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