor for the purposes of marketing, protecting or
15 handling the contents of the package or packaging component,
16 including a product intended for retail sale.
17 Section 103. Powers and duties of department.
18 The department shall:
19 (1) Administer and enforce the provisions of this act
20 and the regulations adopted hereunder.
21 (2) Issue orders to enforce the provisions of this act
22 and the regulations promulgated hereunder.
23 (3) Institute, in a court of competent jurisdiction,
24 proceedings to compel compliance with this act, regulations
25 promulgated under this act or an order of the department.
26 (4) Institute prosecutions under this act.
27 Section 104. Powers and duties of board.
28 The board shall adopt any regulations needed by the
29 department to accomplish the purposes and carry out the
30 provisions of this act.
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1 CHAPTER 3
2 REMOVAL OF TOXIC SUBSTANCES
3 Section 301. Schedule for removal.
4 (a) General rule.--
5 (1) Not later than two years after the effective date of
6 this act, no package or packaging component shall be offered
7 for sale or for promotional purposes by its manufacturer or
8 distributor in this Commonwealth which includes, in the
9 package itself or in any packaging component, inks, dyes,
10 pigments, adhesives, stabilizers or any other additives
11 containing any lead, cadmium, mercury or hexavalent chromium
12 which has been intentionally introduced as an element during
13 manufacturing or distribution as opposed to the incidental
14 presence of any of these elements as permitted in subsection
15 (b).
16 (2) Not later than two years after the effective date of
17 this act, no product shall be offered for sale or for
18 promotional purposes by its manufacturer or distributor in
19 this Commonwealth in a package which includes, in the package
20 itself or in any of its packaging components, inks, dyes,
21 pigments, adhesives, stabilizers or any other additives
22 containing any lead, cadmium, mercury or hexavalent chromium
23 which has been intentionally introduced as an element during
24 manufacturing or distribution as opposed to the incidental
25 presence of any of these elements as permitted in subsection
26 (b).
27 (b) Limits on concentration levels.--The sum of the
28 concentration levels of lead, cadmium, mercury and hexavalent
29 chromium present in any package or packaging component, which
30 shall constitute an incidental presence, shall not exceed the
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1 following:
2 (1) 600 parts per million by weight (0.06%) effective
3 two years after the effective date of this act;
4 (2) 250 parts per million by weight (0.025%) effective
5 three years after the effective date of this act; and
6 (3) 100 parts per million by weight (0.01%) effective
7 four years after the effective date of this act.
8 Section 302. Exemptions.
9 All packages and packaging components shall be subject to
10 this act except the following:
11 (1) Those packages or packaging components with a code
12 indicating that the date of manufacture was not later than
13 two years after the effective date of this act.
14 (2) Those packages or packaging components to which
15 lead, cadmium, mercury or hexavalent chromium have been added
16 in the manufacturing, forming, printing or distribution
17 process in order to comply with health or safety requirements
18 of Federal law or for which there is no feasible alternative.
19 The manufacturer of a package or packaging component must
20 petition the department for these exemptions. The department
21 may grant a two-year exemption if warranted which may be
22 renewed for an additional two years. For purposes of this
23 paragraph, a use for which there is no feasible alternative
24 is one in which the regulated substance is essential to the
25 protection, safe handling or function of the package's
26 contents.
27 (3) Packages and packaging components that would not
28 exceed the maximum contaminant levels set forth in section
29 301(b) but for the additional postconsumer materials' and
30 provided that the exemption for this paragraph shall expire
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1 six years after the effective date of this act.
2 Section 303. Certificate of compliance.
3 (a) General rule.--No later than two years after the
4 effective date of this act, a certificate of compliance stating
5 that a package or packaging component is in compliance with the
6 requirements of this act shall be furnished by its manufacturer
7 or supplier to its purchaser provided that, where compliance is
8 achieved under exemption(s) provided in section 302(2) or (3),
9 the certificate shall state the specific basis upon which the
10 exemption is claimed. The certificate of compliance shall be
11 signed by an authorized official of the manufacturing or
12 supplying company. The purchaser shall retain the certificate of
13 compliance for as long as the package or packaging component is
14 in use. A copy of the certificate of compliance shall be kept on
15 file by the manufacturer or supplier of the package or packaging
16 component. Certificates of compliance, or copies thereof, shall
17 be furnished to the department upon its request and to members
18 of the public in accordance with section 507.
19 (b) New or amended certificates.--If the manufacturer or
20 supplier of the package or packaging component reformulates or
21 creates a new package or packaging component, the manufacturer
22 or supplier shall provide an amended or new certificate of
23 compliance for the reformulated or new package or packaging
24 component.
25 CHAPTER 5
26 ENFORCEMENT
27 Section 501. Unlawful conduct.
28 It shall be unlawful for any person to:
29 (1) Violate any provision of this act, any regulations
30 promulgated under this act or any order of the department.
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1 (2) Tender for sale to a wholesaler or retailer any
2 package, packaging component or packaged product in violation
3 of this act or any regulation promulgated under this act.
4 (3) Furnish a certificate under section 303 when the
5 package or packaging component does not comply with section
6 301 or 302.
7 (4) Provide a certificate under section 303 that
8 contains false information.
9 Section 502. Enforcement orders.
10 (a) Issuance.--The department may issue such orders to
11 persons as it deems necessary to aid in the enforcement of the
12 provisions of this act or any regulation. The power of the
13 department to issue an order under this act is in addition to
14 any other remedy which may be afforded to the department
15 pursuant to this act or any other act.
16 (b) Compliance.--It shall be the duty of any person to
17 proceed diligently to comply with any order issued pursuant to
18 subsection (a). If such person fails to proceed diligently or
19 fails to comply with the order within such time, if any, as may
20 be specified, such person shall be guilty of contempt and shall
21 be punished by the court in an appropriate manner, and, for this
22 purpose, application may be made by the department to the
23 Commonwealth Court, which is hereby granted jurisdiction.
24 Section 503. Restraining violations.
25 (a) Injunctions.--In addition to any other remedies provided
26 in this act, the department may institute a suit in equity in
27 the name of the Commonwealth where unlawful conduct exists for
28 an injunction to restrain a violation of this act, any
29 regulation or any order of the department. The Commonwealth
30 shall not be required to furnish bond or other security in
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1 connection with such proceedings. In addition to an injunction,
2 the court, in such equity proceedings, may levy civil penalties
3 as specified in section 504.
4 (b) Jurisdiction.--In addition to any other remedies
5 provided for in this act, upon relation of any district attorney
6 of any county affected or upon relation of the solicitor of any
7 county or municipality affected, an action in equity may be
8 brought in a court of competent jurisdiction for an injunction
9 to restrain any and all violations of this act, any regulation
10 or order of the department.
11 (c) Concurrent remedies.--The penalties and remedies
12 prescribed by this act shall be deemed concurrent, and the
13 existence of or exercise of any remedy shall not prevent the
14 department from exercising any other remedy hereunder, at law or
15 in equity.
16 (d) Venue.--Actions instituted under this section may be
17 filed in the appropriate court of common pleas or in the
18 Commonwealth Court, which courts are hereby granted jurisdiction
19 to hear such actions.
20 Section 504. Civil penalties.
21 (a) Assessment.--In addition to proceeding under any other
22 remedy available at law or in equity for a violation of any
23 provision of this act, any regulation or any order of the
24 department, the department may assess a civil penalty upon a
25 person for such violation. In determining the amount of the
26 penalty, the department shall consider the willfulness of the
27 violation, savings resulting to the person in consequence of the
28 violation, deterrence of future violations and other relevant
29 factors.
30 (b) Escrow.--When the department assesses a civil penalty,
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1 it shall inform the person of the amount of the penalty. The
2 person charged with the penalty shall then have 30 days to pay
3 the penalty in full or, if the person wishes to contest either
4 the amount of the penalty or the fact of the violation, either
5 to forward the proposed amount to the department for placement
6 in an escrow account with the State Treasurer or with a bank in
7 this Commonwealth or to post an appeal bond in the amount of the
8 penalty. The bond must be executed by a surety licensed to do
9 business in this Commonwealth and must be satisfactory to the
10 department. If, through administrative or judicial review of the
11 proposed penalty, it is determined that no violation occurred or
12 that the amount of the penalty shall be reduced, the department
13 shall, within 30 days, remit the appropriate amount to the
14 person, with interest accumulated by the escrow deposit. Failure
15 to forward money or the appeal bond to the department within 30
16 days shall result in a waiver of all legal rights to contest the
17 violation or the amount of the penalty.
18 (c) Amount.--The maximum civil penalty which may be assessed
19 pursuant to this section is $10,000 per violation. Each
20 violation of any provision of this act, regulation or order of
21 the department shall constitute a separate offense under this
22 section.
23 (d) Statute of limitation.--Notwithstanding any other
24 provision of law to the contrary, there shall be a statute of
25 limitations of five years upon actions brought by the
26 Commonwealth under this section.
27 Section 505. Criminal penalties.
28 (a) Summary offense.--A person who violates this act, any
29 regulation or any order of the department shall, upon conviction
30 thereof in a summary proceeding, be sentenced to pay a fine of
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1 not less than $100 and not more than $1,000 and costs and, in
2 default of the payment of such fine and costs, to undergo
3 imprisonment for not more than 30 days.
4 (b) Misdemeanor offense.--A person who violates any
5 provision of this act, any regulation or any order of the
6 department commits a misdemeanor of the third degree and shall,
7 upon conviction, be sentenced to pay a fine of not less than
8 $1,000 nor more than $10,000 per day for each violation or to
9 imprisonment for a period of not more than one year, or both.
10 (c) Subsequent offenses.--A person who, within two years
11 after a conviction of a misdemeanor for any violation of this
12 act, any regulation or order of the department, violates any
13 provision of this act, any regulation or any order of the
14 department commits a misdemeanor of the second degree and shall,
15 upon conviction, be sentenced to pay a fine of not less than
16 $2,500 nor more than $25,000 for each violation or to
17 imprisonment for a period of not more than two years, or both.
18 (d) Violations to be separate offense.--Each violation of
19 any provision of this act or any order issued hereunder shall
20 constitute a separate offense under subsection (a), (b) or (c).
21 Section 506. Remedies of citizens.
22 (a) Authority to bring civil action.--Except as provided in
23 subsection (c), any aggrieved person may commence a civil action
24 on his behalf against any person who is alleged to be in
25 violation of this act, any regulation or order of the
26 department.
27 (b) Jurisdiction.--The board is hereby given jurisdiction
28 over citizen suit actions brought under this section against the
29 department. Actions against any other persons under this section
30 may be taken in a court of competent jurisdiction. Such
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1 jurisdiction is in addition to any rights of action now or
2 hereafter existing in equity or under common law or statutory
3 law.
4 (c) Notice.--No action may be commenced under this section
5 prior to 60 days after the plaintiff has given notice of the
6 violation to the department and to any alleged violator of the
7 act, or of any regulation or order of the department which has
8 allegedly been violated; nor shall any action be commenced under
9 this section if the department has begun and is diligently
10 prosecuting an administrative action before the Environmental
11 Hearing Board, or a civil or criminal action in a court of the
12 United States or the Commonwealth to require compliance with
13 this act.
14 (d) Award of costs.--The Environmental Hearing Board or a
15 court of competent jurisdiction, in issuing any final order in
16 any action brought pursuant to subsection (a), may award costs
17 of litigation, including reasonable attorney and expert witness
18 fees, to any party, whenever the board or court determines such
19 award is appropriate.
20 Section 507. Public access.
21 (a) Certificate of compliance.--Any request from a member of
22 the public for any certificate of compliance from the
23 manufacturer or supplier of a package or packaging component
24 shall be:
25 (1) made in writing with a copy provided to the
26 department;
27 (2) made specific as to package or packaging component
28 information requested; and
29 (3) responded to by the manufacturer or supplier within
30 60 days.
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1 (b) Confidential information.--The department may upon
2 request designate records, reports or information as
3 confidential when the person providing the information
4 demonstrates that the information contains the trade secrets,
5 processes, operations, style of work or apparatus of a person or
6 is otherwise confidential business information. When submitting
7 information to the department under this act, a person shall
8 designate the information which the person believes is
9 confidential or shall submit the information separately from
10 other information being submitted.
11 CHAPTER 11
12 MISCELLANEOUS PROVISIONS
13 Section 1101. Report by department.
14 The department shall, in consultation with the Source
15 Reduction Council of CONEG, review the effectiveness of this act
16 no later than 42 months after its effective date and shall
17 provide a report based upon that review to the Governor and to
18 the General Assembly. The report may contain recommendations to
19 add other toxic substances contained in packaging to the list
20 set forth in this act in order to further reduce the toxicity of
21 packaging waste and shall contain a recommendation whether to
22 continue the recycling exemption as it is provided for in
23 section 302(3), and a description of the nature of the
24 substitutes used in lieu of lead, mercury, cadmium and
25 hexavalent chromium.
26 Section 1102. Repeals.
27 All acts and parts of acts are repealed insofar as they are
28 inconsistent with this act.
29 Section 1103. Effective date.
30 This act shall take effect in 60 days.
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