Bill Text: NY S07718 | 2019-2020 | General Assembly | Introduced
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 5-0)
Status: (Introduced - Dead) 2020-02-11 - REFERRED TO ENVIRONMENTAL CONSERVATION [S07718 Detail]
Download: New_York-2019-S07718-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7718 IN SENATE February 11, 2020 ___________ Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation 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 weight 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 recycling, reuse and recovery of covered material and 7 products through investments in the end-of-product-life management of 8 products. 9 § 2. Article 27 of the environmental conservation law is amended by 10 adding a new title 30 to read as follows: 11 TITLE 30 12 EXTENDED PRODUCER RESPONSIBILITY ACT 13 Section 27-3001. Definitions. 14 27-3003. Producer responsibilities. 15 27-3005. Funding mechanism. 16 27-3007. Producer responsibility plan. 17 27-3009. Producer responsibility plan approval. 18 27-3011. Collection and convenience. 19 27-3013. Outreach and education. 20 27-3015. Reporting requirements and audits. 21 27-3017. Antitrust protections. 22 27-3019. Penalties. 23 27-3021. State preemption. 24 27-3023. Authority to promulgate rules and regulations. 25 27-3025. Severability. 26 § 27-3001. Definitions. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14817-03-0S. 7718 2 1 1. "Activity-based costs" shall mean a method of distributing the cost 2 of a process among its component streams according to the share of the 3 total cost assumed as a result of the processing of that stream. 4 2. "Covered materials and products" shall mean any part of a package 5 or container, regardless of recyclability or compostability, that 6 includes material that is used for the containment, protection, handl- 7 ing, delivery, and presentation of goods that are sold, offered for 8 sale, or distributed to consumers in the state, including through an 9 internet transaction. Covered materials and products include, but are 10 not limited to, the following classes of materials: 11 (a) Containers and packaging: this class includes all flexible or 12 rigid material, including but not limited to paper, carton, plastic, 13 glass, or metal, and any combination of such materials that: 14 (i) is used to contain, protect, wrap or present products at any stage 15 in the movement of the product from the responsible party to the ulti- 16 mate user or consumer, including tertiary packaging used for transporta- 17 tion or distribution directly to a consumer; 18 (ii) is intended for a single or short-term use and designed to 19 contain, protect or wrap products, including secondary packaging 20 intended for the consumer market; or 21 (iii) does not include packaging used for the long-term protection or 22 storage of a product or with a life of not less than five years. 23 (b) Paper products: this class includes: 24 (i) paper and other cellulosic fibers, whether or not they are used as 25 a medium for text or images, except books and materials in the newspa- 26 pers class of materials; 27 (ii) containers or packaging used to deliver printed matter directly 28 to the ultimate consumer or recipient; 29 (iii) paper of any description, including but not limited to: 30 (1) flyers; 31 (2) brochures; 32 (3) booklets; 33 (4) catalogs; 34 (5) telephone directories; 35 (6) newspapers; 36 (7) magazines; 37 (8) paper fiber; and 38 (9) paper used for writing or any other purpose. 39 (c) Plastics: this class includes any plastic as determined by the 40 department including, but not limited to: 41 (i) rigid plastics: 42 (1) polyethylene terephthalate (PET); 43 (2) polyethylene (PE); 44 (3) polyvinyl chloride (PVC); 45 (4) polypropylene (PP); 46 (5) polystyrene (PS); 47 (6) poly coated fiber; 48 (7) multi-layered plastics; 49 (8) other (BPA, Compostable Plastics, Polycarbonate and LEXAN); 50 (ii) flexible plastics: 51 (1) polyethylene (PE); 52 (2) polyvinyl chloride (PVC); 53 (3) polypropylene (PP); 54 (4) poly coated fiber; 55 (5) multi-layered plastics; 56 (6) other (BPA, Compostable Plastics, Polycarbonate and LEXAN).S. 7718 3 1 (d) For the purpose of this title, the products covered designation 2 does not include the following: 3 (i) paper products that could become unsafe or unsanitary to recycle 4 by virtue of their anticipated use; 5 (ii) literary, text, and reference bound books; and 6 (iii) beverage containers as defined in section 27-1003 of this arti- 7 cle. 8 3. "Curbside recycling" means a recycling program that serves single 9 and multi-family residential units, schools, state or local agencies, or 10 institutions that is operated by a municipality pursuant to a contract 11 with the municipality, private entity, or other public agency or through 12 approved local solid waste management plans. 13 4. "Post-consumer recycled content" means the content of a product 14 made of recycled materials derived from post-consumer recycled materials 15 or feedstock. 16 5. "Producer" means: (a) the person who manufactures the covered mate- 17 rial or product under such person's own name or brand and who sells or 18 offers for sale the covered material or product in the state; or 19 (b) the person who imports the covered material or product as the 20 owner or licensee of a trademark or brand under which the covered mate- 21 rial or product is sold or distributed in the state; or 22 (c) the person or company that offers for sale, sells, or distributes 23 the covered material or product in the state. 24 A producer shall not include a municipality or a local government 25 planning unit. 26 6. "Producer responsibility organization" means a not-for-profit 27 organization designated by a group of producers to act as an agent on 28 behalf of each producer to develop and implement a producer responsibil- 29 ity plan. 30 7. "Readily-recyclable" means packaging that can be sorted by entities 31 processing recyclables from New York and for which, during the previous 32 two calendar years, there was a consistent market, meaning recyclers 33 were willing to pay for fully sorted material at the door of their 34 facilities in quantities equal to or in excess of material supply. This 35 does not include material types that recyclers accept in low quantities 36 or sort out of material during additional processing steps; if material 37 recyclers do not desire a full bale of a specific material type, that 38 material type is not readily recyclable. 39 8. "Recycling" means to separate, dismantle or process the materials, 40 components or commodities contained in covered products for the purpose 41 of preparing the materials, components or commodities for use or reuse 42 in new products or components. "Recycling" does not include energy 43 recovery or energy generation by means of combustion, or landfill 44 disposal of discarded covered products or discarded product component 45 materials. 46 9. "Recycling rate" means the percentage of discarded covered products 47 that is managed through recycling or reuse, as defined by this title, 48 and is computed by dividing the amount of discarded covered products 49 collected and recycled or reused by the total amount of discarded 50 covered products collected over a program year. 51 10. "Reuse" means donating or selling a discarded covered product back 52 into the market for its original intended use, when the discarded 53 covered product retains its original performance characteristics and can 54 be used for its original purpose.S. 7718 4 1 11. "Retailer" means a person who sells or offers for sale a product 2 to a consumer, including sales made through an internet transaction to 3 be delivered to a consumer in the state. 4 § 27-3003. Producer responsibilities. 5 1. Within three years after the effective date of this title, no 6 producer shall sell, offer for sale, or distribute covered materials or 7 products for use in New York unless the producer, or a producer respon- 8 sibility organization acting as their designated agent, has a producer 9 responsibility plan approved by the department. Producers may satisfy 10 participation obligations individually or jointly with other producers 11 or through a producer responsibility organization. 12 2. Within one year after the department approves a producer responsi- 13 bility plan, producers shall be required to meet the minimum post-con- 14 sumer recycled material content rate and minimum recycling rate for a 15 covered material or product as approved by the department in the produc- 16 er responsibility plan. 17 3. A producer shall be exempt from the requirements of this title if 18 the producer: 19 (a) Generates less than one million dollars in annual revenues; 20 (b) Generates less than one ton of covered materials or products 21 supplied to New York state residents per year; or 22 (c) Operates as a single point of retail sale and is not supplied or 23 operated as part of a franchise. 24 4. Retailers that are not producers are exempt from the requirements 25 of this title. 26 5. Producers may comply individually or may form a producer responsi- 27 bility organization and discharge their responsibilities to such organ- 28 ization. 29 § 27-3005. Funding mechanism. 30 1. A producer responsibility organization shall establish program 31 participation charges for producers through the producer responsibility 32 plan pursuant to section 27-3007 of this title which shall be sufficient 33 to cover all program costs. 34 2. A producer responsibility organization shall structure program 35 charges to provide producers with financial incentives, to reward waste 36 reduction and recycling compatibility innovations and practices, and to 37 discourage designs or practices that increase costs of managing the 38 products. The producer responsibility organization may adjust charges to 39 be paid by participating producers based on factors that affect system 40 costs. At a minimum, charges shall be variable based on: 41 (a) Costs to provide curbside collection or other level of consumer 42 service that is, at minimum, as convenient as curbside collection or as 43 convenient as the previous waste collection schema in the particular 44 jurisdiction; 45 (b) Costs to process a producer's covered materials or products for 46 sale to secondary material markets; 47 (c) Whether the covered material or product would typically be recycl- 48 able except that as a consequence of the product's design, the product 49 has the effect of disrupting recycling processes or the product includes 50 labels, inks, and adhesives containing heavy metals or other hazardous 51 waste as defined by the department in regulations that would contaminate 52 the recycling process; 53 (d) Whether the covered materials or product are nonfood contact 54 containers and other nonfood contact packaging that is specifically 55 designed to be reusable or refillable and has high reuse or refill rate.S. 7718 5 1 3. The charges shall be adjusted based upon the percentage of post- 2 consumer recycled material content and such percentage of post-consumer 3 recycled content shall be verified either by the producer responsibility 4 organization or by an independent party designated by the department to 5 ensure that such percentage exceeds the minimum requirements in the 6 covered material, as long as the recycled content does not disrupt the 7 potential for future recycling. 8 4. A producer responsibility organization shall be responsible for 9 calculating and dispersing activity-based costs for municipal services 10 utilized by a producer responsibility organization if the municipality 11 elects to be compensated by the producer responsibility organization in 12 the recovery, recycling, and processing of covered materials, whether 13 such services are provided directly by the municipality or through a 14 contracted service provider. The activity-based cost mechanism shall be 15 based on the cost of residential curbside collection, on-site processing 16 cost for each readily-recyclable material, cost of non-readily recycla- 17 ble material types, transportation cost of recycling for each material 18 type, and any other cost factors as determined by the department. To 19 facilitate the producer responsibility organization's determination of 20 the cost of recycling, participating municipalities shall report data 21 related to their costs and the value of materials to the producer 22 responsibility organization. Cost calculations shall take into consid- 23 eration revenue generated from recyclable materials. 24 5. The department shall make such rules and regulations which may be 25 necessary for a producer responsibility organization to develop and 26 manage a funding mechanism and activity-based costs. 27 § 27-3007. Producer responsibility plan. 28 1. Producers, or a producer responsibility organization acting as 29 their designated agent, shall develop and submit a producer responsibil- 30 ity plan to the department no later than one year after the effective 31 date of this title. Such plan shall be for five years and shall be 32 reviewed and updated every five years following the approval of the 33 original plan. The department shall have the discretion to require the 34 plan to be reviewed or revised prior to the five year period if the 35 department has cause to believe the minimum post-consumer recycled mate- 36 rial content rates, minimum recycling rates, or other factors of the 37 plan are not being met or followed by the producer, or producer respon- 38 sibility organization, or if there has been a change in circumstances 39 that warrants revision of the plan. The submitted plan shall include, 40 but not be limited to: 41 (a) contact information of the producer responsibility organization 42 and the producer or producers covered under the plan; 43 (b) a description of how comments of stakeholders were considered in 44 the development of the plan; 45 (c) the covered materials for which the producer or producer responsi- 46 bility organization is responsible for; 47 (d) a funding mechanism that allocates the costs to the producers to 48 meet the requirements of this title and is sufficient to cover the cost 49 of registering, operating and updating the plan, and maintaining a 50 financial reserve sufficient to operate the program in a fiscally 51 prudent and responsible manner; 52 (e) a description of the process for municipalities to recoup reason- 53 able costs from the producer responsibility organization for the activi- 54 ty-based costs, including, as applicable, any administrative, sorting, 55 collection, transportation, or processing costs, if the producer respon- 56 sibility organization uses existing services through a municipality;S. 7718 6 1 (f) a proposed minimum post-consumer recycled material content rate 2 requirement and minimum recycling rate for materials. The minimum recy- 3 cling rate shall be varied for each recycled material and shall include 4 paper products, glass, metal, and plastic; 5 (g) a description of a public education program pursuant to section 6 27-3013 of this title; 7 (h) how the producers, or the producer responsibility organization, 8 will work with existing waste haulers, material recovery facilities, 9 recyclers, and municipalities to operate or expand current collection 10 programs to address material collection methods; 11 (i) a description of how a municipality will participate, on a volun- 12 tary basis, with collection and how existing municipal waste collection 13 infrastructure will be used; 14 (j) a description of how the producer, or producer responsibility 15 organization, plans to meet the convenience requirements set forth in 16 this title; 17 (k) a description of how the producer, or producer responsibility 18 organization, will meet or exceed the minimum recycling rate for a prod- 19 uct; 20 (l) a description of the process for end-of-life management, including 21 recycling and disposal, using environmentally sound management prac- 22 tices; 23 (m) a description of how a producer responsibility organization will 24 work with producers to reduce packaging through product design and 25 program innovations; 26 (n) a process to address concerns and questions from customers and 27 consumers; and 28 (o) any other information as specified by the department through regu- 29 lations. 30 2. The department shall promulgate a registration fee schedule to 31 cover administrative costs, including a schedule for re-evaluating the 32 fee structure on an annual basis. 33 § 27-3009. Producer responsibility plan approval. 34 1. No later than ninety days after the submission of the producer 35 responsibility plan, the department shall make a determination to 36 approve the plan as submitted; approve the plan with conditions; or deny 37 the plan. The department shall consider the following in whether to 38 approve a plan: 39 (a) the plan adequately addresses all elements described in section 40 27-3007 of this title with sufficient detail to demonstrate that the 41 objective of the plan will be met; 42 (b) the producer has undertaken satisfactory consultation with stake- 43 holders and has provided an opportunity for stakeholder input in the 44 implementation and operation of the plan prior to submission of the 45 plan; 46 (c) the plan adequately provides for: (i) the producer collecting and 47 funding the costs of collecting and processing products covered by the 48 plan or reimbursing a municipality; (ii) the funding mechanism to cover 49 the entire cost of the program; (iii) convenient and free consumer 50 access to collection facilities or collection services; and (iv) an 51 evaluation system for the fee structure, which shall be evaluated on an 52 annual basis by the producer responsibility organization and re-submit- 53 ted to the department annually; 54 (d) the plan takes into consideration a post-consumer content rate and 55 recycling rate that will create or enhance markets for recycled materi- 56 als and there is a plan to adjust the minimum rates on an annual basis.S. 7718 7 1 Such rates shall take into consideration current state and federal 2 rates; 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 2. No later than six months after the date the plan is approved, the 7 producer, or producer responsibility organization, shall implement the 8 approved plan. The department may rescind the approval of an approved 9 plan at any time. 10 § 27-3011. Collection and convenience. 11 A producer or producer responsibility organization shall provide for 12 widespread, convenient, and equitable access to collection opportunities 13 for the covered products identified under the producer or producer 14 responsibility organization's plan. A producer responsibility organiza- 15 tion shall ensure services continue for all single and multi-family 16 residential units that a municipality serves as of the effective date of 17 this article, either directly or through a contract to provide services, 18 and that such services are continued through the plan. A producer 19 responsibility organization may rely on a range of means to collect 20 various categories of covered materials or products including, but not 21 limited to, curbside collection, depot drop-off, and retailer take-back 22 so long as covered materials and products collection options include 23 curbside or multi-family recycling collection services provided by 24 municipal programs, municipal contracted programs, solid waste 25 collection companies, or other approved entities as identified by the 26 department if: 27 1. The category of covered materials and products is suitable for 28 residential curbside recycling collection and can be effectively sorted 29 by the facilities receiving the curbside collected material; 30 2. The category of paper is suitable for residential curbside recycl- 31 ing collection and can be effectively sorted by the facilities receiving 32 the curbside collected material; 33 3. The provider of the residential curbside recycling service agrees 34 to include the category of covered materials and products as an accepted 35 material; 36 4. The covered materials and products category is not handled through 37 a deposit and return scheme or buy back system that relies on a 38 collection system other than curbside or multi-family collection; and 39 5. The provider of the residential curbside recycling service agrees 40 to the producer responsibility organization activity-based costs 41 arrangement. 42 § 27-3013. Outreach and education. 43 1. The producer, or producer responsibility organization, shall 44 provide effective outreach, education, and communications to consumers 45 throughout New York state regarding: 46 (a) proper end-of-life management of covered products and beverage 47 containers; 48 (b) the location and availability of curbside and drop-off collection 49 opportunities; 50 (c) how to prevent litter of covered products and beverage containers; 51 and 52 (d) recycling and composting instructions that are: consistent state- 53 wide, except as necessary to take into account differences among local 54 laws and processing capabilities; easy to understand; and easily acces- 55 sible.S. 7718 8 1 2. The outreach and education required pursuant to subdivision one of 2 this section shall: 3 (a) be designed to achieve the management goals of covered products 4 under this title, including the prevention of contamination of covered 5 products; 6 (b) be coordinated across programs to avoid confusion for consumers; 7 (c) include, at a minimum: consulting on education, outreach, and 8 communications with local governments and other stakeholders; coordinat- 9 ing with and assisting local municipal programs, municipal contracted 10 programs, solid waste collection companies, and other entities providing 11 services; and developing and providing outreach and education to the 12 diverse ethnic populations in the state; and 13 (d) a plan to work with participating producers to label covered 14 products with information to assist consumers in responsibly managing 15 and recycling covered products. 16 3. The department shall determine the effectiveness of outreach and 17 education efforts under this section to determine whether changes are 18 necessary to improve those outreach and education efforts and develop 19 information that may be used to improve outreach and education efforts 20 under this section. 21 4. The producer responsibility organization shall undertake outreach, 22 education, and communications that assist in attaining or exceeding the 23 minimum post-consumer content and recovery rates. 24 § 27-3015. Reporting requirements and audits. 25 1. On or before one year after a producer or producer responsibility 26 organization's first plan is approved, and annually thereafter, each 27 producer, or producer responsibility organization acting as their desig- 28 nated agent, shall submit a report to the commissioner that details the 29 program for the prior year's program. The report shall be posted on the 30 department's website and on the website of the producer, or producer 31 responsibility organization acting as their designated agent. Such annu- 32 al report shall include: 33 (a) a detailed description of the methods used to collect, transport 34 and process covered materials and products including detailing 35 collection methods made available to consumers and an evaluation of the 36 program's collection convenience; 37 (b) the overall weight of covered materials and products collected in 38 the state; 39 (c) the weight and type of covered materials and products collected in 40 the state by the method of disposition; 41 (d) the total cost of implementing the program, as determined by an 42 independent financial audit, as performed by an independent auditor; 43 (e) information regarding the independently audited financial state- 44 ments detailing all deposits received and refunds paid by the producers 45 covered by the approved plan, and revenues and expenditures for any fees 46 associated with the approved plan that may be charged separately and 47 identified on the consumer receipt of sale; 48 (f) a copy of the independent audit; 49 (g) a detailed description of whether the program compensates munici- 50 palities, solid waste collection, sorting, and reprocessing companies, 51 and other approved entities for their recycling efforts and other 52 related services provided by the above entities; 53 (h) samples of all educational materials provided to consumers or 54 other entities; andS. 7718 9 1 (i) a detailed list of efforts undertaken and an evaluation of the 2 methods used to disseminate such materials including recommendations, if 3 any, for how the educational component of the program can be improved. 4 2. The department shall not require public reporting of any confiden- 5 tial information that the department finds to be protected proprietary 6 information. For purposes of this title, protected proprietary informa- 7 tion shall mean information that, if made public, would divulge compet- 8 itive business information, methods or processes entitled to protection 9 as trade secrets of such producer or producer responsibility organiza- 10 tion or information that would reasonably hinder the producer or produc- 11 er responsibility organization's competitive advantage in the market- 12 place. 13 § 27-3017. Antitrust protections. 14 A producer responsibility organization, including officers, members, 15 employees and agents thereof, shall be immune from liability for conduct 16 under state laws relating to antitrust, restraint of trade, unfair trade 17 practices, and other regulation of trade or commerce only to the extent 18 necessary to plan and implement compliance with this section. 19 § 27-3019. 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 seventy-one of this chapter 26 shall be liable for a civil penalty not to exceed five hundred dollars 27 for each violation and an additional penalty of not more than five 28 hundred 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, or 32 any term or condition of any registration or permit issued pursuant 33 thereto, or any final determination or order of the commissioner made 34 pursuant to this article or article seventy-one of this chapter shall be 35 liable for a civil penalty not to exceed five thousand dollars for each 36 violation and an additional penalty of not more than one thousand five 37 hundred dollars for each day during which such violation continues. For 38 a second violation committed within twelve months of a prior violation, 39 the producer or producer responsibility organization shall be liable for 40 a civil penalty not to exceed ten thousand dollars and an additional 41 penalty of not more than three thousand dollars for each day during 42 which such violation continues. For a third or subsequent violation 43 committed within twelve months of any prior violation, the producer or 44 producer responsibility organization shall be liable for a civil penalty 45 not to exceed twenty thousand dollars and an additional penalty of six 46 thousand dollars for each day during which such violation continues. 47 (b) All producers participating in a producer responsibility organiza- 48 tion shall be jointly and severally liable for any penalties assessed 49 against the producer responsibility organization pursuant to this title 50 and article seventy-one of this chapter. 51 3. Civil penalties under this section shall be assessed by the depart- 52 ment after an opportunity to be heard pursuant to the provisions of 53 section 71-1709 of this chapter, or by the court in any action or 54 proceeding pursuant to section 71-2727 of this chapter, and in addition 55 thereto, such person or entity may by similar process be enjoined from 56 continuing such violation and any permit, registration or other approvalS. 7718 10 1 issued by the department may be revoked or suspended or a pending 2 renewal denied. 3 4. The department and the attorney general are hereby authorized to 4 enforce the provisions of this title and all monies collected shall be 5 deposited to the credit of the environmental protection fund established 6 pursuant to section ninety-two-s of the state finance law. 7 § 27-3021. State preemption. 8 Jurisdiction in all matters pertaining to activity-based costs and 9 funding mechanisms of producer responsibility organizations relating to 10 the recovery of covered materials by this title, vested exclusively in 11 the state. Any provision of any local law or ordinance, or any rule or 12 regulation promulgated thereto, governing covered materials and products 13 recycling shall, upon the effective date of this title, be preempted; 14 provided however, that nothing in this section shall preclude a person 15 from coordinating, for recycling or reuse, the collection of covered 16 materials and products. 17 § 27-3023. Authority to promulgate rules and regulations. 18 The commissioner shall have the power to promulgate rules and regu- 19 lations necessary and appropriate for the administration of this title. 20 § 27-3025. Severability. 21 The provisions of this title shall be severable and if any phrase, 22 clause, sentence or provision of this title or the applicability thereof 23 to any person or circumstance shall be held invalid, the remainder of 24 this title and the application thereof shall not be affected thereby. 25 § 3. This act shall take effect on the one hundred eightieth day after 26 it shall have become a law.
