Bill Text: NY S01185 | 2021-2022 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Establishes the extended producer responsibility act requiring covered materials and product producers to develop and implement strategies to promote recycling, reuse and recovery of packaging and paper products.
Spectrum: Partisan Bill (Democrat 39-2)
Status: (Introduced - Dead) 2022-04-25 - REPORTED AND COMMITTED TO FINANCE [S01185 Detail]
Download: New_York-2021-S01185-Amended.html
Bill Title: Establishes the extended producer responsibility act requiring covered materials and product producers to develop and implement strategies to promote recycling, reuse and recovery of packaging and paper products.
Spectrum: Partisan Bill (Democrat 39-2)
Status: (Introduced - Dead) 2022-04-25 - REPORTED AND COMMITTED TO FINANCE [S01185 Detail]
Download: New_York-2021-S01185-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1185--B Cal. No. 240 2021-2022 Regular Sessions IN SENATE January 8, 2021 ___________ Introduced by Sens. KAMINSKY, HINCHEY, ADDABBO, BIAGGI, BRISPORT, BROUK, COMRIE, GAUGHRAN, GOUNARDES, HARCKHAM, HOYLMAN, JACKSON, KAPLAN, KAVANAGH, KRUEGER, LIU, MAY, MAYER, MYRIE, RAMOS, REICHLIN-MELNICK, SEPULVEDA, SERRANO, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the environmental conservation law, in relation to establishing the extended producer responsibility act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The legislature finds the amount of 2 waste generated in New York is a threat to the environment. The legisla- 3 ture further finds and declares that it is in the public interest of the 4 state of New York for covered material and product producers to under- 5 take the responsibility for the development and implementation of strat- 6 egies to promote reduction, reuse, recovery, and recycling of covered 7 materials and products through investments in the end-of-product-life 8 management of products, printed paper, and product packaging. 9 § 2. Article 27 of the environmental conservation law is amended by 10 adding a new title 33 to read as follows: 11 TITLE 33 12 EXTENDED PRODUCER RESPONSIBILITY ACT 13 Section 27-3301. Definitions. 14 27-3303. Producer Responsibility advisory board. 15 27-3305. Producer responsibilities. 16 27-3307. Funding mechanism. 17 27-3309. Producer responsibility plan and needs assessment. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01205-07-1S. 1185--B 2 1 27-3311. Producer responsibility plan approval. 2 27-3313. Collection and convenience. 3 27-3315. Outreach and education. 4 27-3317. Reporting requirements and audits. 5 27-3319. Antitrust protections. 6 27-3321. Penalties. 7 27-3323. State preemption. 8 27-3325. Authority to promulgate rules and regulations. 9 27-3327. Other assistance programs. 10 27-3329. Severability. 11 § 27-3301. Definitions. 12 As used in this title: 13 1. "Covered materials and products" shall mean any part of a package 14 or container, regardless of recyclability, that includes material that 15 is used for the containment, protection, handling, delivery, and presen- 16 tation of goods that are sold, offered for sale, or distributed to 17 consumers, via retail commerce, in the state, including through an 18 internet transaction. Covered materials and products include, but are 19 not limited to, the following classes of materials: 20 (a) Containers and packaging: this class includes all flexible, foam, 21 or rigid material, including but not limited to paper, carton, plastic, 22 glass, or metal, and any combination of such materials that: 23 (i) is intended to contain, protect, wrap, present, or deliver 24 products from the responsible party to the ultimate user or consumer, 25 including tertiary packaging used for transportation or distribution 26 directly to a consumer; 27 (ii) is intended for single or short-term use and designed to contain, 28 protect or wrap products, including secondary packaging intended for the 29 consumer market; or 30 (iii) does not include packaging used for the long-term protection or 31 storage of a product or with a life of not less than five years. 32 (b) Paper products: this class includes: 33 (i) paper and other cellulosic fibers, whether or not they are used as 34 a medium for text or images and materials in the newspapers class of 35 materials; 36 (ii) containers or packaging used to deliver printed matter directly 37 to the ultimate consumer or recipient; 38 (iii) paper of any description, including but not limited to: 39 (1) flyers; 40 (2) brochures; 41 (3) booklets; 42 (4) catalogs; 43 (5) telephone directories; 44 (6) newspapers; 45 (7) magazines; 46 (8) paper fiber; and 47 (9) paper used for writing or any other purpose. 48 (c) Plastics: this class includes plastic products as determined by 49 the department that frequent the residential waste stream or are plastic 50 products that have the effect of severely disrupting recycling proc- 51 esses, including, but not limited to, single use plastic items such as 52 straws, utensils, cups, plates, and plastic bags. 53 (d) For the purpose of this title, the products covered designation 54 does not include the following: 55 (i) covered materials or products that could become unsafe or unsani- 56 tary to recycle by virtue of their anticipated use;S. 1185--B 3 1 (ii) literary, text, and reference bound books; 2 (iii) beverage containers as defined in section 27-1003 of this arti- 3 cle on which a deposit is required to be initiated; 4 (iv) architectural paint containers collected and managed pursuant to 5 title twenty of this article; 6 (v) medical devices and covered materials and products regulated as a 7 drug, medical device or dietary supplement by the U.S. Food and Drug 8 Administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 9 321 et seq., sec. 3.2(e) of 21 U.S. Code of Federal Regulations or the 10 Dietary Supplement Health and Education Act; 11 (vi) Covered materials used to contain toxic or hazardous materials, 12 or regulated by the federal insecticide, fungicide, and rodenticide act, 13 7 U.S.C. SEC.136 ET SEQ. or other applicable federal law, rule or regu- 14 lation. 15 2. "Curbside recycling" means a recycling program that serves residen- 16 tial units, or schools, state or local agencies, or institutions where 17 such schools, state or local agencies, or institutions were served by a 18 municipality or a private sector hauler as of the effective date of this 19 title, and such recycling program is operated by a municipality or 20 pursuant to a contract with the municipality, private sector hauler, or 21 other public agency or through approved local solid waste management 22 plans. 23 3. "Post-consumer material" means only those covered products or mate- 24 rials generated by a business or consumer which have served their 25 intended end use as consumer items and which have been separated or 26 diverted from the waste stream for the purposes of collection and recy- 27 cling as a secondary material feedstock, but shall not include waste 28 material generated during or after the completion of a manufacturing or 29 converting process. 30 4. "Post-consumer recycled content" means the content of a product 31 made from post-consumer recycled materials or feedstock. 32 5. "Producer" means, in descending order of priority for assigning 33 responsibility to meet the requirements of this title: (a) the person 34 who manufactures the covered material or product under such person's own 35 name or brand and who sells or offers for sale the covered material or 36 product in the state; 37 (b) if paragraph (a) of this subdivision does not apply, the person 38 or company who imports the covered material or product as the owner or 39 licensee of a trademark or brand under which the covered material or 40 product is sold or distributed in the state; 41 (c) if paragraphs (a) and (b) of this subdivision do not apply, the 42 person or company that offers for sale, sells, or distributes the 43 covered material or product in the state. 44 A producer shall not include a municipality or a local government 45 planning unit, or a registered 501(c)(3) charitable organization or 46 501(c)(4) social welfare organization. 47 6. "Producer responsibility organization" means a not-for-profit 48 organization designated by a group of producers to act as an agent on 49 behalf of each producer to develop and implement a producer responsibil- 50 ity plan, or a registered 501(c)(3) charitable organization. To the 51 extent applicable, a producer responsibility organization shall have a 52 governing board that represents the diversity of producers and the 53 covered materials and product types and such board shall include non- 54 voting members representing a diversity of material trade associations. 55 7. "Readily-recyclable" means covered materials or products included 56 in the minimum recyclables list pursuant to subdivision 5 of sectionS. 1185--B 4 1 27-3313 of this title. Readily-recyclable does not include materials 2 that contain toxic substances, as defined in this title. 3 8. "Recovery" means the diversion of covered materials or products 4 that might be disposed of or become waste. 5 9. "Recovery rate" means the amount of covered materials or products 6 recovered over a program year divided by the amount of product produced, 7 expressed as a percentage. 8 10. "Recycling" means reprocessing, by means of a manufacturing proc- 9 ess, of a used material into a product, a component incorporated into a 10 product, or a secondary (recycled) raw material. "Recycling", for 11 purposes of this title, does not include energy recovery or energy 12 generation by means of combustion, use as a fuel, or landfill disposal 13 of discarded covered materials or products or discarded product compo- 14 nent materials or chemical conversion processes, as determined by the 15 department. 16 11. "Recycling rate" means the percentage of discarded covered materi- 17 als or products that is managed through recycling or reuse, as defined 18 by this title, and is computed by dividing the amount of discarded 19 covered products recycled or reused by the total amount of discarded 20 covered products collected over a program year. 21 12. "Reuse" means selling a discarded covered product back into the 22 market for its original intended use, when the discarded covered product 23 retains its original performance characteristics and can be used for its 24 original purpose or covered materials or products that are intended to 25 be refilled for the same or similar purpose by the producer. 26 13. "Retailer" means a person who sells or offers for sale a product 27 to a consumer, including sales made through an internet transaction to 28 be delivered to a consumer in the state. 29 14. "Toxic substance" means a chemical or chemical class of concern 30 identified by a state agency, federal agency, international intergovern- 31 mental agency, accredited research university, or other scientific 32 evidence. The department may reference existing toxic or hazardous 33 substances lists it creates or those created by other state agencies, 34 the Interstate Chemicals Clearinghouse, or chemicals classified by the 35 European Union as carcinogens, mutagens, or reproductive toxicants 36 pursuant to Category 1A or 1B in Annex VI to Regulation (EC) 1272/2008 37 in the promulgation of a toxic substance list. 38 § 27-3303. Producer responsibility advisory board. 39 1. There is hereby established within the department a producer 40 responsibility advisory board, hereinafter the advisory board, to 41 receive and review the producer responsibility plans required under this 42 title and to make recommendations to the department regarding the plan's 43 approval. 44 2. (a) The advisory board shall be composed of an odd number of 45 members and the commissioner shall appoint at least one member from each 46 of the following: a municipality association or municipal recycling 47 program, including an additional municipal representative from cities 48 with a population of one million or more residents; a statewide environ- 49 mental organization; a representative of environmental justice communi- 50 ties or organizations; a statewide waste disposal association; a materi- 51 als recovery facility located within the state of New York; a recycling 52 collection provider; a manufacturer of packaging materials utilizing 53 post-consumer recycled content; a manufacturer of paper materials 54 utilizing post-consumer recycled content; a consumer advocate; and a 55 retailer.S. 1185--B 5 1 (b) The member representing the producer or producer responsibility 2 organization shall be a non-voting member. 3 (c) Appointments to the advisory board shall be made no later than six 4 months after the effective date of this title. 5 3. The advisory board shall meet at least once a year by the call of 6 the chair or by request of more than half the voting members. 7 4. (a) Each producer responsibility plan prepared by a producer or 8 producer responsibility organization pursuant to this title shall be 9 submitted to the advisory board, which shall consider whether the plan 10 meets the criteria and objectives of this title. 11 (b) The advisory board shall, within ninety days of the submission of 12 the producer responsibility plan, either: (i) forward the plan to the 13 commissioner with its recommendation for approval; or (ii) forward the 14 plan to the commissioner with its disapproval and stated reasons there- 15 for, including any recommended changes to the plan necessary for 16 approval. 17 (c) A producer responsibility organization may resubmit a producer 18 responsibility plan for approval at any time. Upon such resubmission, 19 the advisory board shall, within ninety days, forward the plan to the 20 commissioner with its recommendation for approval or disapproval. 21 5. The advisory board shall review the submitted annual reports and 22 make such recommendations to the department and the producer responsi- 23 bility organization for improving the plan. 24 6. The decisions of the advisory board shall be by vote of the majori- 25 ty of its membership. 26 § 27-3305. Producer responsibilities. 27 1. Within four years after the effective date of this title, no 28 producer shall sell, offer for sale, or distribute covered materials or 29 products for use in New York unless the producer, or a producer respon- 30 sibility organization acting as their designated agent, has a producer 31 responsibility plan approved by the department, upon the recommendation 32 of the advisory board. Producers may satisfy participation obligations 33 individually or jointly with other producers or through a producer 34 responsibility organization. 35 2. Producers or a producer responsibility organization shall meet 36 jointly with the advisory board at least annually. 37 3. The producer, or a producer responsibility organization shall be 38 responsible for producers' compliance with the requirements of this 39 title, including the preparation and implementation of a producer 40 responsibility plan, the preparation and submission of annual audits, 41 and the annual reports to the department. 42 4. Within the first four years after the department approves a produc- 43 er responsibility plan, producers shall be required to report, on an 44 annual basis, progress reports describing in detail progress towards 45 meeting or exceeding the recovery, recycling, and post-consumer recycled 46 content rates by material type. Such progress reports shall also include 47 an evaluation of whether they are on target to meet the approved recov- 48 ery, recycling, and post-consumer recycled content rates by material 49 type. If a producer or producer responsibility organization is not on 50 target to meet the required rates, the department, in consultation with 51 the advisory board, shall either require an approved producer responsi- 52 bility plan to be amended or require the producer to implement addi- 53 tional measures. Within five years after the department approves the 54 producer responsibility plan, producers shall be required to meet the 55 minimum recovery, recycling and post-consumer recycled material content 56 rate for a covered material or product as approved by the department inS. 1185--B 6 1 the producer responsibility plan or face penalties pursuant to section 2 27-3321 of this title. 3 5. A producer shall be exempt from the requirements of this title if 4 the producer: 5 (a) Generates less than one million dollars in annual revenues; 6 (b) Generates less than one ton of covered materials or products 7 supplied to New York state residents per year; or 8 (c) Operates as a single point of retail sale and is not supplied or 9 operated as part of a franchise. 10 6. Retailers that are not producers are exempt from the requirements 11 of this title. 12 7. Producers may comply individually or may form a producer responsi- 13 bility organization and discharge their responsibilities to such organ- 14 ization. 15 8. The department shall establish regulations to allow voluntary 16 agreements to be made between responsible parties to permit a responsi- 17 ble party to convey a different order of responsibility than defined in 18 subdivision 4 of section 27-3301 of this title as long as both parties 19 agree to the change in the hierarchy of responsibility. 20 § 27-3307. Funding mechanism. 21 1. A producer or producer responsibility organization acting as their 22 agent shall establish program participation charges for producers 23 through the producer responsibility plan pursuant to section 27-3309 of 24 this title which shall be sufficient to ensure the obligations of the 25 statewide needs assessment and the producer responsibility plan are met. 26 Provided, however, that covered materials in the newspaper or magazine 27 class may satisfy their obligations hereunder by providing advertisement 28 or publication in their newspapers, magazines, and/or on their websites 29 in lieu of program participation charges so long as the value of the 30 advertisement is equivalent to the financial obligations required under 31 an approved producer responsibility plan. 32 2. A producer responsibility organization shall structure program 33 charges to provide producers with financial incentives, to reward waste 34 and source reduction and recycling compatibility innovations and prac- 35 tices, and to disincentivize designs or practices that increase costs of 36 managing the products or which contain toxic substances. The producer 37 responsibility organization may adjust charges to be paid by participat- 38 ing producers based on factors that affect system costs. At a minimum, 39 charges shall be variable based on: 40 (a) Costs to provide curbside collection or other level of residential 41 service that is, at minimum, as convenient as curbside collection or as 42 convenient as the previous recycling collection plan in the particular 43 jurisdiction or as convenient as the previous refuse collection plan in 44 the particular jurisdiction should recycling collection not be provided; 45 (b) Costs to process a producer's covered materials or products for 46 acceptance by secondary material markets; 47 (c) Whether the covered material or product would typically be readi- 48 ly-recyclable except that as a consequence of the product's design, the 49 product has the effect of disrupting recycling processes or the product 50 includes labels, inks, and adhesives containing heavy metals or other 51 toxic substances as defined by the department in regulations that would 52 contaminate the recycling process; 53 (d) Whether the covered materials or product is specifically designed 54 to be reusable or refillable and has high reuse or refill rate; 55 (e) the commodity value of a covered material or product.S. 1185--B 7 1 3. The charges shall be adjusted, or the producers may be provided a 2 credit, based upon the percentage of post-consumer recycled material 3 content and such percentage of post-consumer recycled content shall be 4 verified by the producer responsibility organization or through an inde- 5 pendent third party approved to perform verification services to ensure 6 that such percentage exceeds the minimum requirements in the covered 7 material, as long as the recycled content does not disrupt the potential 8 for future recycling. 9 4. In addition to the annual schedule of fees approved in the producer 10 responsibility plan, the producer responsibility organization fee sched- 11 ule may include a special assessment on specific categories of covered 12 materials or products at the request of responsible entities represent- 13 ing and approved by the advisory board if the nature of the covered 14 material or product imposes unusual costs in collection or processing or 15 requires special actions to address effective access to recycling or 16 successful processing in municipal recycling facilities. The revenue 17 from the special assessment shall be used to make system improvements 18 for the specific covered materials or products on which the special 19 assessment was applied. 20 5. A producer responsibility organization shall be responsible for 21 calculating and dispersing funding at a reasonable recycling program 22 funding rate, as approved by the department, and such reasonable rate 23 may be varied based on population density rates, for municipal services 24 utilized by a producer responsibility organization if the municipality 25 elects to be compensated by the producer responsibility organization in 26 the recovery, recycling, and processing of covered materials and 27 products, whether such services are provided directly by the munici- 28 pality or through a contracted service provider. If a municipality does 29 not elect to provide service, the producer responsibility organization 30 shall be responsible for contracting with a private entity for services 31 and shall be responsible for calculating and disbursing funding at a 32 reasonable recycling program rate for collection, recycling, recovery, 33 and processing services provided by the private sector entity contracted 34 to provide such services. The program funding mechanism shall be based 35 on the cost of residential curbside collection, including the cost of 36 curbside containers where relevant, as well as processing cost for each 37 readily-recyclable material, cost of handling non-readily recyclable 38 material types collected as part of a recycling operation, transporta- 39 tion cost of recycling for each material type, and any other cost 40 factors as determined by the department. To facilitate the producer 41 responsibility organization's determination of the cost of recycling, 42 participating municipalities and private sector haulers contracting with 43 producer responsibility organizations shall report data related to their 44 costs and the value of materials to the producer responsibility organ- 45 ization. Cost calculations shall take into consideration revenue gener- 46 ated from recyclable materials. 47 6. Any funds directly collected pursuant to this title shall not be 48 used to carry out lobbying activities on behalf of the producer respon- 49 sibility organization. 50 7. No retailer may charge a point-of-sale or other fee to consumers to 51 facilitate a producer to recoup the costs associated with meeting the 52 obligations under this title. 53 8. Nothing in this title shall require a municipality to participate 54 in a producer responsibility program.S. 1185--B 8 1 9. The department shall make such rules and regulations which may be 2 necessary for a producer responsibility organization to develop and 3 manage a funding mechanism. 4 § 27-3309. Producer responsibility plan and needs assessment. 5 1. A statewide needs assessment shall be conducted prior to the 6 approval of a producer responsibility plan. The statewide needs assess- 7 ment shall be funded by the producers or producer responsibility organ- 8 ization, and shall be conducted by an independent third party approved 9 by the department and shall include an evaluation of the capacity, 10 costs, gaps, and needs for the following factors: 11 (a) Current funding needs impacting recycling access and availability; 12 (b) Existing state statutory provisions and funding sources for recy- 13 cling, reuse, reduction, and recovery; 14 (c) The collection and hauling system for recyclable materials in the 15 state; 16 (d) The processing capacity and infrastructure for recyclable materi- 17 als in the state and regionally and identifying necessary capital 18 investments to existing and future reuse and recycling infrastructure; 19 (e) The market conditions and opportunities for recyclable materials 20 in the state and regionally; 21 (f) Consumer education needs for recycling, reuse, and reduction of 22 covered materials and products. 23 2. Producers, or a producer responsibility organization acting as 24 their designated agent, shall develop and submit a producer responsibil- 25 ity plan to the advisory board. Such plan shall cover five years and 26 shall be reviewed by the advisory board and updated every five years 27 following the approval of the original plan. The department shall have 28 the discretion to require the plan to be reviewed or revised prior to 29 the five year period if the department has cause to believe the minimum 30 post-consumer recycled material content rates, minimum recovery or recy- 31 cling rates, or other factors of the plan are not being met or followed 32 by the producer, or producer responsibility organization, or if there 33 has been a change in circumstances that warrants revision of the plan. 34 The advisory board shall also have the discretion to recommend revision 35 of the plan to the department. The submitted plan shall include, but not 36 be limited to: 37 (a) contact information of the producer responsibility organization 38 and the producer or producers covered under the plan; 39 (b) a description of how comments of stakeholders were considered and, 40 if applicable, addressed in the development of the plan; 41 (c) a comprehensive list of the covered materials or products for 42 which the producer or producer responsibility organization is responsi- 43 ble for, which shall be included in the minimum recyclable lists pursu- 44 ant to section 27-3313 of this title; 45 (d) a funding mechanism that allocates the costs to the producers to 46 meet the requirements of this title and is sufficient to cover the cost 47 of registering, operating and updating the plan, and maintaining a 48 financial reserve sufficient to operate the program in a fiscally 49 prudent and responsible manner; 50 (e) a strategic capital investment plan and a mechanism to disperse 51 funds for existing and future infrastructure; 52 (f) a description of the process for participating municipalities to 53 recoup reasonable costs, both operational and capital, from the producer 54 or producer responsibility organization, including, as applicable, any 55 administrative, sorting, collection, transportation, public education, 56 or processing costs, if the producer responsibility organization usesS. 1185--B 9 1 existing services through a municipality or obtains such services from a 2 private sector hauler; 3 (g) a detailed description of how the producer or the producer respon- 4 sibility organization, consulted with the advisory board in the develop- 5 ment of the plan prior to its submission to the department, and to what 6 extent the producers or the producer responsibility organization specif- 7 ically incorporated the advisory board's input into the plan. Producers 8 or the producer responsibility organization shall also provide the advi- 9 sory board an opportunity to review and comment upon the draft plan 10 prior to its submission to the department. Producers or the producer 11 responsibility organization shall make an assessment of comments 12 received and shall provide a summary and an analysis of the issues 13 raised by the advisory board and significant changes suggested by any 14 such comments, a statement of the reasons why any significant changes 15 were not incorporated into the plan, and a description of any changes 16 made to the plan as a result of such comments; 17 (h) a proposed minimum post-consumer recycled material content rate 18 requirement, minimum recovery, and minimum recycling rate for covered 19 materials and products. The minimum rates shall be varied for each 20 covered recycled material and shall include paper products, glass, 21 metal, and plastic; 22 (i) a description of a public education program pursuant to section 23 27-3313 of this title; 24 (j) how the producers, or the producer responsibility organization, 25 will work with existing waste haulers, material recovery facilities, 26 recyclers, and municipalities to operate or expand current collection 27 programs to address material collection methods; 28 (k) a description of how producers or the producer responsibility 29 organization will use open, competitive, and fair procurement practices 30 should they directly enter into contractual agreements with service 31 providers, including municipalities and private entities; 32 (l) a description of how a municipality will participate, on a volun- 33 tary basis, with collection and how existing municipal recycling proc- 34 essing and collection infrastructure will be used; 35 (m) a description of how the producer, or producer responsibility 36 organization, plans to meet the convenience requirements set forth in 37 this title; 38 (n) a description of how the producer, or producer responsibility 39 organization, will meet or exceed the minimum rates required under this 40 title for covered materials or product; 41 (o) a description of the process for end-of-life management, including 42 recycling and disposal of residuals collected for recycling, using envi- 43 ronmentally sound management practices; 44 (p) a description of how the producer responsibility organization 45 shall provide the option to purchase recycled materials from processors 46 on behalf of producer members interested in obtaining recycled feedstock 47 in order to achieve post-consumer recycled content objectives; 48 (q) a description of how a producer responsibility organization will 49 work with producers to reduce packaging through product design, systems 50 for reusable packaging, and program innovations; 51 (r) a description of how a producer responsibility organization will 52 invest in existing and future reuse and recycling infrastructure and 53 market development in the state, including, but not limited to, install- 54 ing or upgrading equipment to improve sorting of covered materials and 55 products or mitigating the impacts of covered materials and products toS. 1185--B 10 1 other commodities at existing sorting and processing facilities, and 2 capital expenditures for new technology, equipment, and facilities; 3 (s) a process to address concerns and questions from customers and 4 residents; and 5 (t) any other information as specified by the department through regu- 6 lations. 7 3. The department shall promulgate a registration fee schedule to 8 cover administrative costs, including a schedule for re-evaluating the 9 fee structure on an annual basis and shall consider if fees should be 10 adjusted to incentivize performance. Such fees collected by the depart- 11 ment shall only be used for the implementation, operation, and enforce- 12 ment of this title, including approved costs associated with the advi- 13 sory board. 14 § 27-3311. Producer responsibility plan approval. 15 1. Before rejection or approval of a producer responsibility plan can 16 be made in accordance with this title, the producer or producer respon- 17 sibility organization shall submit the plan to the producer responsibil- 18 ity advisory board. 19 2. Within sixty days of the advisory board making a recommendation to 20 the department, the department shall make a determination to approve the 21 plan as submitted; approve the plan with conditions; or deny the plan, 22 with reasons for the denial. The advisory board in recommending, and the 23 department in approving a plan, shall consider the following in whether 24 to approve a plan: 25 (a) the plan adequately addresses all elements described in section 26 27-3309 of this title with sufficient detail to demonstrate that the 27 objective of the plan will be met; 28 (b) the producer has undertaken satisfactory consultation with the 29 advisory board, has provided an opportunity for the advisory board's 30 input in the implementation and operation of the plan prior to 31 submission of the plan, and has thoroughly described how the the advi- 32 sory board's input will be addressed by and incorporated into the plan 33 pursuant to paragraph (g) of subdivision 2 of section 27-3309 of this 34 title; 35 (c) the plan adequately provides for: (i) the producer collecting and 36 funding the costs of collecting and processing products covered by the 37 plan or reimbursing a municipality; (ii) the funding mechanism to cover 38 the entire cost of the program; (iii) convenient and free consumer 39 access to collection facilities or collection services; (iv) a formulaic 40 system for equitable distribution of funds; (v) comprehensive public 41 education and outreach; and (vi) an evaluation system for the fee struc- 42 ture, which shall be evaluated on an annual basis by the producer 43 responsibility organization and re-submitted to the department annually; 44 (d) the plan takes into consideration a post-consumer content rate and 45 recovery and recycling rates that will create or enhance markets for 46 recycled materials, there is a plan to adjust the minimum rates on an 47 annual basis, and the plan incentives waste prevention and reduction. 48 Such post-consumer content rates, and such adjustments to the rates, 49 shall take into consideration: (i) changes in market conditions, 50 including supply and demand for post-consumer recycled plastics, recov- 51 ery rates, and bale availability both domestically and globally; (ii) 52 recycling rates; (iii) the availability of recycled materials suitable 53 to meet the minimum recycled content goals, including the availability 54 of high-quality recycled materials, and food-grade recycled materials; 55 (iv) the capacity of recycling or processing infrastructure; (v) utili-S. 1185--B 11 1 zation rates of the material; and (vi) the progress made by producers in 2 meeting the post-consumer recycled targets by material type; 3 (e) the plan creates a convenient system for consumers to recycle that 4 is, at minimum, as convenient as curbside collection or as convenient as 5 the previous waste collection schema in the particular jurisdiction; 6 (f) the plan adequately considers the state's solid waste management 7 policy set forth in section 27-0106 of this article; 8 (g) The department may establish additional plan requirements in addi- 9 tion to those identified herein to fulfill the intent of this title; 10 provided, however, that any additional requirements shall be established 11 one year prior to a required submission of a plan unless such additional 12 requirements are in relation to the power granted to the department in 13 subdivision 4 of section 27-3305 of this title. 14 3. No later than six months after the date the plan is approved, the 15 producer, or producer responsibility organization, shall implement the 16 approved plan. The department may rescind the approval of an approved 17 plan at any time with cause and documented justification. 18 § 27-3313. Collection and convenience. 19 A producer or producer responsibility organization shall provide for 20 widespread, convenient, and equitable access to collection opportunities 21 for the covered materials and products identified under the producer or 22 producer responsibility organization's plan at no additional cost to 23 residents. Such opportunities shall be provided to all residents of New 24 York in a manner that is as convenient as the collection of municipal 25 solid waste. A producer responsibility organization shall ensure 26 services continue for curbside recycling programs that a municipality 27 serves as of the effective date of this article, either directly or 28 through a contract to provide services, and that such services are 29 continued through the plan. A producer responsibility plan may not 30 restrict a jurisdiction's resident's ability to contract directly with 31 third parties to obtain recycling collection services if residents have 32 the option to enter into such contracts as of the effective date of this 33 title, as long as the resident still voluntarily chooses to contract 34 directly with the third party. A producer responsibility organization 35 may rely on a range of means to collect various categories of covered 36 materials or products including, but not limited to, curbside 37 collection, depot drop-off, and retailer take-back so long as covered 38 materials and products collection options include curbside recycling 39 collection services provided by municipal programs, municipal contracted 40 programs, solid waste collection companies, or other approved entities 41 as identified by the department if: 42 1. The category of covered materials and products is suitable for 43 residential curbside recycling collection and can be effectively sorted 44 by the facilities receiving the curbside collected material; 45 2. The recycling facility providing processing and sorting service 46 agrees to include the category of covered materials and products as an 47 accepted material; 48 3. The covered materials and products category is not handled through 49 a deposit and return scheme or buy back system that relies on a 50 collection system other than curbside or multi-family collection; and 51 4. The provider of the residential curbside recycling service agrees 52 to the producer responsibility organization service provider costs 53 arrangement. 54 5. (a) The producer or producer responsibility organization shall 55 adopt a list of minimum types of readily recyclable materials and 56 products based on available collection and processing infrastructure andS. 1185--B 12 1 recycling markets for covered materials and products. The producer or 2 producer responsibility organization shall update and adopt the list on 3 an annual basis, in consultation with the advisory board, in response to 4 collection and processing improvements and changes in recycling end 5 markets. If there are multiple lists, the department shall compile the 6 lists and shall publish a compiled list to the public. Such lists may 7 vary by geographic region depending on regional markets and regional 8 collection and processing infrastructure. 9 (b) All municipalities or private recycling service providers shall 10 provide for the collection and recycling of all identified materials and 11 products contained on the list of minimum recyclables, based on 12 geographic regions, in order to be eligible for reimbursement; provided, 13 however, nothing shall penalize a municipality or private recycling 14 service for recovering and recycling materials that are generated in the 15 municipality or geographic region that are not included on the list of 16 minimum types of recyclable covered materials or products as long as it 17 can be demonstrated that such materials have a market. Reimbursement 18 shall cover recycling of all covered materials and products so long as 19 the program includes at least the minimum recyclable list. 20 (c) The department may grant an exception of the requirements in para- 21 graph (b) of this subdivision upon a written showing by the municipality 22 or private recycling service that compliance with the requirement is not 23 practicable for a specific identified product or material and if the 24 department finds it is in the best interest of the intent of this title 25 to grant them an extension; provided, however, that the extension grant- 26 ed by the department shall not exceed twelve months. 27 § 27-3315. Outreach and education. 28 1. The producer, or producer responsibility organization, shall 29 provide effective outreach, education, and communications to consumers 30 throughout New York state regarding: 31 (a) proper end-of-life management of covered products and materials; 32 (b) the location and availability of curbside recycling and additional 33 drop-off collection opportunities; 34 (c) how to prevent litter of covered materials and products in the 35 process of collection; and 36 (d) recycling instructions that are: consistent statewide, except as 37 necessary to take into account differences among local laws and process- 38 ing capabilities; easy to understand; and easily accessible. 39 2. The outreach and education required pursuant to subdivision 1 of 40 this section shall: 41 (a) be designed to achieve the management goals of covered products 42 under this title, including the prevention of contamination of covered 43 products; 44 (b) incorporate, at a minimum, electronic, print, web-based, and 45 social media elements that municipalities could utilize at their 46 discretion; 47 (c) be coordinated across programs to avoid confusion for consumers; 48 (d) include, at a minimum: consulting on education, outreach, and 49 communications with local governments and other stakeholders; coordinat- 50 ing with and assisting local municipal programs, municipal contracted 51 programs, solid waste collection companies, and other entities providing 52 services; and developing and providing outreach and education to the 53 diverse ethnic populations in the state; and 54 (e) a plan to work with participating producers to label covered 55 products, in accordance with reasonable labeling standards, with infor-S. 1185--B 13 1 mation to assist consumers in responsibly managing and recycling covered 2 materials and products. 3 3. The producer or producer responsibility organization shall consult 4 with municipalities on the development of educational materials and may 5 coordinate with municipalities on outreach and communication. 6 4. The department shall determine the effectiveness of outreach and 7 education efforts under this section to determine whether changes are 8 necessary to improve those outreach and education efforts and develop 9 information that may be used to improve outreach and education efforts 10 under this section. 11 5. The producer responsibility organization shall undertake outreach, 12 education, and communications that assist in attaining or exceeding the 13 recovery and recycling rates. 14 § 27-3317. Reporting requirements and audits. 15 1. One year after a producer or producer responsibility organization's 16 first plan is approved, and annually thereafter, each producer, or 17 producer responsibility organization acting as their designated agent, 18 shall submit a report to the department that details the performance for 19 the prior year's program. The report shall be posted on the department's 20 website and on the website of the producer, or producer responsibility 21 organization acting as their designated agent. Such annual report shall 22 include: 23 (a) a detailed description of the methods used to collect, transport 24 and process covered materials and products including detailing 25 collection methods made available to consumers and an evaluation of the 26 program's collection convenience; 27 (b) a description of the status of achieving the recovery and recycl- 28 ing rates as set forth in the plan pursuant to this title and what 29 efforts are proposed in the event of failing to achieve such rates; 30 (c) a description on the status of achieving the post-consumer recy- 31 cled content rates as set forth in the plan pursuant to this title, and 32 what efforts are proposed in the event of failing to achieve such rates; 33 (d) the amount of covered materials and products collected in the 34 state by material type; 35 (e) the amount and type of covered materials and products collected in 36 the state by the method of disposition by material type; 37 (f) the total cost of implementing the program, as determined by an 38 independent financial audit, as performed by an independent auditor; 39 (g) information regarding the independently audited financial state- 40 ments detailing all payments received and issued by the producers 41 covered by the approved plan; 42 (h) a copy of the independent audit; 43 (i) a detailed description of whether the program compensates munici- 44 palities, solid waste collection, sorting and processing facilities, and 45 other approved entities for their recycling efforts and other related 46 services provided by the above entities; 47 (j) samples of all educational materials provided to consumers or 48 other entities; 49 (k) a detailed list of efforts undertaken and an evaluation of the 50 methods used to disseminate such materials including recommendations, if 51 any, for how the educational component of the program can be improved; 52 and 53 (1) A detailed description of investments made in reuse and recycling 54 infrastructure and market development. 55 2. The department shall not require public reporting of any confiden- 56 tial information that the department finds to be protected proprietaryS. 1185--B 14 1 information. For purposes of this title, protected proprietary informa- 2 tion shall mean information that, if made public, would divulge compet- 3 itive business information, methods or processes entitled to protection 4 as trade secrets of such producer or producer responsibility organiza- 5 tion or information that would reasonably hinder the producer or produc- 6 er responsibility organization's competitive advantage in the market- 7 place. 8 § 27-3319. Antitrust protections. 9 A producer or producer responsibility organization that organizes the 10 collection, transportation, and procession of covered materials and 11 products, in accordance with a producer responsibility plan approved 12 under this title, shall not be liable for any claim of a violation of 13 antitrust, restraint of trade, or unfair trade practice arising from 14 conduct undertaken in accordance with the program pursuant to this 15 title; provided, however, this section shall not apply to any agreement 16 establishing or affecting the price of a covered material, product, or 17 the output or production of any agreement restricting the geographic 18 area or customers to which a covered material or product will be sold. 19 § 27-3321. Penalties. 20 1. Except as otherwise provided in this section, any person or entity 21 that violates any provision of or fails to perform any duty imposed 22 pursuant to this title or any rule or regulation promulgated pursuant 23 thereto, or any term or condition of any registration or permit issued 24 pursuant thereto, or any final determination or order of the commission- 25 er made pursuant to this article or article 71 of this chapter shall be 26 liable for a civil penalty not to exceed five hundred dollars for each 27 violation and an additional penalty of not more than five hundred 28 dollars for each day during which such violation continues. 29 2. (a) Any producer or producer responsibility organization who 30 violates any provision of or fails to perform any duty imposed pursuant 31 to this title or any rule or regulation promulgated pursuant thereto, 32 including compliance with requirements related to the producer responsi- 33 bility plan, or any term or condition of any registration or permit 34 issued pursuant thereto, or any final determination or order of the 35 commissioner made pursuant to this article or article 71 of this chapter 36 shall be liable for a civil penalty not to exceed five thousand dollars 37 for each violation and an additional penalty of not more than one thou- 38 sand five hundred dollars for each day during which such violation 39 continues. For a second violation committed within twelve months of a 40 prior violation, the producer or producer responsibility organization 41 shall be liable for a civil penalty not to exceed ten thousand dollars 42 and an additional penalty of not more than three thousand dollars for 43 each day during which such violation continues. For a third or subse- 44 quent violation committed within twelve months of any prior violation, 45 the producer or producer responsibility organization shall be liable for 46 a civil penalty not to exceed twenty thousand dollars and an additional 47 penalty of six thousand dollars for each day during which such violation 48 continues. 49 (b) All producers participating in a producer responsibility organiza- 50 tion shall be jointly and severally liable for any penalties assessed 51 against the producer responsibility organization pursuant to this title 52 and article 71 of this chapter. 53 3. Civil penalties under this section shall be assessed by the depart- 54 ment after an opportunity to be heard pursuant to the provisions of 55 section 71-1709 of this chapter, or by the court in any action or 56 proceeding pursuant to section 71-2727 of this chapter, and in additionS. 1185--B 15 1 thereto, such person or entity may by similar process be enjoined from 2 continuing such violation and any permit, registration or other approval 3 issued by the department may be revoked or suspended or a pending 4 renewal denied. 5 4. The department and the attorney general are hereby authorized to 6 enforce the provisions of this title and all monies collected shall be 7 deposited to the credit of the environmental protection fund established 8 pursuant to section 92-s of the state finance law. 9 § 27-3323. State preemption. 10 Jurisdiction in all matters pertaining to costs and funding mechanisms 11 of producer responsibility organizations relating to the recovery of 12 covered materials by this title, vested exclusively in the state; 13 provided, however, that (i) nothing in this section shall preclude any 14 city, town, village or other local planning units, which already has in 15 place on the effective date of this title any local law, ordinance or 16 regulation governing a municipally-operated recycling program or 17 collection program operated on behalf of such municipality, from deter- 18 mining what materials shall be included for recycling in such municipal 19 recycling collection program, or shall preclude any such local law, 20 ordinance or regulation which provides environmental protection equal to 21 or greater than the provisions of this title or rules promulgated here- 22 under, and (ii) that nothing in this section shall preclude a person 23 from coordinating, for recycling or reuse, the collection of covered 24 materials and products. 25 § 27-3325. Authority to promulgate rules and regulations. 26 The commissioner shall have the power to promulgate rules and regu- 27 lations necessary and appropriate for the administration of this title. 28 § 27-3327. Other assistance programs. 29 Nothing in this title shall impact an entity's eligibility for any 30 state or local incentive or assistance program to which they are other- 31 wise eligible. 32 § 27-3329. Severability. 33 The provisions of this title shall be severable and if any phrase, 34 clause, sentence or provision of this title or the applicability thereof 35 to any person or circumstance shall be held invalid, the remainder of 36 this title and the application thereof shall not be affected thereby. 37 § 3. This act shall take effect on the one hundred eightieth day after 38 it shall have become a law.
