STATE OF NEW YORK ________________________________________________________________________ 5398--A 2019-2020 Regular Sessions IN ASSEMBLY February 11, 2019 ___________ Introduced by M. of A. ORTIZ, ZEBROWSKI, FALL, ABINANTI, GLICK, COLTON, DINOWITZ, GRIFFIN, EPSTEIN, GOTTFRIED, TAYLOR, D'URSO, CRUZ -- Multi- Sponsored by -- M. of A. SAYEGH -- read once and referred to the Committee on Environmental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the environmental conservation law, in relation to prohibiting polystyrene waste 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 "polystyrene waste reduction act". 3 § 2. Article 27 of the environmental conservation law is amended by 4 adding a new title 20 to read as follows: 5 TITLE 20 6 POLYSTYRENE WASTE REDUCTION 7 Section 27-2001. Definitions. 8 27-2003. Prohibited disposable food service containers. 9 27-2005. Required compostable or recyclable disposable food 10 service containers. 11 27-2007. Unique packaging or financial hardship waiver. 12 § 27-2001. Definitions. 13 As used in this title: 14 1. "Affordable" means purchasable for not more than fifteen percent 15 more than the purchase cost of the non-compostable or non-recyclable 16 alternative. 17 2. "Agency" means any state department, agency, board, public benefit 18 corporation, public authority, or commission. 19 3. "Agency or municipal facility" means any building, structure or 20 vehicle owned or operated by the agency or municipality. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00006-05-9A. 5398--A 2 1 4. "Agency or municipal contractors and lessees" means any person or 2 entity that has a contract with an agency or a municipality for public 3 works or improvements to be performed, for a franchise, concession or 4 lease of property, for grant monies or goods and services or supplies to 5 be purchased at the expense of the agency or municipality or to be paid 6 out of monies deposited in the treasury or out of trust monies under the 7 control or collected by the agency or municipality. 8 5. "Agency or municipal facility food provider" means an entity that 9 provides, but does not sell, prepared food in agency or municipal facil- 10 ities. 11 6. "Chain retail food vendor" means a retail food vendor with five or 12 more locations that conduct business under the same business name or 13 operate under common ownership or management or pursuant to a franchise 14 agreement with the same franchisor. 15 7. "Compostable" means all the materials in the product or package 16 meet the American Society for Testing and Materials (ASTM) International 17 Standard Specification for Compostable Plastics D6400, and will: 18 (a) undergo degradation by biological processes during composting in 19 an appropriate municipal or industrial composting facility to yield 20 carbon dioxide, water, inorganic compounds, and biomass at a rate 21 consistent with other known compostable materials in similar facilities; 22 and 23 (b) leave no visible, distinguishable or toxic residue, including no 24 adverse impact on the ability of composts to support plant growth once 25 the finished compost is placed in soil. 26 8. "Home compostable" means all the materials in the product or pack- 27 age conform with the Vincotte OK Compost Home certification using the 28 European Norm 13432 standard, or a comparable standard as determined by 29 the department, and will: 30 (a) undergo degradation by biological processes during composting in a 31 home compost pile or device to yield carbon dioxide, water, inorganic 32 compounds, and biomass at a rate consistent with other known compostable 33 materials in similar facilities; and 34 (b) leave no visible, distinguishable or toxic residue, including no 35 adverse impact on the ability of composts to support plant growth once 36 the finished compost is placed in soil. 37 9. "Disposable food service containers" means all containers, bowls, 38 plates, trays, cartons, cups, lids and other items that are designed or 39 generally recognized by the public as being designed for one-time use to 40 hold, contain, or transport foods, including without limitation, 41 containers for takeout foods and/or leftovers from partially consumed 42 meals prepared by retail food vendors. The term "disposable food 43 service container" does not include items composed entirely of aluminum 44 or polystyrene foam coolers and ice chests that are intended for reuse. 45 10. "Municipality" means a village, town, city, or county, or any 46 designated agency thereof. 47 11. "Polystyrene foam" means blown polystyrene and expanded and 48 extruded foams that are thermoplastic petrochemical materials utilizing 49 a styrene monomer and processed by any number of techniques including, 50 but not limited to, fusion of polymer spheres, injection molding, foam 51 molding, and extrusion-blown molding. Polystyrene foam is generally 52 used to make cups, bowls, plates, trays, clamshell containers, meat 53 trays and egg cartons. Such term shall not include rigid polystyrene. 54 12. "Prepared food" means food or beverages, which are serviced, pack- 55 aged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or other- 56 wise prepared (collectively "prepared") for individual customers orA. 5398--A 3 1 consumers. For the purpose of this title, prepared food includes takeout 2 food, but does not include raw, butchered meats, pork, fish, seafood 3 and/or poultry sold from a butcher case or similar retail appliance. 4 13. "Recyclable" means material that can be sorted, cleansed and 5 reconstituted using available recycling collection programs for the 6 purpose of using the altered form in the manufacture of a new product. 7 Recycling does not include burning, incinerating, converting, or other- 8 wise thermally destroying solid waste. 9 14. "Restaurant" means any establishment that sells prepared food for 10 consumption on, near, or off its premises. For purposes of this title, 11 the term includes a restaurant operating from a temporary facility, 12 cart, vehicle or mobile unit. 13 15. "Retail food vendor" means any store, shop, sales outlet, or other 14 establishment, including a grocery store, delicatessen or restaurant 15 that sells prepared food. 16 § 27-2003. Prohibited disposable food service containers. 17 1. Retail food vendors shall not possess, sell, or offer for use 18 disposable food service containers that contain polystyrene foam. This 19 subdivision shall not apply to polystyrene foam containers used for 20 prepackaged food that have been filled and sealed prior to receipt by 21 the retail food vendors. 22 2. Agency or municipal facility food providers shall not possess, 23 sell, or offer for use disposable food service containers that contain 24 polystyrene foam. 25 3. Agencies and municipalities shall not purchase, acquire or use 26 disposable food service containers that contain polystyrene foam. 27 4. Agency or municipal contractors and lessees shall not possess, 28 sell, or offer for use disposable food service containers that contain 29 polystyrene foam in agency or municipal facilities or while performing 30 under an agency or municipal contract or lease. 31 5. Nothing in this section shall be construed to govern the activities 32 of contractors and lessees that occur outside of the state or activities 33 of contractors and lessees that occur with entities other than agencies 34 or municipalities. 35 § 27-2005. Required compostable or recyclable disposable food service 36 containers. 37 1. All retail food vendors, agencies, municipalities, agency and 38 municipal facility food providers, and municipal contractors and lessees 39 operating in municipal facilities or performing under a municipal 40 contract or lease using any disposable food service containers shall use 41 a suitable affordable compostable, home compostable, or recyclable prod- 42 uct, unless there is no suitable affordable compostable, home composta- 43 ble, or recyclable product available as determined by the department 44 pursuant to a waiver in accordance with section 27-2007 of this title. 45 2. Nothing in this section shall be construed to govern the activities 46 of contractors and lessees that occur outside of the state or activities 47 of contractors and lessees that occur with entities other than agencies 48 or municipalities. 49 § 27-2007. Unique packaging or financial hardship waiver. 50 1. Any not-for-profit corporation, regardless of its income, and any 51 retail food vendor that had a gross income under five hundred thousand 52 dollars per location on their annual income tax filing for the most 53 recent tax year and is not part of a chain retail food vendor may 54 request from the department, in a manner and form established by the 55 department, a unique packaging or financial hardship waiver of the 56 requirements of this title. Such waiver request may apply to one or moreA. 5398--A 4 1 types of disposable food service containers possessed, sold, or offered 2 for use by any such not-for-profit corporation or retail food vendor. 3 2. The department shall grant such waiver if such not-for-profit 4 corporation or retail food vendor proves: 5 (a) that no reasonably feasible alternative exists to a specific and 6 necessary type of polystyrene foam disposable food service container; or 7 (b) that there is no comparable alternative product not composed of 8 polystyrene foam that would cost the same as or less than the types of 9 disposable food service container composed of polystyrene foam and that 10 the purchase or use of an alternative product not composed of polystyr- 11 ene foam would create an undue financial hardship; or 12 (c) that there is no suitable affordable compostable, home composta- 13 ble, or recyclable product available as an alternative to any type of 14 disposable food service container. 15 3. Such unique packaging or financial hardship waiver shall be valid 16 for twelve months and shall be renewable upon application to the depart- 17 ment. A pending application for such waiver shall be a defense to any 18 notice of violation issued pursuant to this title to which such pending 19 application relates and such notice of violation shall be dismissed. 20 § 3. The environmental conservation law is amended by adding a new 21 section 71-2730 to read as follows: 22 § 71-2730. Enforcement of sections 27-2003 and 27-2005 of this chapter. 23 1. Any person who shall violate section 27-2003 or 27-2005 of this 24 chapter shall receive a warning notice for the first such violation. A 25 person shall be liable to the state of New York for a civil penalty of 26 not more than two hundred fifty dollars for the first violation after 27 receiving a warning, not more than five hundred dollars for the second 28 violation in the same calendar year, and not more than one thousand 29 dollars for each subsequent violation in the same calendar year. For the 30 purposes of this section, each commercial transaction shall constitute 31 no more than one violation. A hearing or opportunity to be heard shall 32 be provided prior to the assessment of any civil penalty. 33 2. (a) The department, the department of agriculture and markets, the 34 department of health, and the attorney general are hereby authorized to 35 enforce the provisions of sections 27-2003 and 27-2005 of this chapter. 36 (b) The provisions of section 27-2003 or 27-2005 of this chapter may 37 also be enforced by a village, town, city, or county and the local 38 legislative body thereof may adopt local laws, ordinances or regulations 39 consistent with this title providing for the enforcement of such 40 provisions. 41 3. Any fines that are collected by the state during proceedings by the 42 state to enforce the provisions of section 27-2003 or 27-2005 of this 43 chapter shall be retained by the state. Any fines that are collected by 44 a municipality during proceedings by the municipality to enforce such 45 provisions within the municipality shall be retained by the munici- 46 pality. 47 § 4. This act shall take effect on the three hundred sixty-fifth day 48 after it shall have become a law. Effective immediately the addition, 49 amendment and/or repeal of any rule or regulation necessary for the 50 implementation of this act on its effective date are authorized to be 51 made and completed on or before such date.