Bill Text: NY A06436 | 2023-2024 | General Assembly | Introduced
Bill Title: Enacts a mattress collection program; requires mattress producers to establish a plan for the convenient and cost-effective recycling of used mattresses.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-01-03 - referred to environmental conservation [A06436 Detail]
Download: New_York-2023-A06436-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6436 2023-2024 Regular Sessions IN ASSEMBLY April 6, 2023 ___________ Introduced by M. of A. PAULIN -- read once and referred to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to establishing a mattress collection program The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 27 of the environmental conservation law is amended 2 by adding a new title 34 to read as follows: 3 TITLE 34 4 MATTRESS COLLECTION PROGRAM 5 Section 27-3401. Definitions. 6 27-3403. Producer plan. 7 27-3405. Producer responsibilities. 8 27-3407. Retailer, distributor and wholesaler responsibilities. 9 27-3409. Department responsibilities. 10 27-3411. Mattress collection program advisory board. 11 27-3413. Multi-state cooperation. 12 27-3415. Enforcement and penalties. 13 27-3417. Rules and regulations. 14 § 27-3401. Definitions. 15 As used in this title: 16 1. "Brand" means a name, symbol, word, or mark that attributes the 17 product to the owner or licensee of the brand as the producer. 18 2. "Collection site" means a permanent location in the state at which 19 a consumer may discard covered products. 20 3. "Consumer" means a person located in the state who purchases, owns, 21 leases, or uses covered products, including but not limited to an indi- 22 vidual, a business, corporation, limited partnership, not-for-profit 23 corporation, the state, a public corporation, public school, school EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10633-01-3A. 6436 2 1 district, private or parochial school or board of cooperative educa- 2 tional services or governmental entity, but does not include a retailer 3 or person that acquires a covered product solely for purposes of recycl- 4 ing. 5 4. "Covered product" means a mattress. 6 5. "Discarded covered product" means a covered product that a consumer 7 has used and discarded in the state. 8 6. "Distributor" or "wholesaler" means a person who buys or otherwise 9 acquires a covered product and sells or offers to sell such product to 10 retailers in this state. 11 7. "Energy recovery" means the process by which all or a portion of 12 solid waste materials are processed or combusted in order to utilize the 13 heat content or other forms of energy derived from such solid waste 14 materials. 15 8. "Good faith effort" means all reasonable and economically practical 16 efforts by a mattress recycling organization to implement an approved 17 program. 18 9. (a) "Mattress" means any resilient material, or combination of 19 materials that is enclosed by ticking, used alone or in combination with 20 other products, and that is intended for or promoted for sleeping upon. 21 Mattress includes any foundation and any used mattress. For the purposes 22 of this title, a "foundation" means a ticking-covered structure used to 23 support a mattress or sleep surface. A foundation may include 24 constructed frames, foam, box springs, or other materials, used alone or 25 in combination. 26 (b) Mattress shall not include: 27 (i) an unattached mattress pad or mattress topper that is intended to 28 be used with, or on top of a mattress; 29 (ii) a crib or bassinet mattress or car bed; 30 (iii) juvenile products, including: a carriage, basket, dressing 31 table, stroller, playpen, infant carrier, lounge pad, crib bumper, and 32 the pads for those juvenile products; 33 (iv) a product containing liquid- and gaseous-filled ticking, includ- 34 ing a waterbed and air mattress that does not contain upholstery materi- 35 al between the ticking and the mattress core; or 36 (v) a fold-out sofa bed or futon. 37 10. "Producer" means any person who manufactures or renovates a 38 covered product that is sold, offered for sale, or distributed to a 39 consumer in this state. "Producer" includes: 40 (a) the owner of a trademark or brand under which a covered product is 41 sold, offered for sale, or distributed in this state, whether or not 42 such trademark or brand is registered in the state; and 43 (b) any person who imports a covered product into the United States 44 that is sold or offered for sale in the state and that is manufactured 45 by a person who does not have a presence in the United States. 46 11. "Proprietary information" means information that is a trade secret 47 or is production, commercial or financial information, that if disclosed 48 would impair the competitive position of the submitter and would make 49 available information not otherwise publicly available. 50 12. "Recycle" means to separate, dismantle or process the materials, 51 components or commodities contained in covered products for the purpose 52 of preparing the materials, components or commodities for use or reuse 53 in new products or components. "Recycle" does not include energy recov- 54 ery or energy generation by any means, including but not limited to, 55 combustion, incineration, pyrolysis, gasification, solvolysis, waste toA. 6436 3 1 fuel or any chemical conversion process, or landfill disposal of 2 discarded covered products or discarded product component materials. 3 13. "Recycler" means a person that engages in recycling. 4 14. "Recycling rate" means the percentage of discarded covered 5 products that is managed through recycling or reuse, as defined by 6 subdivisions twelve and seventeen of this section, and is computed by 7 dividing the amount of discarded covered products collected and recycled 8 or reused by the total amount of discarded covered products collected 9 and reported to the department by the landfills and solid waste facili- 10 ties in the state over a program year. 11 15. "Representative organization" means a not-for-profit organization 12 established by a producer or group of producers to implement the 13 mattress collection program. 14 16. "Retailer" means any person who sells or offers for sale a covered 15 product to a consumer in the state. 16 17. "Reuse" means donating or selling a discarded covered product back 17 into the market for its original intended use, when the discarded 18 covered product retains its original performance characteristics and can 19 be used for its original purpose. 20 18. "Sale" or "sell" means a transfer of title to a covered product 21 for consideration, including a remote sale conducted through a sale 22 outlet, catalog, website, by telephone or through similar electronic 23 means. "Sale" or "sell" includes a lease through which a covered product 24 is provided to a consumer in the state by a producer, distributor, 25 wholesaler, or retailer. 26 19. "Ticking" means the outermost layer of fabric or materials of a 27 mattress. Ticking does not include any layer of fabric or material 28 quilted together with, or otherwise attached to the outermost layer of 29 fabric or material of a mattress. 30 20. "Upholstery material" means all material loose or attached between 31 the ticking and the core of the mattress. 32 § 27-3403. Producer plan. 33 1. No later than one year after the effective date of this section, a 34 producer, either individually or cooperatively with one or more produc- 35 ers, or a representative organization shall submit to the department for 36 the department's approval a plan for the establishment of a mattress 37 collection program that meets the collection requirements described in 38 this section. 39 2. A producer may satisfy the mattress collection program requirement 40 of this section by agreeing to participate collectively with other 41 producers. Any such collective mattress collection program shall notify 42 the department. 43 3. A producer or representative organization shall update the plan, as 44 needed, when there are changes proposed to the current program. A new 45 plan or amendment will be required to be submitted to the department for 46 approval when: 47 (a) There is a revision of the program's goals; or 48 (b) Every five years from the date of approval of a previous plan. 49 4. The plan submitted by the producer or representative organization 50 to the department under this section shall: 51 (a) Provide a list of each participating provider and brands covered 52 by the program; 53 (b) A description of the methods by which discarded covered products 54 delivered to collection sites will be collected; 55 (c) (1) i. A description of how the producer or responsible organiza- 56 tion shall provide for a convenient and cost-effective collection ofA. 6436 4 1 covered products using existing public and private waste collection 2 channels and at collection sites in the state pursuant to voluntary 3 agreements. To minimize its environmental impact, the mattress 4 collection program shall emphasize whenever practical the use of exist- 5 ing municipal waste collection infrastructure and other existing product 6 collection channels. Such description shall also include a description 7 of how the program will achieve within a reasonable period of time a 8 minimum convenience goal which ensures that all counties of the state 9 shall have at least one collection site, and within two years after the 10 program approval, not less than seventy percent of the state's residents 11 will live within a fifteen mile radius of a collection site, and within 12 three years after the program approval, not less than eighty percent of 13 the state's residents will live within a fifteen mile radius of a 14 collection site. 15 ii. Provided, however, that with respect to a city or county having a 16 population of one million or more, a convenience goal shall be estab- 17 lished for that city or county. In the case of a city, the convenience 18 goal shall be proposed after consultation with the department of sanita- 19 tion of such city. In the case of a county, the convenience goal shall 20 be proposed after consultation with an agency designated by the county 21 executive. Such proposed city and county convenience goals shall be 22 submitted to the department, which may approve, modify, or otherwise 23 establish alternative convenience goals. 24 iii. The producer or representative organization shall make a good 25 faith effort to comply with these convenience goals. 26 (2) To meet these convenience goals, the producer or representative 27 organization shall: 28 i. Enter into voluntary agreements to establish collection sites at 29 public and private solid waste facilities; transfer stations; landfills; 30 recyclables handling and recovery facilities that are permitted or 31 registered with the department; or other suitable sites for the 32 collection of discarded mattresses; 33 ii. Provide mattress storage containers at no cost to a participating 34 collection site described in clause i of this subparagraph; 35 iii. Negotiate mutually agreed upon voluntary agreements with partic- 36 ipating collection sites described in clause i of this subparagraph that 37 provide for reasonable compensation for the actual costs these 38 collection sites incur to handle, store, and (if necessary) transport 39 covered products for recycling; 40 iv. For collection sites as described in clause i of this subpara- 41 graph, and other entities such as healthcare facilities, educational 42 facilities, military facilities, junk haulers, hotels and motels that 43 provide transient lodging, and other facilities that periodically 44 replace covered products that they own or use, and who have collected at 45 least 100 recyclable covered products for recycling, provide at its 46 expense an appropriate storage container, transportation from a 47 collection point to a recycler, and services to recycle the covered 48 products; and 49 v. Enter into voluntary agreements with retailers that pick up or 50 accept covered products from consumers upon the purchase of a new 51 mattress for recycling. 52 (d) The names and locations of collections sites, transporters, and 53 recyclers who will manage discarded covered products delivered to 54 collection sites at the time of plan submission;A. 6436 5 1 (e) A description of how the discarded covered products will be safely 2 and securely transported, tracked, and handled from collection sites 3 through final recycling and processing; 4 (f) A description of the methods to be used to reuse or recycle 5 discarded covered products to ensure that the components, to the extent 6 feasible, are transformed or remanufactured into finished products for 7 use; 8 (g) A description of the methods to be used to manage or dispose of 9 discarded covered products that cannot be recycled or reused; 10 (h) A description of the outreach and educational materials that must 11 be provided to consumers, retailers, collection sites, and transporters 12 of discarded covered products, and how such outreach will be evaluated 13 for effectiveness; 14 (i) A description of how the program will meet annual performance 15 goals, as determined by the department in conjunction with the producers 16 or representative organization, after the first two years of the program 17 and updated every two years thereafter, including an estimate of 18 discarded covered products that will be collected, reused, and recycled 19 each calendar year; 20 (j) Describe what, if any, incentives will be used to encourage 21 retailer participation; 22 (k) Describe the outreach and education methods that will be used to 23 encourage municipal landfill and transfer station participation; and 24 (l) Include the amount of the program assessment to operate the 25 mattress collection program that shall be included by the retailer in 26 the price charged for all mattresses sold to consumers in the state, 27 which has been reviewed by an independent financial auditor prior to 28 submitting the plan to ensure that such program assessment does not 29 exceed the expenses, including start-up expenses, necessary to operate 30 the program over a multiyear period in a prudent and responsible manner. 31 § 27-3405. Producer responsibilities. 32 1. Beginning six months after the plan is approved under subdivision 33 four of section 27-3409 of this title, the producer or representative 34 organization shall implement the mattress collection program utilizing 35 collection sites pursuant to paragraph (c) of subdivision four of 36 section 27-3403 of this title. 37 2. A producer shall not sell, or offer for sale, a covered product to 38 any person in the state unless the producer is implementing or partic- 39 ipating under an approved plan. 40 3. The program shall be free to the consumer, convenient and adequate 41 to serve the needs of consumers in all areas of the state on an ongoing 42 basis. 43 4. A producer or representative organization shall maintain records 44 demonstrating compliance with the provisions of this title and make them 45 available for audit and inspection by the department for a period of 46 three years. The department shall make such audit records available to 47 the public upon request in accordance with the provisions of the state 48 freedom of information law and the regulations promulgated thereunder, 49 provided that confidential or business proprietary records shall be 50 exempt from this provision. Record holders shall submit the records 51 required to comply with the request within sixty working days of written 52 notification by the department of receipt of the request. 53 5. A representative organization shall use the revenue generated from 54 the program assessments collected from retailers to pay all costs asso- 55 ciated with the implementation of the mattress collection program. A 56 producer, producers or representative organization shall pay costsA. 6436 6 1 incurred by the state in the administration and enforcement of this 2 title. Exclusive of fines and penalties, the state shall only recover 3 its actual direct cost of administration and enforcement. 4 6. Any person who becomes a producer on or after July first, two thou- 5 sand twenty-three shall submit a plan to the department, or notify the 6 department that it has joined an existing plan, prior to selling or 7 offering for sale in the state any covered product, and shall comply 8 with the requirements of this title. 9 7. Within eighteen months following approval of the producer plan, and 10 annually thereafter, a producer or representative organization shall 11 submit a report to the department that includes, for the previous 12 program calendar year, a description of the program including, but not 13 limited to the following: 14 (a) a detailed description of the methods used to collect, transport, 15 and process covered products in the state, including detailing 16 collection methods made available to consumers and an evaluation of the 17 program's collection convenience; 18 (b) identification of all collection sites in the state; 19 (c) the estimated weight of all discarded covered products collected 20 and reused or recycled pursuant to the mattress collection program; 21 (d) an evaluation of whether the performance goals and recycling rates 22 have been achieved; 23 (e) the estimated weight of discarded covered products and any compo- 24 nent materials that were collected pursuant to the collection program, 25 but not recycled; 26 (f) the total cost of implementing the program; 27 (g) samples of all educational materials provided to consumers and a 28 detailed list of efforts undertaken and an evaluation of the methods 29 used to disseminate such materials including recommendations, if any, 30 for how the educational component of the program can be improved; and 31 (h) any other information required by the department that is relevant 32 to the requirements of this title. 33 8. Each producer, group of producers or representative organization 34 shall submit an annual report to the department as provided for in 35 subdivision seven of this section that assesses compliance with perform- 36 ance goals and describes any modifications necessary to achieve such 37 goals. 38 9. (a) A producer or the representative organization that organizes 39 the collection, transport and processing of mattresses, in an action 40 solely to increase the recycling of mattresses by a producer, represen- 41 tative organization, or retailer that affects the types and quantities 42 being recycled or the cost and structure of any return program shall not 43 be liable for any claim of a violation of antitrust, restraint of trade 44 or unfair trade practice arising from conduct undertaken in accordance 45 with the program pursuant to this section. 46 (b) Notwithstanding any contrary provision herein, paragraph (a) of 47 this subdivision shall not apply to any agreement establishing or 48 affecting the price of mattresses except for the approved program 49 assessment to be included by the retailer in the price charged for all 50 mattresses sold to consumers in the state or the output or production of 51 mattresses or any agreement restricting the geographic area or customers 52 to which mattresses will be sold. 53 § 27-3407. Retailer, distributor and wholesaler responsibilities. 54 1. Beginning after approval of the plan by the department no retailer, 55 distributor, or wholesaler may sell or offer for sale covered products 56 in the state unless the producer of such products is participating in aA. 6436 7 1 mattress collection program. A retailer, distributor, or wholesaler 2 shall be in compliance with this section if, on the date the covered 3 products were ordered from the producer or its agent, the producer was 4 listed on the department's website as implementing or participating in 5 an approved program. 6 2. Any retailer, distributor, or wholesaler may participate, on a 7 voluntary basis, as a designated collection site pursuant to a mattress 8 collection program and in accordance with all applicable laws and regu- 9 lations. 10 3. Upon implementation of the program, each retailer shall include in 11 the price of any mattress sold to a consumer in the state the program 12 assessment in the approved program plan. A retailer shall not deduct 13 this assessment from the purchase price. 14 4. Retailers and other sellers shall regularly remit the program 15 assessments they collect to the producer or representative organization, 16 as appropriate. 17 § 27-3409. Department responsibilities. 18 1. The department shall maintain a list of producers, retailers, 19 distributors, and wholesalers who are in compliance with this title and 20 post such list on the department's website. 21 2. The department shall post on its website the location of all 22 collection sites identified to the department by the producer in its 23 annual reports. 24 3. The department shall post on its website each producer plan 25 approved by the department. 26 4. Within ninety days after receipt of a proposed plan or plan amend- 27 ment, the department shall approve or reject such plan or plan amendment 28 based on whether such proposed plan or plan amendment satisfactorily 29 meets the requirements of subdivision four of section 27-3403 of this 30 title. If the plan or plan amendment is approved, the department shall 31 notify the producer or representative organization in writing. If the 32 department rejects the plan or plan amendment, the department shall 33 notify the producer or representative organization in writing stating 34 the reason for rejecting the plan or plan amendment. A producer or 35 representative organization whose plan is rejected shall submit a 36 revised plan to the department within thirty days of receiving a notice 37 of rejection. If the producer or representative organization fails to 38 submit a plan that is acceptable to the department because it does not 39 meet the requirements of subdivision four of section 27-3403 of this 40 title, the department shall modify a submitted plan to make it conform 41 to the requirements of such subdivision and approve it. 42 5. The department shall submit a report regarding the implementation 43 of this title in this state to the governor and legislature by April 44 first, two thousand twenty-five and every two years thereafter. The 45 report shall include, at a minimum, an evaluation of: 46 (a) The stream of covered products in the state; 47 (b) Disposal, recycling, and reuse rates in the state covered 48 products; 49 (c) A discussion of compliance and enforcement related to the require- 50 ments of this title; and 51 (d) Recommendations for any changes to this title. 52 § 27-3411. Mattress collection program advisory board. 53 1. There is hereby established within the department a mattress 54 collection program advisory board to make recommendations to the commis- 55 sioner regarding producer plans required by this title.A. 6436 8 1 2. The board shall be composed of twelve voting members. Such members 2 shall include: 3 (a) One representative of mattress producers; 4 (b) Two representatives of mattress retailers; 5 (c) One representative of mattress recyclers; 6 (d) Two representatives of mattress collectors; 7 (e) One representative of a company that utilizes discarded covered 8 products to manufacture a new product; 9 (f) One representative from a statewide environmental organization; 10 (g) One representative from a statewide waste disposal association; 11 (h) One representative from the New York product stewardship council; 12 (i) One representative from a consumer organization; and 13 (j) One representative from a statewide recycling organization. 14 3. The members shall be appointed as follows: 15 (a) Two members to be appointed by the temporary president of the 16 senate; 17 (b) Two members to be appointed by the speaker of the assembly; 18 (c) One member to be appointed by the minority leader of the senate; 19 (d) One member to be appointed by the minority leader of the assembly; 20 and 21 (e) Six members to be appointed by the governor. 22 4. Such appointments shall be made no later than the first day of 23 January following the date on which this title takes effect. The members 24 shall designate a chair from among the members by majority vote. Board 25 members shall receive no compensation but shall be entitled to their 26 necessary and actual expenses incurred in the performance of their board 27 duties. 28 5. The board shall meet at least annually by call of the chair. 29 § 27-3413. Multi-state cooperation. 30 In the event that another state implements a mattress recycling 31 program, the producers or representative organization may collaborate 32 with such state to conserve efforts and resources used in carrying out 33 the mattress collection program, provided such collaboration is consist- 34 ent with the requirements of this title. 35 § 27-3415. Enforcement and penalties. 36 Any producer who is found to not have made a good faith effort to 37 comply with any provision of or fails to perform any duty imposed pursu- 38 ant to this title shall be liable for a civil penalty not to exceed five 39 hundred dollars for each violation and an additional penalty of not more 40 than five hundred dollars for each day during which such violation 41 continues. Civil penalties under this section shall be assessed by the 42 department after a hearing or opportunity to be heard pursuant to the 43 provisions of section 71-1709 of this chapter. 44 § 27-3417. Rules and regulations. 45 The department is hereby authorized to promulgate any rules and regu- 46 lations necessary to implement this title. 47 § 2. Section 71-1701 of the environmental conservation law is amended 48 to read as follows: 49 § 71-1701. Applicability of this title. 50 This title shall be applicable to the enforcement of titles 1 through 51 11 and titles 15 through 19 of article 17; article 19; and [title] 52 titles 1 and 34 of article 27 of this chapter. 53 § 3. Section 71-1701 of the environmental conservation law, as amended 54 by chapter 795 of the laws of 2022, is amended to read as follows: 55 § 71-1701. Applicability of this title.A. 6436 9 1 This title shall be applicable to the enforcement of titles 1 through 2 11 and titles 15 through 19 of article 17; article 19; and titles 1 3 [and], 33 and 34 of article 27 of this chapter. 4 § 4. This act shall take effect immediately; provided, however, the 5 amendments to section 71-1701 of the environmental conservation law made 6 by section three of this act shall take effect on the same date and in 7 the same manner as section 2 of chapter 795 of the laws of 2022, takes 8 effect.
