Bill Text: NY A05322 | 2023-2024 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Enacts the "packaging reduction and recycling infrastructure act" to require companies selling, offering for sale, or distributing packaging materials and products to register with a packaging reduction organization to develop a packaging reduction and recycling plan.
Spectrum: Partisan Bill (Democrat 75-1)
Status: (Introduced) 2024-06-06 - ordered to third reading rules cal.482 [A05322 Detail]
Download: New_York-2023-A05322-Amended.html
Bill Title: Enacts the "packaging reduction and recycling infrastructure act" to require companies selling, offering for sale, or distributing packaging materials and products to register with a packaging reduction organization to develop a packaging reduction and recycling plan.
Spectrum: Partisan Bill (Democrat 75-1)
Status: (Introduced) 2024-06-06 - ordered to third reading rules cal.482 [A05322 Detail]
Download: New_York-2023-A05322-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5322--C 2023-2024 Regular Sessions IN ASSEMBLY March 7, 2023 ___________ Introduced by M. of A. GLICK, BURDICK, L. ROSENTHAL, THIELE, PAULIN, SHIMSKY, COLTON, REYES, CARROLL, DARLING, RAJKUMAR, DICKENS, GONZA- LEZ-ROJAS, LUNSFORD, GALLAGHER, BURKE, STECK, KELLES, LEVENBERG, RAGA, SIMON, CUNNINGHAM, SIMONE, SHRESTHA, DE LOS SANTOS, TAPIA, O'DONNELL, FAHY, EACHUS, LAVINE, SEAWRIGHT, DINOWITZ, EPSTEIN, HEVESI, ALVAREZ, FORREST, OTIS, GIBBS, STIRPE, ARDILA, RIVERA, CRUZ, ANDERSON, SILLIT- TI, AUBRY, RAMOS, WEPRIN, ZINERMAN, MAMDANI, GUNTHER, MITAYNES, BICHOTTE HERMELYN, LEE, BARRETT, JACOBSON, STERN, ROZIC, McMAHON, KIM, TAYLOR, CLARK, BURGOS, SAYEGH, SOLAGES, WALLACE, BENEDETTO, JACKSON, PRETLOW, MEEKS, CONRAD, McDONALD, DAVILA, WILLIAMS, BORES, K. BROWN, JEAN-PIERRE, BRONSON, LUCAS -- read once and referred to the Committee on Environmental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Environmental Conservation in accord- ance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Ways and Means -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules AN ACT to amend the environmental conservation law, in relation to enacting the packaging reduction and recycling infrastructure act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "packaging reduction and recycling infrastructure act". 3 § 2. Article 27 of the environmental conservation law is amended by 4 adding a new title 34 to read as follows: 5 TITLE 34 6 PACKAGING REDUCTION AND RECYCLING INFRASTRUCTURE ACT 7 Section 27-3401. Definitions. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08868-17-4A. 5322--C 2 1 27-3403. Selection of packaging reduction and recycling organ- 2 izations. 3 27-3405. Responsibilities of packaging reduction and recycling 4 organizations. 5 27-3407. Packaging reduction and recycling organization plan. 6 27-3409. Packaging reduction and recycling plan approval. 7 27-3411. Packaging reduction and recycling advisory council. 8 27-3413. Funding mechanism. 9 27-3415. Collection and convenience. 10 27-3417. Producer responsibilities. 11 27-3419. Department responsibilities. 12 27-3421. Statewide packaging reduction, reuse, and recycling 13 needs assessment. 14 27-3423. Education and outreach program. 15 27-3425. Prohibition on certain toxic substances and materials. 16 27-3427. Non-reusable packaging reduction standards. 17 27-3429. Recycled content standards. 18 27-3431. Recyclability criteria and packaging recycling require- 19 ments. 20 27-3433. Establishment of the office of recycling inspector 21 general. 22 27-3435. Penalties and enforcement. 23 27-3437. Rules and regulations. 24 27-3439. State preemption. 25 27-3441. Other assistance programs. 26 27-3443. Antitrust protections. 27 27-3445. Severability. 28 § 27-3401. Definitions. 29 As used in this title: 30 1. "Advisory council" or "council" means the packaging reduction and 31 recycling advisory council established under section 27-3411 of this 32 title. 33 2. "Affiliate" means a person who directly, or indirectly through one 34 or more intermediaries, controls, is controlled by, or is under common 35 control with a producer. 36 3. "Beverage container" shall have the same meaning as is set forth in 37 subdivision two of section 27-1003 of this article. 38 4. "Brand" means any mark, word, name, symbol, design, device, or 39 graphical element or a combination thereof, including a registered or 40 unregistered trademark, that identifies and distinguishes a product from 41 other products. 42 5. "Contamination" means: 43 (a) the presence of materials in a given collected material stream 44 that are not on the minimum recyclables list maintained by the depart- 45 ment; or 46 (b) the presence of materials in a given recycled material delivered 47 as a feedstock or commodity that are not specified or accepted as a 48 component of the feedstock or commodity. 49 6. "Control", including the terms "controlling", "controlled by" and 50 "under common control with", means the possession, directly or indirect- 51 ly, of the power to direct or cause the direction of (a) the management 52 and policies of a person, (b) the operation of a person, or (c) substan- 53 tially all of the assets of a person, whether through the ownership of 54 voting securities, by contract, or otherwise. 55 7. "Discarded", "discards", "generated" or "generation" means packag- 56 ing material that has been used for its intended purpose and is no long-A. 5322--C 3 1 er needed by consumers, businesses, institutions, and other users, and 2 can be managed through reuse, recycling, or disposal. 3 8. "Disposal" means the landfilling or incineration of material or 4 products. "Disposal" shall also include energy recovery or energy 5 generation by any means, including, but not limited to, incineration, 6 combustion, pyrolysis, gasification, or solvolysis, waste-to-energy, or 7 waste-to-fuel, or any other chemical conversion process. "Disposal" 8 shall also include the use of materials as landfill cover. 9 9. "Eco-modulation" means structuring program fees in a way to provide 10 producers with financial incentives to reduce waste at the source, 11 increase recyclability of packaging materials, promote reusable packag- 12 ing products, including those that are contained within a reuse and 13 refill system, discourage and decrease contamination, disincentivize 14 designs or practices that increase the costs and adverse environmental 15 impacts of managing the packaging materials, and encourage designs and 16 processes that improve and facilitate development of infrastructure and 17 systems for source reduction, reuse, recycling, and composting. 18 10. "Disadvantaged community" shall have the same meaning as is set 19 forth in subdivision five of 75-0101 of this chapter. 20 11. "Intentionally added substance" means a substance or material that 21 serves an intended function or technical effect in the product or prod- 22 uct component, including as an intentional breakdown product of an 23 added chemical that also has a functional or technical effect in the 24 product or product component. 25 12. "Local government" means any municipal corporation, governmental 26 subdivision of the state, local government unit, special district, 27 school, local or regional board, commission, or authority authorized by 28 law to plan or provide for waste management services for a specific 29 geographical area. 30 13. "Minimum recyclables list" means a list of those materials that, 31 identified by the department in regulations, must be managed through the 32 packaging reduction and recycling program and by the local governments 33 and service providers that receive funding or reimbursement from the 34 program as approved by the department in accordance with section 27-3419 35 of this title. 36 14. "Packaging material" or "material" means a discrete material or 37 category of material, regardless of recyclability, including but not 38 limited to such material types that are flexible, foam, or rigid materi- 39 al, including paper, cardboard, plastic, glass, metal, or multi-materi- 40 al, that is used for the containment, protection, handling, delivery, 41 transport, distribution, or presentation of another product that is 42 sold, offered for sale, imported, or distributed in the state, including 43 through an internet transaction, and single-use plastic products. Pack- 44 aging material does not include: 45 (a) Medical devices and packaging which are included with products 46 regulated as a drug, medical device, or dietary supplement by the United 47 States food and drug administration under the federal food, drug, and 48 cosmetic act, 21 U.S.C. 321 et seq., Sec. 3.2(E) of 21 U.S. code of 49 federal regulations, or the dietary supplement health and education act; 50 (b) Animal biologics, including vaccines, bacterins, antisera, diag- 51 nostic kits, and other products of biological origin, and other packag- 52 ing materials regulated by the United States department of agriculture 53 under the virus, serum, toxin act, 21 U.S.C. 151-159; 54 (c) Packaging regulated by the Federal Insecticide, Fungicide, and 55 Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other applicable federal 56 law, rule, or regulation;A. 5322--C 4 1 (d) Packaging used to contain hazardous or flammable products regu- 2 lated by the 2012 federal Occupational Safety and Health Administration 3 Hazard Communications Standard, 29 C.F.R. 1910.1200; 4 (e) Plastic packaging containers used to contain and ship products 5 that are classified for transportation as dangerous goods or hazardous 6 materials under 40 C.F.R. 178; 7 (f) Beverage containers subject to a returnable container deposit 8 under title ten of this article; 9 (g) Infant formula as defined in section 321(z) of title 21 of the 10 United States code of federal regulations; 11 (h) Medical foods as defined in section 360ee(b)(3) of title 21 of the 12 United States code of federal regulations; and 13 (i) Architectural paint containers collected and managed pursuant to 14 title twenty of this article. 15 15. "Packaging reduction and recycling organization" or "organization" 16 means a not-for-profit organization registered pursuant to 26 U.S.C. 17 501(c)(3) designated by the department for the initial organization, or 18 by a group of producers for subsequent organizations, to act as an agent 19 on behalf of each producer to develop and implement a packaging 20 reduction and recycling plan pursuant to section 27-3407 of this title 21 and comply with the organization's responsibilities under section 22 27-3405 of this title. 23 16. "Packaging reduction and recycling plan" or "plan" means a docu- 24 ment in which an organization describes the efforts it will undertake to 25 comply with the requirements of this title. 26 17. "Packaging reduction and recycling program" or "program" means the 27 program implemented by an organization, and overseen by the department, 28 to comply with and implement the provisions of this title. 29 18. "Post-consumer recycled material" means new material produced 30 using material resulting from recycling. 31 19. "Primary packaging" means the packaging in direct contact with the 32 product itself, also sometimes referred to as a consumer unit. 33 20. "Producer" means the following entities, other than local govern- 34 ments, state governments and the federal government, for compliance with 35 the requirements for packaging materials sold, offered for sale, or 36 distributed to consumers in or into this state: 37 (a) For products sold or served to consumers at a physical retail 38 location in this state which are not single use plastics: 39 (i) If the product is sold or served in or with packaging under the 40 product manufacturer's own brand or is sold or served in packaging mate- 41 rials that lack identification of a brand, the producer is the person 42 who manufactures the packaged product; 43 (ii) If there is no person to which subparagraph (i) of this paragraph 44 applies, the producer is the person who is licensed to manufacture and 45 sell or serve the packaged product under the brand or trademark of 46 another manufacturer or person, whether or not the trademark is regis- 47 tered in this state, unless the manufacturer of the packaging materials 48 has agreed to accept responsibility; 49 (iii) If there is no person to which subparagraph (i) or (ii) of this 50 paragraph applies, the producer is the brand owner of the product that 51 is packaged; 52 (iv) If there is no person described in subparagraph (i), (ii) or 53 (iii) of this paragraph within the United States, the producer is the 54 person who is the importer of record for the packaged product into the 55 United States for use in a commercial enterprise that sells, offers for 56 sale, or distributes the product in this state; orA. 5322--C 5 1 (v) If there is no person to which subparagraph (i), (ii), (iii) or 2 (iv) of this paragraph applies, the producer is the person who first 3 distributes the packaged product in or into the state. 4 (b) For single use plastics and for products sold or distributed to 5 consumers in packaging materials in or into this state via remote sale 6 or distribution: 7 (i) The producer of packaging materials used to directly protect or 8 contain the product is the same as the producer defined in paragraph (a) 9 of this subdivision. 10 (ii) For packaging materials used to ship the product to a consumer, 11 the producer is the person who packages the item to be shipped to the 12 consumer. 13 (c) For any single use plastic product: 14 (i) If the single use plastic product is sold under the manufacturer's 15 own brand, the producer is the person who manufactures the single use 16 plastic product; 17 (ii) If there is no person to which subparagraph (i) of this paragraph 18 applies, the producer is the person who is the owner or licensee of a 19 brand or trademark under which the single use plastic product is used in 20 a commercial enterprise, sold, offered for sale, or distributed in or 21 into this state, whether or not the trademark is registered in this 22 state; 23 (iii) If there is no person to which subparagraph (i) or (ii) of this 24 paragraph applies, the producer is the brand owner of the single use 25 plastic product; 26 (iv) If there is no person described in subparagraph (i), (ii), or 27 (iii) of this paragraph within the United States, the producer is the 28 person who imports the single use plastic product into the United States 29 for use in a commercial enterprise that sells, offers for sale, or 30 distributes the single use plastic product in this state; or 31 (v) If there is no person described in subparagraph (i), (ii), (iii) 32 or (iv) of this paragraph, the producer is the person who first distrib- 33 utes the single use plastic product in or into this state. 34 (d) Where the producer pursuant to paragraph (a) or (c) of this subdi- 35 vision is a business operated wholly or in part as a franchise, the 36 producer is the franchisor, if such franchisor has franchisees that have 37 a commercial presence in the state. 38 21. "Product line" means a group of related products all marketed 39 under a single brand that is sold by the same producer to distinguish 40 products from each other for better usability for customers. 41 22. "Recyclable" means a packaging material that meets the criteria in 42 subdivision one of section 27-3431 of this title. 43 23. "Recycled" means the use of discarded packaging materials or 44 products in the production of a new product or packaging in place of 45 virgin materials. "Recycled" material does not include contaminants, 46 residues, and other process losses or use of materials as landfill 47 cover. 48 24. "Recycling" means to separate, dismantle or process the materials, 49 components or commodities contained in discards for the purpose of 50 preparing the materials, components, or commodities for use or reuse in 51 new products or components. "Recycling" does not include: (a) energy 52 recovery or energy generation by any means, including but not limited 53 to, combustion, incineration, pyrolysis, gasification, solvolysis, or 54 waste-to-fuel; (b) any chemical conversion process; or (c) landfill 55 disposal.A. 5322--C 6 1 25. "Recycling rate" means the percentage of any given material or 2 category of material that is ultimately recycled. The recycling rate for 3 any packaging material shall be calculated as the total weight of pack- 4 aging material that is recycled in a given year divided by the total 5 weight of packaging material generated in that year. 6 26. "Reuse" means the return of packaging material back into the 7 economic stream for use in the same kind of application intended for the 8 original packaging, without effectuating a change in the original compo- 9 sition of the package, the identity of the product, or the components 10 thereof. 11 27. "Reuse and refill system" means a program or set of mechanisms 12 designed to facilitate multiple uses of packaging. Mechanisms may 13 include, but are not limited to, deposits, incentives, curbside 14 collection, collection kiosks, refill stations, dishwashing facilities, 15 and re-distribution networks. 16 28. "Reusable or refillable packaging and containers" means packaging 17 material and containers that are specifically designed and manufactured 18 to maintain shape and structure, and be materially durable for repeated 19 sanitizing, washing, and reuse; provided, however, that such packaging 20 and containers must comply with the high reuse and refill rate as set 21 forth in the plan and approved by the department. 22 29. "Single use plastic" means single use plastic products that 23 frequent the residential waste stream or are plastic products that have 24 the effect of disrupting recycling processes, including, but not limited 25 to, single use plastic items such as straws, utensils, cups, plates, and 26 plastic bags. 27 30. "Toxic packaging task force" means the toxic packaging task force 28 established by subdivision two of section 27-3425 of this title. 29 31. "Toxic substances" means a chemical or chemical class identified 30 by a state agency, federal agency, international intergovernmental agen- 31 cy, accredited research university, or other scientific entity deemed 32 authoritative by the department on the basis of credible scientific 33 evidence as being one or more of the following: 34 (a) A chemical or chemical class that is a carcinogen, mutagen, repro- 35 ductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor. 36 (b) A chemical or chemical class that is persistent or bioaccumula- 37 tive. 38 (c) A chemical or chemical class that may harm the normal development 39 of a fetus or child or cause other developmental toxicity in humans or 40 wildlife. 41 (d) A chemical or chemical class that may harm organs or cause other 42 systemic toxicity. 43 (e) A chemical or chemical class that may have adverse air quality 44 impacts, adverse ecological impacts, adverse soil quality impacts, or 45 adverse water quality impacts. 46 (f) A chemical or chemical class that the department has determined 47 has equivalent toxicity to the above criteria. 48 32. "Unit weight" means the weight of packaging material per unit of 49 product sold. 50 § 27-3403. Selection of packaging reduction and recycling organizations. 51 1. Until the date which is ten years after the effective date of this 52 title, there shall be only one packaging reduction organization and all 53 producers shall be required to register with such packaging reduction 54 organization. 55 2. Within six months of the effective date of this title, any not-for- 56 profit seeking to serve as the initial packaging reduction and recyclingA. 5322--C 7 1 organization shall submit an application on a form and format prescribed 2 by the department. 3 3. Consistent with the requirements of this title, within nine months 4 of the effective date of this title, the department shall select a not- 5 for-profit organization applicant to act as the initial packaging 6 reduction and recycling organization to operate the packaging reduction 7 and recycling program, and such organization shall then register with 8 the department in the manner prescribed by the department. 9 4. Regulations promulgated pursuant to this title may provide for 10 additional organizations beginning ten years after the effective date of 11 this title if, after ten years and the recommendation by the advisory 12 council pursuant to subdivision ten of section 27-3411 of this title, 13 the department determines that it would be beneficial for there to be 14 additional organizations implementing the program, such regulations 15 shall ensure: 16 (a) consistency and coordination between all organizations; 17 (b) responsibilities carried out are consistent and seamless; 18 (c) local governments and service providers are reimbursed for recycl- 19 ing services as required under this chapter; and 20 (d) that packaging material requirements are not reported as gener- 21 ated, supplied or managed by more than one organization. 22 § 27-3405. Responsibilities of packaging reduction and recycling organ- 23 izations. 24 1. Producers shall register with a packaging reduction organization to 25 meet the responsibilities of the program pursuant to the provisions of 26 this section, and each organization shall be responsible for implementa- 27 tion of the program on behalf of producers registered with such organ- 28 ization. 29 2. Each organization involved in the administration of the program 30 shall: 31 (a) Develop a packaging reduction and recycling plan and submit such 32 plan to the advisory council for review and comment, and after any 33 modifications in response to such comments, submit the plan to the 34 commissioner for approval pursuant to section 27-3407 of this title; 35 (b) Collect and compile data from producers as required by section 36 27-3417 of this title; 37 (c) Calculate reimbursement rates through the objective formula 38 approved by the department as contemplated by paragraph (e) of subdivi- 39 sion five of section 27-3407 of this title for the costs associated 40 with this title, the implementation of reduction, refill, and reuse 41 programs, and the collection, transportation and recycling, or other 42 processing of packaging materials; 43 (d) Collect fees due from producers as required by section 27-3413 of 44 this title; 45 (e) Reimburse the department and any other relevant state agencies for 46 the costs associated with conducting the statewide needs assessment 47 required by section 27-3421 of this title, the administration of the 48 program by the department, and the expenses of the advisory council and 49 the toxic packaging task force; 50 (f) Distribute funds to reimburse local governments and private compa- 51 nies for the costs associated with this title, including the implementa- 52 tion of reduction, refill, and reuse programs, and the collection, 53 transportation and recycling, disposal or other processing of packaging 54 materials; 55 (g) Undertake an effective statewide education and public outreach 56 program as required by section 27-3423 of this title;A. 5322--C 8 1 (h) Offer technical support to producers, with an emphasis on support 2 to small businesses, to assist them with compliance with the require- 3 ments of this title, including information about procuring affordable 4 alternatives to non-compliant packaging material and reducing packaging 5 material; and 6 (i) Make recommendations to the department regarding investments in 7 reduction, refill, reuse, collection, transportation, recycling, 8 disposal, and other processing of packaging materials consistent with 9 this title. 10 3. Annually, each organization shall submit a report to the department 11 that, at a minimum, must include the following information: 12 (a) Contact information for the organization; 13 (b) A list of all (i) producers, (ii) brands, and (iii) products that 14 each producer sells, offers for sale, or distributes into the state that 15 are contained, protected, delivered, presented, or distributed in or 16 using packaging material, in each case identified by the Universal Prod- 17 uct Code (UPC) if the product has one; 18 (c) The total amount, by both weight and number of units, which may be 19 estimated if an exact amount is infeasible to provide, of each type of 20 packaging material used to contain, protect, handle, deliver, transport, 21 distribute, or present products sold, offered for sale, or distributed 22 into the state by each individual producer during the prior calendar 23 year; 24 (d) The total amount, by both weight and number of units, of each 25 material used to contain, protect, handle, deliver, transport, distrib- 26 ute, or present products sold, offered for sale, or distributed into the 27 state by all producers during the prior calendar year; 28 (e) The total amount, by weight, of each material category recycled as 29 a result of activities undertaken by the organization, either directly 30 or through reimbursement or contractual arrangement; 31 (f) A calculation of the recycling rate of each material category 32 which is derived by dividing the amount of each material category recy- 33 cled, as reported in paragraph (e) of this subdivision by the amount of 34 each material category generated, as reported in paragraph (d) of this 35 subdivision; 36 (g) A complete accounting of all payments made to and by the organiza- 37 tion during the prior calendar year; 38 (h) An analysis of the average time it took to reimburse munici- 39 palities during the prior calendar year; 40 (i) A list of producers reasonably believed to be out of compliance 41 with the requirements of this title, and the reason the organization 42 reasonably believes the producer to be out of compliance. Information 43 on non-compliant producers shall be provided to the commissioner and 44 recycling inspector general's office in a timely fashion and for possi- 45 ble enforcement action by the office; 46 (j) A description of the educational and outreach efforts made by the 47 organization in the prior calendar year, and how those efforts were 48 designed to reduce packaging waste, and increase reuse and recycling of 49 packaging materials; 50 (k) An assessment of whether the fee structure adopted by the organ- 51 ization pursuant to section 27-3413 of this title has been effective in 52 incentivizing improvements to the design of packaging material, includ- 53 ing actual reduction of packaging material, increases in reusable and 54 refillable packaging material, recycling rates for packaging materials, 55 and decreases in the amount of packaging material;A. 5322--C 9 1 (l) A description of the reimbursements and expenditures, including 2 the timeliness of such reimbursements, made pursuant to section 27-3413 3 of this title; 4 (m) A recommended minimum recyclables list that meets the requirements 5 of subdivision one of section 27-3431 of this title, based on the needs 6 assessment, information gathered from end markets, including commodity 7 brokers and manufacturers who purchase post-consumer materials for use 8 in manufacturing new products, and available collection and processing 9 infrastructure information; 10 (n) Audited financial statements; 11 (o) The results of the review conducted pursuant to subdivision five 12 of this section; and 13 (p) Any additional information required by the department. 14 4. Each organization shall conduct an annual review process to deter- 15 mine whether packaging materials are recyclable. This review shall be 16 conducted in consultation with representatives of end markets, including 17 recycled commodities brokers and manufacturers who purchase post-consum- 18 er material for use in manufacturing new products, and in consultation 19 with local governments. For the purposes of calculating producer 20 payments and local government reimbursements in accordance with this 21 title, this annual process shall include a transitional period between 22 the date the determination is finalized and the date it goes into 23 effect. 24 5. Each organization shall conduct public outreach and provide consum- 25 ers with educational and informational materials related to reducing the 26 amount of packaging discarded, recycled, and disposed of in the state as 27 outlined in section 27-3423 of this title. 28 6. Each organization shall operate a program that provides for 29 collection convenience as described in section 27-3415 of this title. 30 7. An organization shall not share, except with the department, the 31 advisory council, and the toxic packaging task force, or as required by 32 law, any proprietary information that is identified by a producer as 33 proprietary information without prior written consent. 34 § 27-3407. Packaging reduction and recycling organization plan. 35 1. Within two years of the effective date of this title, the initial 36 packaging reduction organization shall develop and submit a packaging 37 reduction and recycling plan for implementation of the rules and regu- 38 lations of this title, including ensuring timely disbursements to local 39 governments, to the department for approval. The plan shall be submitted 40 to the advisory council for review pursuant to section 27-3411 of this 41 title prior to the department's approval. Any subsequent or additional 42 organization shall develop and submit a packaging reduction and recycl- 43 ing plan and comply with all the requirements of this section, and have 44 such plan approved pursuant to section 27-3409 of this title. 45 2. The plan shall cover five years and be updated every five years 46 following the approval of the original plan. The department shall have 47 the discretion to require the plan to be reviewed or revised prior to 48 the five-year period pursuant to section 27-3419 of this title. 49 3. Each producer shall begin program implementation within six months 50 after the date the plan for the initial organization is approved and in 51 no event later than three years of the effective date of this title. If 52 no plan is approved by that timeframe, the department, in its 53 discretion, shall either approve a plan with conditions or specify 54 modifications that must be made within forty-five days to conform the 55 submitted plan to the requirements of this section. If a producer is 56 not making good faith efforts to comply with the requirements of thisA. 5322--C 10 1 title during such forty-five day period, the producer shall be subject 2 to penalties for noncompliance. 3 4. The submitted plan shall include, but not be limited to: 4 (a) contact information, including the name, e-mail address, physical 5 address, and telephone number of the authorized representative of the 6 producer or producers; 7 (b) the identity of the producer or producers participating in the 8 plan; 9 (c) a comprehensive list of the types and brands of covered materials 10 for which the producer or producers are responsible for; 11 (d) a description of how the organization will implement the program, 12 including the mechanisms and processes for providing assistance to 13 producers to comply with the reporting requirements of this title; 14 (e) in relation to funding the program: 15 (i) a proposed budget outlining the anticipated costs of operating the 16 program and a description of the method by which the organization 17 intends to determine and collect producer payments during the initial 18 startup period; 19 (ii) a description of the proposed funding mechanism, identified in 20 section 27-3413 of this title, that meets the requirements of this 21 title; 22 (iii) a description of how the organization will maintain a financial 23 reserve sufficient to operate the program in a fiscally prudent and 24 responsible manner; and 25 (iv) a description of how the organization intends to manage and 26 account for all program related funds which pass through the organiza- 27 tion, including how timely reimbursements to local governments will be 28 provided; 29 (f) an objective formula establishing a reimbursement rate, which 30 covers obligations identified in the needs assessment and the minimum 31 recyclables list and takes into account variable regional costs, for 32 participating local governments or private sector service providers; 33 (g) a description of the process for participating local governments 34 or private sector service providers to recoup reasonable costs as estab- 35 lished by the objective formula, from the producer or organization, 36 including, as applicable, any administrative, sorting, collection, 37 transportation, public education, or processing costs, if the organiza- 38 tion uses existing services through a local government or obtains such 39 services from a private sector service provider; 40 (h) at a minimum, the following funding mechanism details shall be 41 provided in the plan: 42 (i) proposed program fees, provided as a table listing the rate paid 43 for each material category, including at a minimum those identified in 44 subdivision three of section 27-3413, which in sum, will generate suffi- 45 cient funding to cover obligations identified in the needs assessment 46 and the requirements of this title; and 47 (ii) proposed program fee adjustments to incorporate eco-modulation 48 factors; 49 (i) a description of the characteristics of each type of packaging 50 material that is relevant to the eco-modulating factors set forth pursu- 51 ant to section 27-3413 of this title; 52 (j) if the local government does not elect to provide service, a 53 description of the process used for contracting with a private sector 54 entity to provide such services and the recoupment of reasonable costs, 55 including procedures to ensure that such private sector entity is not 56 compensated for such services by both the organization and the consumerA. 5322--C 11 1 for the same service, provided, however, that the packaging reduction 2 organization and any such private sector entity has entered into a labor 3 peace agreement with a bona-fide labor organization that is actively 4 engaged in representing or attempting to represent its employees and its 5 contractors' employees; 6 (k) a description of how the organization will work with existing 7 waste haulers, material recovery facilities, recyclers, and local 8 governments to operate or expand current collection programs to address 9 material collection methods, improve efficiency and yield of processing 10 materials from separate collection streams, and increase packaging 11 reduction and reuse; 12 (l) a description of how the organization will use open, competitive, 13 and fair procurement practices should they directly enter into contrac- 14 tual agreements with service providers, including municipalities and 15 private entities; 16 (m) a description of how a local government will participate, on a 17 voluntary basis, with collection and how existing local government recy- 18 cling processing and collection infrastructure will be used; 19 (n) a description of how the organization plans to meet the conven- 20 ience requirements set forth in this title; 21 (o) a description of the process for end-of-life management, including 22 recycling and disposal of residuals collected for recycling, using envi- 23 ronmentally sound management practices; 24 (p) a description of how the organization shall provide the option to 25 purchase recycled materials from processors; 26 (q) a description of how producers are complying with the waste 27 reduction, toxics, recycling and post-consumer content requirements of 28 this title, and the process for verifying compliance, including any 29 third party verification services; 30 (r) a description of how: (i) the organization will strategically 31 invest in existing and future reuse and recycling infrastructure and 32 market development in the state in consultation with the department and 33 in a manner not inconsistent with the needs assessment, including, but 34 not limited to, installing or upgrading equipment to improve the sorting 35 of covered materials or mitigating the impacts of materials on other 36 commodities at existing sorting and processing facilities, and capital 37 expenditures for new technology, equipment, and facilities; and (ii) how 38 the process to offer and select opportunities will be conducted in an 39 open, competitive, and fair manner; 40 (s) a description of how the organization's recycling infrastructure 41 and market development investments (i) were informed by the results of 42 the needs assessment, and (ii) will utilize the state's existing infras- 43 tructure; 44 (t) a process to address concerns and questions from customers and 45 residents; 46 (u) a description of the organization's public outreach education 47 program for consumers and other stakeholders; 48 (v) a description of how the comments of stakeholders were considered 49 and addressed in the development of the plan; 50 (w) a detailed description of how the organization consulted with the 51 advisory council, the public, and other stakeholders in the development 52 of the plan prior to its submission to the department, and to what 53 extent the organization specifically incorporated the advisory council's 54 input into the plan; 55 (x) a comprehensive contingency plan demonstrating how the activities 56 in the plan will continue to be carried out by some other entity, ifA. 5322--C 12 1 needed, such as an escrow company, until such time as a new plan is 2 submitted and approved by the department: 3 (i) upon the expiration of an approved plan; 4 (ii) in the event that the organization has been notified by the 5 department that it must transfer implementation responsibility for the 6 plan to a different organization; 7 (iii) in the event that the organization notifies the department that 8 it will cease to implement an approved plan; or 9 (iv) in any other event that the organization can no longer carry out 10 plan implementation; and 11 (y) any other additional information required by the department. 12 5. The organization shall also provide the advisory council a reason- 13 able period of time to review and comment upon the draft plan prior to 14 its submission to the department in accordance with section 27-3409 of 15 this title which shall in no event be less than sixty days. The organ- 16 ization shall make an assessment of comments received and shall provide 17 a summary and an analysis of the issues raised by the advisory council 18 and significant changes suggested by any such comments, a statement of 19 the reasons why any significant changes were not incorporated into the 20 plan, and a description of any changes made to the plan as a result of 21 such comments. 22 § 27-3409. Packaging reduction and recycling plan approval. 23 1. Before approval or denial of a packaging reduction and recycling 24 plan can be made in accordance with this title, the producer or organ- 25 ization shall submit the plan to the packaging reduction and recycling 26 advisory council. The advisory council shall then make a recommendation 27 regarding approval or disapproval of the plan in accordance with section 28 27-3411 of this title. 29 2. Within sixty days of the advisory council making a recommendation 30 to the department, the department shall make a determination to approve 31 the plan as submitted; approve the plan with conditions; or deny the 32 plan, with reasons for the denial. 33 3. The department may establish additional plan requirements in addi- 34 tion to those identified herein to fulfill the intent of this title; 35 provided, however, that any additional requirements shall be established 36 one year prior to a required submission of a plan. 37 4. The department may rescind the approval of an approved plan at any 38 time for cause and with documented justification. 39 5. The maintenance of a labor peace agreement as contemplated by para- 40 graph (j) of subdivision four of section 27-3407 of this title shall be 41 an ongoing material condition of plan approval. 42 6. For the purposes of this title, "labor peace agreement" means an 43 agreement between an entity and labor organization that, at a minimum, 44 protects the state's proprietary interests by prohibiting labor organ- 45 izations and members from engaging in picketing, work stoppages, 46 boycotts, and any other economic interference. 47 § 27-3411. Packaging reduction and recycling advisory council. 48 1. There is hereby established within the department a packaging 49 reduction and recycling advisory council to receive and review the pack- 50 aging reduction and recycling plans required under section 27-3407 of 51 this title, to make recommendations to the department regarding approval 52 of the plans, to review the annual reports produced by organizations and 53 to make recommendations to the department and organizations as required 54 by this section. 55 2. The advisory council shall convene for the first time no later than 56 one year after the effective date of this title. The advisory councilA. 5322--C 13 1 shall be composed of seventeen members. Nine shall be appointed by the 2 commissioner, three shall be appointed by the speaker of the assembly, 3 one shall be appointed by the minority leader of the assembly, three 4 shall be appointed by the temporary president of the senate and one 5 shall be appointed by the minority leader of the senate. The advisory 6 council shall include at least one member from each of the following: 7 (a) a local government association or local government program, 8 including an additional local government representative from cities with 9 a population of one million or more residents; 10 (b) a statewide environmental organization; 11 (c) a representative of a disadvantaged community affected by solid 12 waste infrastructure; 13 (d) an environmental justice organization; 14 (e) a statewide waste disposal or recycling association; 15 (f) a materials recovery facility located within the state; 16 (g) a recycling collection provider; 17 (h) a manufacturer of packaging materials utilizing post-consumer 18 recycled content; 19 (i) a consumer advocate; 20 (j) a retailer; 21 (k) a public health specialist; 22 (l) a producer and an organization established under this title as 23 non-voting members; 24 (m) a representative of a labor organization representing waste 25 collection employees; and 26 (n) a representative of a labor organization representing municipal 27 solid waste and recycling processing employees. 28 3. Appointments to the advisory council are term-limited to ten 29 consecutive years of service; the chair shall be chosen through a major- 30 ity vote of its members and shall serve no longer than three consecutive 31 years. 32 4. Advisory council members shall serve without compensation, except 33 that a member of the committee who is a state officer or employee may 34 receive their regular compensation while engaging in the business of the 35 committee, but shall be entitled to receive reimbursement for any actu- 36 al, necessary expenses incurred in the course of performing business for 37 the committee. 38 5. All decisions made by the advisory council shall be decided by 39 voting and votes shall only be valid when a quorum is present. A quorum 40 shall exist when greater than fifty percent of voting members are pres- 41 ent. The advisory council shall meet at least once a year by the call of 42 the chair or by request of more than half the members. The decisions of 43 the advisory council shall be by vote of the majority of its membership. 44 6. The council shall determine whether the plan submitted under 45 section 27-3409 of this title meets the criteria and objectives under 46 such section in making its recommendation. 47 7. The advisory council shall, within sixty days of the submission of 48 a packaging reduction and recycling plan, either: 49 (a) forward the plan to the commissioner with its recommendation for 50 approval; or 51 (b) forward the plan to the commissioner with its disapproval and 52 stated reasons therefor, including any recommended changes to the plan 53 necessary for approval. 54 8. An organization may resubmit a packaging reduction and recycling 55 plan for approval at any time. Upon such resubmission, the advisoryA. 5322--C 14 1 council shall, within sixty days, forward the plan to the commissioner 2 with its recommendation for approval or disapproval. 3 9. The advisory council shall review the submitted annual reports and 4 make such recommendations to the department and the organization for 5 improving future administration of the program and compliance with this 6 title. 7 10. Thirty months from the date the department adopts rules and regu- 8 lations pursuant to this title, and every three years thereafter, the 9 advisory council shall conduct a review of all relevant data, including 10 annual reports, the latest scientific data available, any pertinent 11 statewide waste and reuse data, and any other information deemed impor- 12 tant, to make recommendations to the following: 13 (a) organizations for any changes in the administration of the 14 program, including feedback on the education and outreach program as 15 outlined in section 27-3423 of this title; 16 (b) the department for any necessary changes to regulations, the fund- 17 ing mechanism, reimbursement and expenditure policies, or whether it 18 would be beneficial for there to be additional organizations implement- 19 ing the program; and 20 (c) the legislature for recommended statutory changes. Such recommen- 21 dations shall include a recommendation as to whether to modify the defi- 22 nition of recycling under this title. 23 § 27-3413. Funding mechanism. 24 1. An organization shall establish such program participation fees for 25 producers through the plan pursuant to section 27-3407 of this title, 26 which shall be sufficient to cover all costs of the program, including 27 administration, enforcement, the statewide needs assessment, and all 28 other state costs of the program and organizations' costs of the 29 program, including but not limited to those costs described in subdivi- 30 sion four of this section. 31 2. An organization shall structure program fees to provide producers 32 with financial incentives through eco-modulation, to reward waste and 33 source reduction and recycling compatibility innovations and practices, 34 and to disincentivize designs or practices that increase costs of manag- 35 ing the products or materials that contain toxic substances. 36 3. An organization may adjust fees to be paid by participating 37 producers based on factors that affect system costs. At a minimum, fees 38 shall be variable based on: 39 (a) The category of packaging material, provided that the list of such 40 packaging material categories for which there is a specific producer fee 41 shall include, at a minimum, the following material types: 42 (i) Paper; 43 (ii) Cardboard; 44 (iii) Corrugated cardboard; 45 (iv) Wood; 46 (v) Glass; 47 (vi) Polyethylene terephthalate (PET); 48 (vii) High density polyethylene (HDPE); 49 (viii) Expanded polystyrene (EPS); 50 (ix) Polystyrene; 51 (x) Bio-plastics; 52 (xi) Generic plastics; 53 (xii) Plastic film; 54 (xiii) Other plastics; 55 (xiv) Ferrous; 56 (xv) Aluminum;A. 5322--C 15 1 (xvi) Tinplate; 2 (xvii) Generic metals; and 3 (xviii) Mixed materials including laminates and packaging containing 4 more than one of the above materials; 5 (b) The quantity of each packaging material type, by weight, that the 6 producer sells, offers for sale, or distributes in the state; 7 (c) Eco-modulation, including as described in subdivision eight of 8 this section. 9 4. Producer fees shall be designed to cover, at minimum, the total 10 costs associated with: 11 (a) Providing curbside collection or other form of residential service 12 that is, at minimum, as convenient as is detailed in section 27-3415 of 13 this title; 14 (b) The department's and other state agencies' administration and 15 enforcement of this title; 16 (c) Organizations' administration of this title; 17 (d) The cost associated with the development of the needs assessment, 18 as required in section 27-3421 of this title; 19 (e) The costs associated with the advisory council and the toxic pack- 20 aging task force; 21 (f) The costs associated with establishing packaging reduction and 22 reuse infrastructure; 23 (g) The cost of reimbursement for, or providing, recycling services, 24 including the collection cost, processing cost for each recyclable mate- 25 rial, cost of handling non-recyclable material types collected as part 26 of a recycling operation, transportation cost of recycling for each 27 material type; and 28 (h) Any other factors determined by the department. 29 5. An organization may adjust producer fees based on factors that 30 affect system costs provided that the specific parameters of such 31 adjustments and fees are included in the plan approved by the depart- 32 ment. At a minimum, fees shall be variable based on: 33 (a) costs to provide curbside collection or another form of residen- 34 tial service that is, at minimum, as convenient as curbside collection 35 or as convenient as the previous recycling collection plan in the 36 particular jurisdiction should recycling collection not be provided; 37 (b) costs to process packaging materials for acceptance by secondary 38 material markets; 39 (c) whether the packaging material would typically be readily-recycla- 40 ble, except that as a consequence of the packaging design, the packaging 41 product has the effect of disrupting recycling processes or the product 42 includes labels, inks, and adhesives containing heavy metals or other 43 toxic substances that would result in contamination of the recycling 44 process; 45 (d) whether the packaging material is specifically designed to be 46 reusable or refillable and has high reuse or refill rate; and 47 (e) the commodity value of a packaging material, as defined by 48 published indices. 49 6. The fees shall be adjusted, or the producers may be provided a 50 credit, as detailed in the plan, based upon the percentage of post-con- 51 sumer recycled material content and such percentage of post-consumer 52 recycled content shall be verified by the organization or through an 53 independent third party approved to perform verification services to 54 ensure that such percentage exceeds the minimum requirements in the 55 packaging, as long as the recycled content does not disrupt the poten- 56 tial for future recycling.A. 5322--C 16 1 7. In addition to the annual schedule of fees approved in the plan, an 2 organization fee schedule may include a special assessment on specific 3 categories of packaging materials, identified in the plan, if the nature 4 of the packaging material imposes unusual costs in collection or proc- 5 essing or requires special actions to address effective access to recy- 6 cling or successful processing in local government recycling facilities. 7 8. The fees shall be structured to provide producers with financial 8 incentives to encourage: 9 (a) A reduction in total packaging as measured by unit weight used by 10 producers, and discarded by consumers, businesses, institutions, and 11 other users. Weight reductions shall not be achieved by substituting 12 plastic for other materials types; 13 (b) An increase in the proportion of a producer's total packaging that 14 is managed within a reuse and refill system; 15 (c) An increase in the proportion of a producer's total packaging that 16 is deemed recyclable as determined by an annual review process as 17 described in section 27-3405 of this title; 18 (d) An increase in the proportion of a producer's total packaging that 19 is ultimately recycled; 20 (e) A reduction in toxic components in packaging materials; and 21 (f) A reduction in litter from packaging materials. 22 9. An organization shall be responsible for calculating and disbursing 23 funding at a reasonable rate developed through an objective formula 24 approved by the department, and such reasonable rate may be varied based 25 on population density rates, for municipal services utilized by an 26 organization if the municipality elects to be compensated by the organ- 27 ization in the collection, recovery, recycling, and processing of 28 covered materials and products, whether such services are provided 29 directly by the municipality or through a contracted service provider. 30 10. If a municipality does not elect to provide service, the organiza- 31 tion shall be responsible for contracting with a private entity for 32 services and shall be responsible for calculating and disbursing funding 33 at a reasonable recycling program rate for collection, recycling, recov- 34 ery, and processing services provided by the private sector entity 35 contracted to provide such service. Any such contract shall be subject 36 to a labor peace agreement as contemplated by paragraph (j) of subdivi- 37 sion four of section 27-3407 of this title. 38 11. To facilitate an organization's cost reimbursement determination, 39 participating municipalities and private sector haulers contracting with 40 the organization shall report data related to their costs and the value 41 of materials to the organization. Cost calculations shall take into 42 consideration the amount received from the sale of source-separated 43 materials. 44 12. There shall be no fee assessed on reusable or refillable packaging 45 and containers contained within a reuse or refill system. 46 13. Any funds directly collected pursuant to this title shall not be 47 used to carry out lobbying activities on behalf of an organization. 48 14. No retailer may charge a point-of-sale or other fee to consumers 49 to facilitate a producer or organization to recoup the costs associated 50 with meeting the obligations under this title. 51 15. Nothing in this title shall require a local government to partic- 52 ipate in the program, provided that a local government must give at 53 least three months' notice of its intent to cease participation. 54 § 27-3415. Collection and convenience. 55 1. The program shall provide for widespread, convenient, and equitable 56 access to collection opportunities for recyclable packaging materials atA. 5322--C 17 1 no additional cost. Such opportunities, including curbside recycling, 2 shall be provided to all residents of the state in a manner that is as 3 convenient as the collection of solid waste as provided to the consumer 4 as of the effective date of this title. Organizations shall ensure 5 services continue for curbside recycling programs as of the effective 6 date of this title, either directly or through a contract to provide 7 services, and that such services are continued through such producer or 8 organization's plan pursuant to section 27-3405 of this title. 9 2. Participation in the program shall not restrict a jurisdiction's 10 consumer's ability to contract directly with third parties to obtain 11 recycling collection services if consumers have the option to enter into 12 such contracts as of the effective date of this title, as long as the 13 consumer still voluntarily chooses to contract directly with the third 14 party. The local government shall not provide disbursement to such 15 third party should the local government provide widespread recycling 16 services either directly or through a contract that is different from 17 the contract with such third party, and there shall be procedures in 18 place to ensure that no service provider is compensated more than once 19 for the same service. 20 3. Organizations may rely on a range of means to collect various cate- 21 gories of packaging materials so long as collection options include 22 curbside recycling collection services provided by municipal programs, 23 municipal contracted programs, solid waste collection companies, or 24 other approved entities as identified by the department if at a minimum: 25 (a) the category of packaging materials is on the minimum recyclables 26 list, is suitable for residential curbside recycling collection and can 27 be effectively sorted by the facilities receiving the curbside collected 28 material; 29 (b) the category of packaging materials is not handled through a 30 deposit and return scheme or buy back system that relies on a collection 31 system other than curbside or multi-family collection; 32 (c) the provider of the curbside recycling service agrees to the 33 organization's service provider costs arrangement; and 34 (d) any private contract for such services is subject to a labor peace 35 agreement as contemplated by paragraph (j) of subdivision four of 36 section 27-3407. 37 4. All local government or private recycling service providers shall 38 provide for the collection and recycling of all packaging materials 39 contained on the minimum recyclables lists, based on geographic regions, 40 in order to be eligible for reimbursement; provided, however, nothing 41 shall penalize a local government or private recycling service for 42 recovering and recycling materials that are generated in the local 43 government or geographic region that are not included on the minimum 44 recyclables lists as long as it can be demonstrated that such materials 45 have a consistent regional market for purchase as determined by the 46 department in consultation with the producer or organization. 47 5. Reimbursement shall cover collection, processing, transportation, 48 and recycling and disposal of all packaging materials so long as the 49 program includes at least the minimum recyclables list. The department 50 may grant an exception to the requirements in this subdivision upon a 51 written showing by the local government or private recycling service 52 that compliance with the requirements is not practicable for a specific 53 identified product or material and if the department finds it is in the 54 best interest of the intent of this title to grant an exception; 55 provided, however, that any such exception granted by the department 56 shall not exceed twelve months.A. 5322--C 18 1 6. Program funds shall be used for investment in collection systems, 2 transportation systems, reuse systems, washing systems, redistribution 3 systems, technology for tracking and data collection, capital expendi- 4 tures on new and emerging technology that is focused on reusable and 5 refillable packaging, as well as equipment, and facilities, and other 6 projects determined by the department to facilitate the goals and 7 objectives of this title. 8 7. Nothing in this title shall be deemed to automatically void or 9 nullify any collection contracts in effect as of the effective date of 10 this title. 11 § 27-3417. Producer responsibilities. 12 1. Beginning with the required program implementation date as contem- 13 plated by subdivision three of section 27-3407 of this title and in no 14 event later than three years after the effective date of this title, a 15 producer shall not sell, offer for sale, or distribute into the state a 16 product contained, protected, delivered, presented, or distributed in 17 packaging unless the producer is registered with an organization and in 18 full compliance with all requirements of this title. Producers shall 19 register with the initial organization within eighteen months of the 20 effective date of this title; provided, however, that any person who 21 becomes a producer thereafter shall register with an organization and 22 begin program implementation within six months thereof or be subject to 23 penalties for noncompliance. 24 2. Either when the producer registers, or within eighteen months of 25 the effective date of this title, whichever is later and annually there- 26 after, each producer shall provide the organization with the following 27 information: 28 (a) Contact information, including the name, e-mail address, physical 29 address, and telephone number of the authorized representative of the 30 producer; 31 (b) A comprehensive list of the categories and brands of packaging 32 materials for which the producer or producers are responsible; 33 (c) The total amount, in units and weight, of each category of packag- 34 ing material sold, offered for sale, or distributed for sale into the 35 state by the producer in the prior calendar year; and 36 (d) Any other information required by the department. 37 3. Producers are responsible for payment of fees, through an organiza- 38 tion, based on the quantity, category of packaging material used in the 39 state, and other factors. 40 4. Producers are responsible for meeting the toxic substances, packag- 41 ing material reduction, post-consumer content, and recycling standards 42 under this title. 43 5. A producer shall electronically submit annually, to both the 44 department and the packaging reduction and recycling organization, a 45 written declaration signed by its chief executive officer, verifying the 46 producer's compliance with: 47 (a) The packaging material reduction requirements of this title; 48 (b) The packaging material recycled content requirements of this 49 title; 50 (c) The packaging material recycling requirements of this title; and 51 (d) The toxic substance reduction requirements of this title. 52 (e) Their obligations to pay fees to the organization pursuant to 53 section 27-3413 of this title and subdivision three of this section. 54 (f) Any reimbursement obligations they have to local governments or 55 third party service providers in connection with this title.A. 5322--C 19 1 6. A producer is exempt from the requirements and prohibitions of this 2 title in a calendar year in which: 3 (a) The producer and its affiliates collectively realized less than 4 five million dollars in total gross revenue during the prior calendar 5 year; 6 (b) The producer and its affiliates collectively sold, offered for 7 sale, or distributed for sale products contained, protected, delivered, 8 presented, or distributed in or using less than two tons of packaging 9 material in total during the prior calendar year; 10 (c) The producer is a not-for-profit corporation that is primarily 11 engaged in preparing and delivering medically tailored meals and 12 medical nutrition therapy. As used in this paragraph, "medically 13 tailored meals and medical nutrition therapy" means nutritional assess- 14 ment, nutritional therapy, and nutritional counseling provided by a 15 certified dietician or certified nutritionist, and the provision of any 16 food indicated by such assessment, therapy or counseling and ordered by 17 a health care professional acting within their lawful scope of practice 18 under title eight of the education law, for the purpose of treating one 19 or more chronic conditions for an individual who is limited in their 20 activities of daily living; or 21 (d) is an agricultural cooperative with less than fifty employees 22 engaged in the production of dairy products. 23 7. A producer claiming an exemption pursuant to subdivision six of 24 this section shall provide the department with sufficient information to 25 demonstrate that the claimant is eligible for an exemption. 26 8. Nothing in this title shall impair a producer's eligibility for tax 27 credits or other business incentives for which they would otherwise 28 qualify. 29 § 27-3419. Department responsibilities. 30 1. Within eighteen months of the effective date of this title, the 31 department shall, in accordance with section 27-3435 of this title, 32 promulgate all rules and regulations necessary to implement, administer, 33 and enforce the provisions of this title, including setting standards 34 for consumer protection when the organization directly disburses funds 35 to third parties. These rules and regulations shall include prohibiting 36 certain toxics in packaging pursuant to section 27-3425 of this title 37 as of the dates set forth therein. 38 2. Beginning two years after the required program implementation date 39 as contemplated by subdivision three of section 27-3407 of this title 40 and in no event later than three years after the effective date of this 41 title, and annually thereafter, the department shall utilize this infor- 42 mation obtained pursuant to paragraphs (b), (c), (d), (e), (f) and (g) 43 of subdivision three of section 27-3405 of this title, and any other 44 information available to the department, with input from the advisory 45 council, to produce an annual report to be shared with the legislature 46 and posted publicly on the department's website. 47 3. The department shall establish and maintain the minimum recyclables 48 list by regulation. The department shall update this list annually, 49 after the initial organization's plan is first approved, considering 50 recommendations from organizations and the advisory council. The minimum 51 recyclables list may vary by geographic region depending on regional 52 markets and regional collection and processing infrastructure, but shall 53 in all cases meet the requirements of subdivision one of section 27-3431 54 of this title. 55 4. In the event that the department determines that the organization 56 no longer meets the requirements of this title, or fails to implementA. 5322--C 20 1 and administer the requirements of this title in a manner that effectu- 2 ates the purposes of this title, after reasonable opportunity to cure 3 such deficiencies, the department shall revoke its approval of such 4 organization and, subject to the contingency plan contemplated by para- 5 graph (w) of subdivision four of section 27-3407 of this title, shall 6 select a new organization pursuant to section 27-3403 of this title. 7 § 27-3421. Statewide packaging reduction, reuse, and recycling needs 8 assessment. 9 1. No later than one year after the effective date of this title and 10 every five years thereafter, the department shall complete or cause to 11 be completed a statewide packaging material reduction, reuse, and recy- 12 cling needs assessment to determine the current state of packaging mate- 13 rial reuse, recycling, and disposal, identify barriers and opportunities 14 to reduce the amount of packaging material discarded and disposed of, 15 and increase the reusability and recyclability of packaging material. 16 2. The needs assessment, at a minimum, shall cover the following: 17 (a) The current recycling rate for each type of packaging material; 18 (b) The amount, by weight and material type, of packaging material 19 recycled at each recycling facility that accepts discarded packaging 20 material generated in the state; 21 (c) The processing capacity, market conditions, and opportunities in 22 the state and regionally for recyclable materials generally, and packag- 23 ing material categories specifically; 24 (d) The net cost of end-of-life management of discarded packaging 25 material in the state, including the cost associated with the 26 collection, transportation, sortation, recycling, littering, landfill- 27 ing, or incineration of discarded packaging; 28 (e) The availability of opportunities in the recycling and reuse 29 system for minority- and women-owned businesses; 30 (f) Current barriers affecting recycling access and availability in 31 the state; 32 (g) Current barriers to the marketability of recyclable materials 33 generated in the state; 34 (h) Opportunities for the creation of packaging material reuse and 35 refill programs in the state; 36 (i) Opportunities for the improvement of packaging material recycling 37 in the state, including the development of end markets for recycled 38 packaging materials; 39 (j) Current barriers affecting the creation and implementation of 40 packaging material reuse and refill programs; 41 (k) Consumer education needs in the state with respect to packaging 42 material waste reduction, recycling, and reducing contamination in recy- 43 cling, and reuse and refill systems for packaging material; and 44 (l) Landfill capacity. 45 3. The cost incurred by the department associated with conducting the 46 needs assessment shall be paid for by the organization. 47 4. The department shall report the results of the needs assessment to 48 the public, the state legislature, and the governor, and shall post the 49 results on its website. 50 § 27-3423. Education and outreach program. 51 1. The organization shall develop and implement an educational 52 outreach program designed to educate the public about waste reduction 53 and improve the effectiveness of local government recycling and, at a 54 minimum, include:A. 5322--C 21 1 (a) Educational and informational materials for consumers related to 2 reducing the amount of packaging discarded, recycled, and disposed of in 3 the state; 4 (b) A description of the environmental, social, economic, and environ- 5 mental justice impacts associated with improper disposal of packaging 6 material and failure to reuse or recycle packaging materials; 7 (c) Information on the proper end-of-life management of packaging 8 material, including reuse, recycling, composting, and disposal; 9 (d) The location and availability of curbside collection and addi- 10 tional drop-off collection opportunities for packaging material, includ- 11 ing deposit and take-back programs; 12 (e) How to prevent litter of packaging material in the process of 13 collection; 14 (f) Recycling instructions that are consistent statewide, except as 15 necessary to take into account differences among local laws and process- 16 ing capabilities, easy to understand, and easily accessible; and 17 (g) Any other information required by the department. 18 2. The educational outreach program shall incorporate, at a minimum, 19 electronic, print, web-based and social media elements, including for 20 use by local governments at their discretion, as well as including a 21 variety of outreach and education tools. Such educational outreach 22 programs shall ensure materials are widely accessible and available in 23 multiple languages. 24 3. The educational outreach program shall be coordinated with and 25 assist local government programs, local government contracted programs, 26 solid waste collection companies, and other entities providing services. 27 4. The educational outreach program shall be developed to ensure 28 disadvantaged communities receive targeted outreach and support. 29 5. The educational outreach program shall include a plan to work with 30 producers to label or mark packaging material, in accordance with 31 reasonable labeling standards, with information to assist consumers in 32 responsibly managing and recycling covered products. 33 6. The organization shall consult with local governments on the devel- 34 opment of educational materials and may coordinate with local govern- 35 ments on outreach and communication. 36 7. The organization shall be authorized to provide producers and 37 retailers with educational materials related to the responsible 38 reduction, reuse, recycling, or disposal of discarded packaging materi- 39 al. The educational and informational materials provided to the retailer 40 under this subdivision may include, but need not be limited to, printed 41 materials, signage and templates of materials that can be reproduced by 42 retailers and provided thereby to consumers at the time of a product's 43 purchase, and advertising materials that promote and encourage consumers 44 to properly reuse, recycle, or dispose of packaging material. 45 8. The organization shall make information on relevant tax credits and 46 other business incentives available to producers. 47 § 27-3425. Prohibition on certain toxic substances and materials. 48 1. Notwithstanding title two of article thirty-seven of this chapter 49 to the contrary, (a) Beginning three years after the promulgation of 50 rules and regulations pursuant to this title, no person or entity shall 51 sell, offer for sale, or distribute into the state any packaging 52 containing any of the following toxic substances or materials as an 53 intentionally added substance: 54 (i) Ortho-phthalates; 55 (ii) Bisphenols; 56 (iii) Per- and polyfluoroalkyl substances (PFAS);A. 5322--C 22 1 (iv) Heavy metals and compounds, including lead, hexavalent chromium, 2 cadmium, and mercury, but excluding copper phthalocyanine (chemical 3 abstracts service registry number 147-14-8); 4 (v) Benzophenone and its derivatives; 5 (vi) Halogenated flame retardants; 6 (vii) Perchlorate; 7 (viii) Formaldehyde; 8 (ix) Toluene; 9 (x) Antimony and compounds; 10 (xi) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol); 11 (xii) Polyvinyl chloride, including polyvinylidene chloride; 12 (xiii) Polystyrene but exluding EPS (expanded polystyrene); or 13 (xiv) Polycarbonate. 14 (b) Beginning five years after the promulgation of rules and regu- 15 lations pursuant to this title, no person or entity shall sell, offer 16 for sale, or distribute into the state any packaging containing any of 17 the toxic substances listed in paragraph (a) of this subdivision, even 18 if they are not an intentionally added substance, at or above a level 19 that the department shall establish by regulation that is the lowest 20 level that can feasibly be achieved; provided, however, that the depart- 21 ment shall review such level every five years to determine whether it 22 should be lowered. 23 2. (a) There is hereby established within the department a toxic pack- 24 aging task force to review the toxicity in packaging in the state, and 25 to recommend to the department the designation of additional toxic 26 substances which shall be subject to the same prohibition as those 27 substances listed in subdivision one of this section. 28 (b) The toxic packaging task force shall have nine members, one of 29 whom shall be the commissioner or their designee who shall be chair, and 30 one of whom shall be the commissioner of health or their designee. The 31 other members shall include: (i) a representative of the packaging 32 industry; (ii) a representative of an environmental justice organiza- 33 tion; (iii) a representative from the chemical industry; (iv) a profes- 34 sional or academic expert in toxicology; and (v) a professional or 35 academic expert in public health risk assessment; all of whom shall be 36 appointed by the commissioner. The remaining members shall be persons 37 with significant professional or academic expertise in maternal or child 38 health, epidemiology, chemical safety or public health policy, one of 39 whom shall be appointed by the temporary president of the senate and one 40 of whom shall be appointed by the speaker of the assembly. Appointments 41 to the toxic packaging task force are term limited to five consecutive 42 years of service. 43 (c) The task force shall meet at least twice per year to review and 44 recommend to the department whether (i) there are additional toxic 45 substances or classes of toxic substances for use in packaging that 46 should no longer be sold, offered for sale, distributed for sale, or 47 distributed for such use in this state, and (ii) there should be 48 substance or material-specific exceptions to the prohibitions provided 49 for in subdivision one of this section, provided such recommendation may 50 be made only upon a demonstration of substantial and convincing evidence 51 that such substance or material does not meet the criteria for classi- 52 fication as a toxic substance or material. 53 3. (a) Within one hundred eighty days of the toxic packaging task 54 force recommending the designation of an additional toxic substance, the 55 department shall adopt rules and regulations to designate such substance 56 as a toxic substance under this section and prohibit the use of suchA. 5322--C 23 1 toxic substance in packaging in the same manner as those toxic 2 substances listed in subdivision one of this section, with an effective 3 date no later than two years after the date of such recommendation, 4 unless the department determines that such two-year period would be 5 unduly burdensome, in which case the department shall establish an 6 effective date for such prohibition no later than four years after the 7 date of such recommendation. 8 (b) The department may evaluate recommendations from the toxic packag- 9 ing task force for exceptions as provided in paragraph (c) of subdivi- 10 sion two of this section, and upon a demonstration of substantial and 11 convincing evidence that such substance or material does not meet the 12 criteria for classification as a toxic substance or material, may adopt 13 rules and regulations to except such substance as a toxic substance or 14 material. 15 4. Any producer that violates this section, or any rules or regu- 16 lations promulgated pursuant to this section, shall be subject to a fine 17 for each violation not to exceed ten thousand dollars per violation. For 18 the purposes of this section, each product line that is sold, offered 19 for sale, or distributed to consumers, via retail commerce, in the 20 state, including through an internet transaction shall be considered a 21 separate violation. 22 § 27-3427. Non-reusable packaging reduction standards. 23 1. Each individual producer is required to meet the following packag- 24 ing reduction requirements: 25 (a) Beginning three years after the program implementation date set 26 forth in subdivision three of section 27-3407 or January first of the 27 third year following the date on which a producer first registers with 28 an organization if a producer registers after the program implementation 29 date, such producer shall reduce the amount of primary plastic packaging 30 material, and the amount of all other packaging material, in each case, 31 by ten percent either on a company-wide basis or by unit weight, for all 32 packaging materials used to contain, protect, deliver, present, or 33 distribute the products they sell, offer for sale, or distribute for 34 sale in the state. 35 (b) Beginning five years after the program implementation date set 36 forth in subdivision three of section 27-3407 or January first of the 37 fifth year following the date on which a producer first registers with 38 an organization if a producer registers after the program implementation 39 date, such producer shall reduce the amount of primary plastic packaging 40 material, and the amount of all other packaging material, in each case, 41 by fifteen percent either on a company-wide basis or by unit weight, for 42 all packaging materials used to contain, protect, deliver, present, or 43 distribute the products they sell, offer for sale, or distribute for 44 sale in the state. 45 (c) Beginning eight years after the program implementation date set 46 forth in subdivision three of section 27-3407 or January first of the 47 eighth year following the date on which a producer first registers with 48 an organization if a producer registers after the program implementation 49 date, such producer shall reduce the amount of primary plastic packaging 50 material, and the amount of all other packaging material, for all mate- 51 rials used to contain, protect, deliver, present, or distribute the 52 products they sell, offer for sale, or distribute for sale into the 53 state, in each case, by twenty percent either on a company-wide basis or 54 by unit weight, for all packaging materials used to contain, protect, 55 deliver, present, or distribute the products they sell, offer for sale, 56 or distribute for sale in the state.A. 5322--C 24 1 (d) Beginning ten years after the program implementation date set 2 forth in subdivision three of section 27-3407 or January first of the 3 tenth year following the date on which a producer first registers with 4 an organization if a producer registers after the program implementation 5 date, such producer shall reduce the amount of primary plastic packaging 6 material, and the amount of all other packaging material, for all mate- 7 rials used to contain, protect, deliver, present, or distribute the 8 products they sell, offer for sale, or distribute for sale into the 9 state, in each case, by twenty-five percent either on a company-wide 10 basis or by unit weight for all packaging materials used to contain, 11 protect, deliver, present, or distribute the products they sell, offer 12 for sale, or distribute for sale in the state. 13 (e) Beginning twelve years after the program implementation date set 14 forth in subdivision three of section 27-3407 or January first of the 15 twelfth year following the date on which a producer first registers with 16 an organization if a producer registers after the program implementation 17 date, such producer shall reduce the amount of primary plastic packaging 18 material, and the amount of all other packaging material, for all mate- 19 rials used to contain, protect, deliver, present, or distribute the 20 products they sell, offer for sale, or distribute for sale into the 21 state, in each case, by thirty percent either on a company-wide basis or 22 by unit weight, for all packaging materials used to contain, protect, 23 deliver, present, or distribute the products they sell, offer for sale, 24 or distribute for sale in the state. 25 2. The reductions required by this section shall be measured against 26 the packaging material the producer used during the first year such 27 producer registered with an organization. 28 3. These reductions shall be achieved by eliminating single-use pack- 29 aging material, including secondary or tertiary packaging material, 30 elimination of packaging material components, reduction of packaging 31 material components, or by transitioning to reusable or refillable pack- 32 aging systems. Reductions may also be achieved by substituting plastic 33 packaging material with non-plastic packaging material. However, the 34 reductions required by this section shall not be achieved by substitut- 35 ing non-plastic materials with plastic materials or substituting recycl- 36 able materials with non-recyclable materials. 37 4. The department may adjust the reduction performance requirements in 38 subdivision one of this section by rulemaking based on information gath- 39 ered through the needs assessment or provided in producer plans and 40 reports, and/or based on consideration of environmental, technical and 41 economic conditions. An adjustment to the reduction performance targets 42 may not adjust the reduction requirement to less than ten percent or 43 more than thirty percent. 44 5. In the case of a producer for which, as of the effective date of 45 this title or upon entry into the market after such effective date, a 46 portion of its packaging is reusable and contained within a reuse and 47 refill system, such producer may apply to the department for a waiver 48 from the packaging reduction requirements set forth in subdivision one 49 of this section with respect to that percentage of its packaging, by 50 unit weight, which is contained within a reuse and refill system. 51 6. In the case of a producer that demonstrates in a manner satisfac- 52 tory to the department that, for the period beginning ten years prior to 53 the effective date of this title and ending on the date which is two 54 years after the effective date of this title, the producer reduced the 55 amount of packaging used to contain, protect, deliver, present, or 56 distribute the products the producer sells, offers for sale, or distrib-A. 5322--C 25 1 utes for sale into the state, such producer may apply to the department 2 for a waiver from the packaging reduction requirements of this section 3 with respect to that percentage of its packaging, by unit weight, which 4 was reduced during such twelve-year period. 5 7. A producer may apply to the department for a waiver from the 6 reduction requirements of this section if compliance is impossible due 7 to federal law or otherwise conflicts with federal law. Such waiver 8 must be applied for annually. In such application the producer shall 9 provide the department and the advisory council with sufficient informa- 10 tion, in the determination of the department in consultation with the 11 advisory council, to make a determination on such application, including 12 proof that the producer has taken all feasible actions to achieve the 13 reductions required by this section. 14 8. Nothing in this section shall preclude a producer from going beyond 15 the reduction standards in subdivision one of this section. 16 § 27-3429. Recycled content standards. 17 1. Each individual producer shall meet the recycling content targets 18 contained in this section. 19 2. Beginning two years after promulgation of rules and regulations 20 pursuant to this title: 21 (a) all glass containers manufactured in the state used by the produc- 22 er shall contain, on average, at least thirty-five percent post-consumer 23 recycled content; 24 (b) all paper carryout bags sold, offered for sale, or given away free 25 in the state by a producer shall contain, on average, at least forty 26 percent post-consumer recycled content; except that a paper carryout bag 27 that holds eight pounds or less shall only be required to contain, on 28 average, at least twenty percent post-consumer recycled content; and 29 (c) all plastic trash bags sold or offered for sale in the state by a 30 producer shall contain, on average, at least twenty percent post-consum- 31 er recycled content. 32 3. The requirements of this section shall not apply to reusable or 33 refillable packaging or containers. 34 4. Beginning two years after plan implementation begins for the 35 initial organization, the department is authorized, in consultation with 36 the advisory council, to: 37 (a) establish content requirements for materials not listed in subdi- 38 vision two of this section; and 39 (b) modify the post-consumer recycled content targets for the materi- 40 als set forth in subdivision two of this section, provided that modifi- 41 cations do not result in a lesser percentage or an earlier year for the 42 respective target. 43 § 27-3431. Recyclability criteria and packaging recycling requirements. 44 1. Beginning two years after the promulgation of rules and regulations 45 pursuant to this title, packaging materials used by a producer shall 46 meet the following recyclability criteria: 47 (a) be capable of being sorted by entities that process recyclable 48 material generated in the state; 49 (b) have a consistent regional market for purchase, by end users in 50 the production of new products; 51 (c) not contain the following: 52 (i) opaque or pigmented polyethylene terephthalate; 53 (ii) oxo-degradable additives, including oxo-biodegradable additives; 54 (iii) polyethylene terephthalate glycol in rigid packaging;A. 5322--C 26 1 (iv) label constructions, including adhesives, inks, materials and 2 formats, or features that render a package non-recyclable or disruptive 3 to the recycling process; and 4 (v) DoPS - polystyrene, excluding EPS (expanded polystyrene); 5 (d) meet the post-consumer content requirements of this title; and 6 (e) any other criteria determined by the department. 7 2. Each individual producer shall be required to meet the following 8 recycling rate standards: 9 (a) With respect to the producer's non-plastic packaging: 10 (i) Beginning January first, two thousand twenty-nine, a minimum of 11 thirty-five percent of packaging material reported by the producer or an 12 organization as supplied into the state shall be reused or recycled, 13 with a minimum of five percent being reused; 14 (ii) Beginning January first, two thousand thirty-six, a minimum of 15 fifty percent of packaging material reported by the producer or an 16 organization as supplied into the state shall be reused or recycled, 17 with a minimum of ten percent being reused; and 18 (iii) Beginning January first, two thousand fifty-one, a minimum of 19 seventy-five percent of packaging material reported by the producer or 20 an organization as supplied into the state shall be reused or recycled, 21 with a minimum of twenty percent being reused. 22 (b) With respect to plastic packaging: 23 (i) Beginning January first, two thousand twenty-nine, a minimum of 24 twenty-five percent of plastic packaging material reported by the 25 producer or an organization as supplied into the state shall be reused 26 or recycled; 27 (ii) Beginning January first, two thousand thirty-six, a minimum of 28 fifty percent of plastic packaging material reported by the producer or 29 an organization as supplied into the state shall be reused or recycled; 30 and 31 (iii) Beginning January first, two thousand fifty-one, a minimum of 32 seventy-five percent of plastic packaging material reported by the 33 producer or an organization as supplied into the state shall be reused 34 or recycled. 35 3. The department may adjust the recycling rates in subdivision two of 36 this section by rulemaking based on information gathered through the 37 needs assessment or provided in producer plans and reports, and/or based 38 on consideration of environmental, technical and economic conditions. An 39 adjustment to the statewide recycling and reuse performance targets may 40 not adjust the recycling rate target to less than thirty percent or more 41 than seventy-five percent. 42 4. A producer may apply to the department for a waiver from the recy- 43 cling rate requirements of this section if compliance is impossible due 44 to federal law or otherwise conflicts with federal law. Such waiver 45 shall be applied for annually. In such application the producer shall 46 provide the department and the advisory council with sufficient informa- 47 tion, in the determination of the department in consultation with the 48 advisory council, to make a determination on such application, including 49 proof that the producer has taken all feasible actions to achieve the 50 reductions required by this section. 51 5. The requirements of subdivision two of this section shall not apply 52 to reusable or refillable packaging or containers. 53 § 27-3433. Establishment of the office of recycling inspector general. 54 1. The commissioner shall establish an independent office of recycling 55 inspector general within the department. The recycling inspector general 56 shall evaluate the programs and organizations created pursuant to thisA. 5322--C 27 1 title on an annual basis and shall ensure such programs are functioning 2 properly, and that all organizations and producers are in compliance 3 with the requirements of this title. 4 2. The recycling inspector general shall have the authority to inves- 5 tigate the compliance of producers and the organization with all 6 provisions of this title and to bring enforcement actions for violations 7 of this title pursuant to the provisions of section 27-3435 of this 8 title. A violation by the organization as the result of actions by one 9 or more producers shall be enforceable by the recycling inspector gener- 10 al as violations against such producers. 11 § 27-3435. Penalties and enforcement. 12 1. Failure to comply with the requirements of this title shall subject 13 the organization or an individual producer to penalties for violations. 14 The department, recycling inspector general, or attorney general, may 15 conduct investigations, including inspecting operations, facilities, and 16 records of producers and organizations, and performing audits of produc- 17 ers and organizations, to determine whether such producers and organiza- 18 tions are complying with the requirements of this title. 19 2. The department, the recycling inspector general, or the attorney 20 general, shall notify an organization or producer of any conduct or 21 practice that does not comply with the requirements of this title and of 22 any inconsistencies identified in an audit. 23 3. The department, the recycling inspector general, and the attorney 24 general, may issue a notice of violation to, and impose an administra- 25 tive civil penalty not to exceed one thousand dollars per day per 26 violation on any entity not in compliance with this title or any of the 27 regulations the department adopts to implement this title. For the 28 purposes of this section, each product line that is sold, offered for 29 sale, or distributed to consumers via retail commerce in the state, 30 including through an internet transaction, shall be considered a sepa- 31 rate violation. 32 4. Civil penalties under this section shall be assessed by the depart- 33 ment after an opportunity to be heard pursuant to the provisions of 34 section 71-1709 of this chapter, or by the court in any action or 35 proceeding pursuant to section 71-2727 of this chapter, and in addition 36 thereto, such person or entity may by similar process be enjoined from 37 continuing such violation and any permit, registration or other approval 38 issued by the department may be revoked or suspended or a pending 39 renewal denied. 40 § 27-3437. Rules and regulations. 41 1. Within eighteen months after the effective date of this section, 42 the department shall promulgate all rules and regulations necessary to 43 implement, administer, and enforce the provisions of this title. 44 2. When promulgating rules pursuant to the provisions of this section, 45 the department shall solicit input from the public of any draft rule or 46 regulation to implement this section, including at a minimum a ninety- 47 day comment period and one public hearing on such draft rules. 48 § 27-3439. State preemption. 49 Jurisdiction in all matters pertaining to costs and funding mechanisms 50 of packaging reduction and recycling organizations relating to the 51 recovery of packaging materials shall, by this title, be vested exclu- 52 sively in the state; provided, however, that nothing in this title shall 53 preclude any city, town, village or other local planning units from 54 determining what materials shall be included for recycling in a local 55 government recycling collection program or shall preclude any personA. 5322--C 28 1 from coordinating, for recycling or reuse, the collection of packaging 2 materials and products. 3 § 27-3441. Other assistance programs. 4 Nothing in this title shall impact any producer eligibility for any 5 state or local incentive or assistance program to which they are other- 6 wise eligible. 7 § 27-3443. Antitrust protections. 8 A producer shall not be liable for any claim of a violation of anti- 9 trust, restraint of trade, or unfair trade practice arising from conduct 10 undertaken in order to comply with this title; provided, however, this 11 section shall not apply to any agreement establishing or affecting the 12 price of packaging material, or the output or production of any agree- 13 ment restricting the geographic area or customers to which packaging 14 material will be sold. 15 § 27-3445. Severability. 16 The provisions of this title shall be severable and if any phrase, 17 clause, sentence or provision of this title or the applicability thereof 18 to any person or circumstance shall be held invalid, the remainder of 19 this title and the application thereof shall not be affected thereby. 20 § 3. The environmental conservation law is amended by adding a new 21 section 37-0202 to read as follows: 22 § 37-0202. Applicability. 23 This article shall only have effect to the extent that the prohibi- 24 tions in this title are not otherwise substantially given effect or in 25 conflict with the provisions of title thirty-four of article twenty-sev- 26 en of this chapter. 27 § 4. This act shall take effect immediately.
