Bill Text: NY A10185 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes an extended producer responsibility program for packaging which creates provisions related to improved recycling practices; establishes the packaging responsibility fund.
Spectrum: Partisan Bill (Democrat 28-0)
Status: (Introduced - Dead) 2022-05-05 - referred to environmental conservation [A10185 Detail]
Download: New_York-2021-A10185-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10185 IN ASSEMBLY May 5, 2022 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Englebright) -- read once and referred to the Committee on Environmental Conserva- tion AN ACT to amend the environmental conservation law, in relation to establishing an extended producer responsibility program for packag- ing; and to amend the state finance law, in relation to establishing the packaging responsibility fund 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 33 to read as follows: 3 TITLE 33 4 EXTENDED PRODUCER RESPONSIBILITY PROGRAM FOR PACKAGING 5 Section 27-3301. Definitions. 6 27-3303. Responsibilities of producers. 7 27-3305. Producer responsibility program plan. 8 27-3307. Collection and convenience. 9 27-3309. Responsibilities of the department. 10 27-3311. Funding mechanism. 11 27-3313. Non-reusable packaging reduction requirements. 12 27-3315. Recycling or post-consumer recycled material require- 13 ments. 14 27-3317. Toxic substances in packaging. 15 27-3319. Biennial producer responsibility program report. 16 27-3321. Producer compliance information. 17 27-3323. Enforcement. 18 27-3325. Labeling. 19 27-3327. Regulations. 20 § 27-3301. Definitions. 21 As used in this title: 22 1. "Compost" means the biologically stable humus-like material derived 23 from composting or the aerobic, thermophilic decomposition of organic 24 matter but shall not mean sewage, septage, or materials derived from 25 sewage or septage. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15702-01-2A. 10185 2 1 2. "Compostable" means amenable to the controlled aerobic biological 2 decomposition of organic matter through active management to produce 3 compost as certified by a third-party certifier and accepted and proc- 4 essed into compost by at least eighty percent of commercial compost 5 facilities within the state. 6 3. "Curbside recycling" means a recycling program that serves residen- 7 tial units, or schools, state or local agencies, or institutions where 8 such entities were eligible to be served under a contract with a munici- 9 pality by a municipality or a private sector hauler as of the effective 10 date of this title, and such recycling program is operated by a munici- 11 pality or pursuant to a contract with a municipality, private sector 12 hauler, or other public agency or through approved solid waste manage- 13 ment plans. 14 4. "Municipality" means a county, city, town, village, local public 15 authority or public benefit corporation, or solid waste management 16 district, that provides waste management services for a specific 17 geographical area. 18 5. "Non-reusable packaging" means packaging material that does not 19 meet the definition of "reusable". 20 6. "Packaging material" means any part of a package or container, 21 regardless of recyclability or compostability, including but not limited 22 to such material types as paper, plastic, glass or metal, that is used 23 for the containment, protection, handling, delivery, transport, distrib- 24 ution, and presentation of a product that is sold, offered for sale, or 25 distributed in the state. Bags and secondary or transport packaging 26 shall be included within this definition. Packaging material does not 27 include: 28 (a) material, or a category of material, intended to be used for long- 29 term storage or protection of a durable product that can be expected to 30 be usable for that purpose for a period of at least five years as 31 defined by the department pursuant to regulations; 32 (b) beverage containers subject to title 10 of this article; 33 (c) packaging that is reusable; 34 (d) medical devices and packaging which are included with products 35 regulated as a drug, medical device or dietary supplement by the U.S. 36 Food and Drug Administration under the Federal Food, Drug, and Cosmetic 37 Act, 21 U.S.C. 321 et seq., sec. 3.2(e) of 21 U.S. Code of Federal Regu- 38 lations or the Dietary Supplement Health and Education Act; 39 (e) animal biologics, including vaccines, bacterins, antisera, diag- 40 nostic kits, and other products of biological origin, and other covered 41 materials regulated by the United States Department of Agriculture under 42 the Virus, Serum, Toxin Act, 21 U.S.C. 151-159; and 43 (f) packaging products used to contain substances hazardous to the 44 environment, regulated pursuant to section 37-0103 of this chapter, or 45 packaging products regulated by the federal Insecticide, Fungicide, 46 and Rodenticide Act, 7 U.S.C. sec. 136 et seq. or other applicable 47 federal law, rule or regulation. 48 7. "Post-consumer recycled material" means new material produced using 49 material resulting from the recovery, separation, collection and reproc- 50 essing of material that would otherwise be disposed of or processed as 51 waste and that was originally sold for consumption. Post-consumer recy- 52 cled material does not include post-industrial material or pre-consumer 53 material, or material generated by means of combustion, incineration, 54 pyrolysis, gasification, solvolysis, chemical recycling and any high- 55 heat or chemical conversion process. 56 8. "Producer" means a person who:A. 10185 3 1 (a) manufactures or uses in a commercial enterprise, sells, offers for 2 sale, or distributes the packaging material in the state under the brand 3 of the manufacturer; or 4 (b) if paragraph (a) of this subdivision does not apply, an entity 5 that is not the manufacturer of the packaging material but is the owner 6 or licensee of a trademark under which the packaging material is used in 7 commercial enterprise, sold, offered for sale, or distributed in the 8 state, whether or not the trademark is registered; or 9 (c) if paragraphs (a) and (b) of this subdivision do not apply, an 10 entity that sells packaging in the state which is intended to be filled 11 at the point of sale; or 12 (d) if paragraphs (a), (b) and (c) of this subdivision do not apply, 13 an entity that imports the packaging material into the United States or 14 the state for use in a commercial enterprise, sale, offer for sale, or 15 distribution in the state. 16 "Producer" includes a franchisor of a franchise located in the state 17 but does not include the franchisee operating that franchise. 18 9. "Readily-recyclable" means that the department has determined that 19 the packaging material: 20 (a) can be sorted by entities that process recyclable material gener- 21 ated in the state; and 22 (b) has a consistent market for purchase, as based on data from the 23 prior two calendar years, meaning that with respect to a type of packag- 24 ing material, entities processing recyclable material are willing to 25 purchase full bales of that type of fully sorted packaging material in 26 quantities equal to or in excess of the supply of that fully sorted 27 packaging material. "Readily-recyclable" does not include packaging 28 material that facilities accept in low qualities or sort out of material 29 during additional processing steps or if facilities cannot sell a full 30 bale due to a lack of market or inability to feasibly separate those 31 materials during additional processing steps. Packaging material cate- 32 gories or types shall not be considered readily-recyclable, generally 33 recyclable, compostable, or reusable if they contain a toxic substance. 34 10. "Recycling" means the series of activities by which material is: 35 (a) collected, sorted, and processed; (b) converted into a raw materi- 36 al with minimal loss of material quality; and (c) used in the production 37 of a new product to replace the use of virgin materials, including the 38 original material. "Recycling" does not include energy recovery or ener- 39 gy generation by any means, including but not limited to combustion, 40 incineration, pyrolysis, gasification, solvolysis, waste to fuel or any 41 chemical conversion process, or landfill disposal of discarded material 42 or discarded product component materials. 43 11. "Reusable" means: 44 (a) designed to be used repeatedly for a number of use cycles that 45 exceeds the minimum number of times necessary to achieve the same over- 46 all environmental impact as the non-reusable or disposable product it 47 replaces, based on a life cycle assessment of the product's impacts from 48 extraction through production and through disposal or end of life 49 management; 50 (b) compliant with any statutory or regulatory requirements for toxic 51 substances; 52 (c) safe for washing and sanitizing according to applicable state food 53 safety laws; and 54 (d) capable of being recycled at the end of use, with the exception of 55 ceramic products.A. 10185 4 1 12. "Reuse and refill system" means a set of mechanisms designed to 2 facilitate multiple uses of a reusable container, in order to, at a 3 minimum, achieve the breakeven point for such reusable container. Mech- 4 anisms may include, but are not limited to, deposits, incentives, curb- 5 side collection, collection kiosks, refill stations, dishwashing facili- 6 ties, and re-distribution networks. 7 13. "Toxic substance" means a chemical substance identified in section 8 27-3317 of this title, or a chemical substance designated by the depart- 9 ment on the basis of identification by a government entity and/or iden- 10 tification on the basis of credible scientific evidence as being: 11 (a) a carcinogen, mutagenic, or reproductive or developmental toxi- 12 cant; 13 (b) endocrine disruptor; 14 (c) damaging to the nervous system, immune system, or organs or caus- 15 ing other systemic toxicity; 16 (d) persistent, bioaccumulative and toxic; 17 (e) highly persistent and highly mobile; 18 (f) persistent, mobile and toxic; or 19 (g) persistent and very bioaccumulative. 20 14. "Unit" means each discrete component of a package or container. 21 15. "Universal product code" or "UPC" shall have the same meaning as 22 subdivision 13 of section 27-1003 of this article. 23 16. "Waste reduction" means any action which causes a net reduction in 24 the generation of solid waste and includes, but is not limited to, 25 reducing the use of nonrecyclable materials, replacing disposable mate- 26 rials and products with reusable materials and products, reducing pack- 27 aging, and increasing the efficiency of the use of materials. Waste 28 reduction does not include replacing a recyclable material with a nonre- 29 cyclable material or a material that is less likely to be recycled, and 30 does not include a shift from a nonplastic material that currently is 31 recyclable to a plastic material. 32 § 27-3303. Responsibilities of producers. 33 1. There is hereby established a packaging producer responsibility 34 program by which producers, participating individually or collectively, 35 shall be required to make changes to their product design to reduce 36 packaging consumption and increase waste reduction, shall be required to 37 pay fees based on the amount, by weight and type, of packaging material 38 sold, offered for sale, or distributed for sale in the state and shall 39 be responsible for packaging waste disposal. 40 2. The producer or producers shall provide all information necessary 41 for the determination of the producer's payment obligations and the 42 determination of the producer's compliance with respect to this title. 43 3. Within six months of the effective date of this title, the depart- 44 ment, or a third party, shall conduct a statewide reduction, reuse and 45 recycling needs assessment, hereafter "needs assessment", to identify 46 barriers and opportunities for reducing, reusing, and recycling packag- 47 ing. The needs assessment shall at a minimum include an evaluation of 48 capacity costs, gaps and needs for the following factors: 49 (a) current barriers affecting the creation of reduction, reuse and 50 refill programs; 51 (b) opportunities for the creation of reduction, reuse and refill 52 programs; 53 (c) current municipal funding needs, both operational and capital, 54 impacting recycling access and availability and reuse and refill; 55 (d) existing state statutory provisions and funding sources for recy- 56 cling, reuse, reduction, and recovery;A. 10185 5 1 (e) the existing collecting and hauling system for recyclable materi- 2 als; 3 (f) opportunities to improve access to recycling; 4 (g) the capacity, cost, and needs associated with the collection and 5 transportation of recyclable materials in the state; 6 (h) the processing capacity, market conditions, and infrastructure for 7 recyclable materials in the state and regionally; 8 (i) current state packaging product recovery rates, recycling rates, 9 and post-consumer recycled content rates, by material type; 10 (j) accounting of greenhouse gas emissions associated with collection, 11 processing, and marketing of packaging products; 12 (k) an evaluation of state and regionally accepted recycling prac- 13 tices; 14 (l) current barriers affecting equitable access to recycling and reuse 15 programs; 16 (m) barriers to the marketability of recyclable materials generated in 17 the state, and potential solutions; 18 (n) the amount, by weight, of material that is recycled by each recy- 19 cling facility that accepts packaging material; 20 (o) consumer education needs for reuse and refill systems, recycling, 21 and reducing contamination in collected recyclable material that reduces 22 its suitability for recycling; 23 (p) the net cost of curbside collection, commercial collection, or 24 transfer station operation, on-site processing cost for each readily-re- 25 cyclable packaging material types, management cost of non-readily-re- 26 cyclable packaging, transportation cost for each packaging material, and 27 any other cost factors determined by the department; 28 (q) the availability of opportunities in the recycling and reuse 29 systems for minority- and women-owned business enterprises; and 30 (r) the location of landfills, incinerators and transfer stations 31 within the state, the socio-economic conditions where such facilities 32 are sited and the permitted pollution levels at each facility. 33 3. The department shall be responsible for updating and revising the 34 needs assessment every three years. 35 4. The department shall post the results of the needs assessment on 36 its website and issue a report to the legislature. 37 § 27-3305. Producer responsibility program plan. 38 1. Within six months of the effective date of this title, each produc- 39 er shall register with the department. 40 2. Within eighteen months of the effective date of this title, each 41 producer, either individually or acting collectively, shall submit a 42 producer responsibility program plan (hereinafter "plan") to the depart- 43 ment for approval. A producer may satisfy its obligations under this 44 title individually or collectively. 45 3. Each producer shall begin program implementation within six months 46 after the date the plan is approved or no later than two years of the 47 effective date of this title. If no plan is approved by that timeframe, 48 the producer shall be subject to penalties for noncompliance. 49 4. Any person that becomes a producer after the effective date of this 50 title shall submit an individual plan, or join with other producers, 51 within six months and begin program implementation within six months of 52 plan approval or be subject to penalties for noncompliance. 53 5. The submitted plan shall, at a minimum, address the following: 54 (a) Contact information, including the name, electronic and physical 55 address, and telephone number of the authorized representative of the 56 producer or producers.A. 10185 6 1 (b) Identify the producer or producers participating in the plan. 2 (c) A description of how the non-reusable packaging reduction require- 3 ments and recycling or post-consumer recycled material requirements are 4 addressed. 5 (d) A comprehensive list of the types and brands of packaging products 6 for which the producer or producers are responsible for, including the 7 UPCs of the products associated with each type of packaging material. 8 (e) A description of the proposed funding mechanism, identified in 9 section 27-3311 of this title that meets the requirements of this title 10 and is sufficient to cover the cost of operating the program, updating 11 the plan, and maintaining a financial reserve sufficient to operate the 12 program in a fiscally prudent and responsible manner. At a minimum, the 13 following funding mechanism details shall be provided in the plan: 14 (i) proposed program fees, listed by producer, which are based on an 15 objective formula establishing a reimbursement rate, which covers obli- 16 gations identified in the needs assessment and takes into account vari- 17 able regional costs (including at a minimum those identified in clause 18 (A) of subparagraph (iv) of this paragraph, for participating munici- 19 palities or private sector haulers, approved by the department. 20 (ii) program fees determined based on eco-modulation. For purposes of 21 this title, "eco-modulation" shall provide that program charges are 22 structured to provide producers with financial incentives that reward 23 reduction of waste at the source and recycling compatibility innovations 24 and practices, reward producers for reusable packaging products, includ- 25 ing those that are contained within a reuse and refill system and that 26 disincentivize designs or practices that increase costs of managing the 27 packaging products. 28 (iii) the producer or producers may adjust charges to be paid by 29 participating producers, or may include a credit, based on factors that 30 affect system costs. 31 (iv) program fees shall also be variable based on: 32 (A) costs to provide recycling collection or other form of consumer 33 service that is, at minimum, as convenient as the previous waste 34 collection schema in the particular jurisdiction for all consumers; 35 (B) costs to process a producer's packaging products for sale to 36 secondary material markets; 37 (C) whether the packaging product would typically be readily-recycla- 38 ble except that as a consequence of the product's design, the product 39 has the effect of disrupting recycling processes or the product includes 40 labels, inks, or adhesives containing heavy metals that would contam- 41 inate the recycling process; 42 (D) whether the packaging is specifically designed to be reusable or 43 refillable, is contained within a reuse or refill system, and has a high 44 reuse or refill rate; 45 (E) the commodity value of packaging products; and 46 (F) contributions to greenhouse gas emissions from the production, 47 use, collection, processing, and marketing of the packaging product. 48 (f) A description of the process for participating municipalities or 49 private sector haulers to recoup reasonable costs as established by the 50 needs assessment from the producer, including, as applicable, any admin- 51 istrative, sorting, collection, transportation, public education or 52 processing costs if the producer uses services through a municipality or 53 obtains such services from a private hauler; 54 (g) A description of the characteristics of each type of packaging 55 material that are relevant to the eco-modulating factors set forth 56 pursuant to section 27-3311 of this title,A. 10185 7 1 (h) A description of the producer's or producers' public outreach 2 education program for consumers and other stakeholders that will at a 3 minimum: 4 (i) be designed to achieve the management goals of packaging products 5 under this title, including the prevention of contamination of products; 6 (ii) incorporate, at a minimum, electronic, print, web-based and 7 social media elements that municipalities could utilize at their 8 discretion; 9 (iii) consult with municipalities and other stakeholders, coordinate 10 with and assist local municipal programs, municipal contracted programs, 11 solid waste collection companies, and other entities providing services, 12 and develop and provide outreach and education to the diverse popu- 13 lations in the state, including utilizing a variety of outreach and 14 education tools and ensuring materials are widely accessible and avail- 15 able in multiple languages; 16 (iv) label or mark packaging information in accordance with the 17 requirements of section 27-3325 of this title; 18 (v) include details on the following components of the outreach and 19 education program provided in the plan and make such details available 20 to consumers and other stakeholders on the producer's or producers' 21 public education program website: 22 (A) proper end-of-life management of packaging; 23 (B) the location and availability of recycling collection; 24 (C) how to prevent litter of packaging products; and 25 (D) a description of the process for answering stakeholder questions 26 and resolving any issues. 27 6. A producer implementing an individual extended producer responsi- 28 bility program or producers acting cooperatively shall undertake 29 outreach, education, and communications that assist in attaining or 30 exceeding the minimum post-consumer content, minimum recovery rates, and 31 minimum recycling rates, as specified by the department in regulation. 32 7. No later than ninety days after the submission of the plan, the 33 department shall determine whether to approve the plan as submitted; 34 approve the plan with conditions; or deny the plan. 35 8. The department shall consider the following in determining whether 36 to approve a plan: 37 (a) whether the plan adequately addresses all elements described in 38 this section; 39 (b) whether the producer or producers have undertaken satisfactory 40 consultation with the public and municipalities and have provided an 41 opportunity for input in the development of the plan prior to submission 42 of the plan; 43 (c) whether the plan adequately provides for: 44 (i) the producer or producers collecting and funding the costs of 45 collecting and processing packaging materials covered by the plan and 46 reimbursing municipalities or private haulers providing such services; 47 (ii) the funding mechanism to cover the entire cost of the producer or 48 producers' program and whether such mechanism provides for an equitable 49 distribution of funding; 50 (iii) an evaluation system for the program charge structure, which 51 shall be evaluated on an annual basis and resubmitted to the department 52 annually; 53 (iv) effective consumer outreach and education; 54 (v) whether the plan satisfactorily provides for how the producer or 55 producers implementing an individual extended producer responsibility 56 program will meet the minimum post-consumer content rates, recoveryA. 10185 8 1 rates, and recycling rates, which will create or enhance markets for 2 recycled materials; and 3 (vi) whether the plan creates a convenient system for consumers to 4 recycle packaging products that meets or exceeds the convenience crite- 5 ria set forth in section 27-3307 of this title. 6 10. The department may deny a plan. (a) If a plan is denied, the 7 department shall inform the producer or producers implementing an indi- 8 vidual extended producer responsibility program in writing as to any 9 deficiencies in such plan. The producer or producers implementing the 10 plan shall amend and resubmit any denied plans for reconsideration with- 11 in sixty days of notification of the denial of such plan. The department 12 shall approve or deny such plan within thirty days of resubmission. 13 (b) If a plan is denied a second time, the department shall provide 14 the producer or producers with direction for meeting any additional 15 required elements of the plan it deems necessary. If such requirements 16 are not met within thirty days, the producer or producers shall be 17 subject to penalties for each day such plan is delayed. 18 11. The department may rescind the approval of an approved plan at any 19 time for just cause. If a plan is rescinded, the department shall inform 20 the producer or producers in writing as to any and all reasons why the 21 plan was rescinded. The producer or producers implementing the plan 22 shall amend and resubmit any rescinded plans for reconsideration within 23 sixty days of such notification. The department shall approve or reject 24 any such amended plan within thirty days of resubmission. 25 12. The producer or producers shall notify the department of any 26 proposed modification to the program. If the department determines that 27 the plan has been substantially modified, the producer or producers 28 shall submit a proposed plan amendment describing the changes to the 29 department within ninety days of the determination. Within ninety days 30 of receipt of a proposed amended plan, the department shall determine 31 whether the amended plan complies with this title. The department shall 32 send a letter notifying the producer or producers of: (a) approval; or 33 (b) disapproval, including the reasons for rejecting the plan. The 34 producer or producers shall submit a revised plan within sixty days 35 after receipt of the letter of disapproval. 36 13. The producer or producers shall reimburse the department annually 37 at the time of annual reporting for all administrative costs associated 38 with implementation and oversight of the program. 39 14. Beginning two calendar years following the effective date of this 40 title, a producer shall not: 41 (a) sell, offer for sale, or distribute, in the state, a product 42 contained, protected, delivered, presented or distributed in or using 43 packaging material for which the producer has not complied with all 44 applicable requirements of this title; or 45 (b) sell, offer for sale, or distribute packaging for use in New York 46 unless such packaging products are in compliance with all applicable 47 requirements of this title. 48 15. No person may charge a consumer point-of-sale or point of 49 collection fee to recoup the costs associated with meeting the obli- 50 gations under this title. 51 16. A producer or producers shall annually report to the department: 52 (a) the total amount of packaging material, by weight, sold, offered 53 for sale, or distributed into the state by the producer or producers in 54 the prior calendar year;A. 10185 9 1 (b) the total amount of packaging material, by unit, sold, offered for 2 sale, or distributed into the state by the producer or producers in the 3 prior calendar year; 4 (c) the percentage of all packaging material the producer or producers 5 sold, offered for sale, or distributed for sale in the state through 6 internet transactions; and 7 (d) the following financial information: 8 (i) the total costs of implementing the program, as determined by an 9 independent financial audit; 10 (ii) a copy of the independent audit; and 11 (iii) a detailed description of whether the program compensates muni- 12 cipalities, solid waste collection, sorting and processing facilities 13 and other approved entities for their recycling efforts and other 14 related services provided and any amount of reimbursement provided. 15 17. In accordance with the regulations adopted by the department, a 16 producer or producers shall annually report to the department informa- 17 tion necessary for the department to make a determination of the produc- 18 er's or producers' compliance with: 19 (a) the non-reusable packaging reduction requirements of section 20 27-3313 of this title; 21 (b) the reuse and refill system requirements of section 27-3313 of 22 this title; 23 (c) the recycling or post-consumer recycled material requirements of 24 section 27-3315 of this title; 25 (d) the toxic substances in packaging requirements of section 27-3317 26 of this title; and 27 (e) the labeling requirements of section 27-3325 of this title. 28 18. Each producer shall pay fees, associated with the cost of the 29 needs assessment required by section 27-3311 of this title. 30 19. Notwithstanding any provision of this title to the contrary, a 31 producer shall be exempt from the requirements and prohibitions of this 32 title: 33 (a) in any calendar year in which the producer realized less than two 34 million dollars in total gross revenue during the prior calendar year; 35 or 36 (b) in any calendar year in which the producer sold, offered for sale, 37 or distributed for sale in the state during the prior calendar year 38 packaging materials/products contained, protected, delivered, presented, 39 or distributed in or using less than one ton of packaging material in 40 total; or 41 (c) if the producer is a municipality. 42 20. A producer claiming an exemption under this section shall provide 43 to the department sufficient information to demonstrate that the claim- 44 ant meets the requirements for an exemption under this section within 45 thirty days of receiving a request from the department. 46 § 27-3307. Collection and convenience. 47 A producer or producers shall provide for widespread, convenient, and 48 equitable access to collection opportunities for the packaging materials 49 identified under the producer or producers' plan at no additional cost 50 to residents. Such opportunities shall be provided to all residents of 51 New York in a manner that is as convenient as the collection of munic- 52 ipal solid waste. A producer or producers shall ensure services continue 53 for curbside recycling programs that a municipality serves as of the 54 effective date of this title, either directly or through a contract to 55 provide services, and that such services are continued through the 56 plan. A plan may not restrict a resident's ability to contract directlyA. 10185 10 1 with third parties to obtain recycling collection services if residents 2 have the option to enter into such contracts as of the effective date of 3 this title, as long as the resident still voluntarily chooses to 4 contract directly with the third party. A producer or producers may 5 rely on a range of means to collect various categories of packaging so 6 long as options for packaging material include curbside recycling 7 collection services provided by municipal programs, municipal contracted 8 programs, solid waste collection companies, or other approved entities 9 as identified by the department if: 10 1. The category of packaging materials is suitable for residential 11 curbside recycling collection and can be effectively sorted by the 12 facilities receiving the curbside collected material. 13 2. The recycling facility providing processing and sorting service 14 agrees to include the category of packaging materials as an accepted 15 material. 16 3. The packaging material is not handled through a deposit and return 17 scheme or buy back system that relies on a collection system other than 18 curbside or multi-family collection. 19 4. The provider of the residential curbside recycling service agrees 20 to participate. 21 5. (a) The producer or producers shall adopt a list of minimum types 22 of readily recyclable materials and products based on the department's 23 identification of available collection and processing infrastructure and 24 recycling markets for packaging materials. The producer or producers 25 shall update and adopt the list on an annual basis, in consultation with 26 the department, in response to collection and processing improvements 27 and changes in recycling end markets. If there are multiple lists, the 28 department shall compile the lists and shall publish a compiled list 29 to the public. Such lists may vary by geographic region depending on 30 regional markets and regional collection and processing infrastructure. 31 (b) All municipalities or private recycling service providers shall 32 provide for the collection and recycling of all identified materials and 33 products contained on the list of minimum recyclables, based on 34 geographic regions, in order to be eligible for reimbursement; provided, 35 however, nothing shall penalize a municipality or private recycling 36 service for packaging materials that are generated in the municipality 37 or geographic region that are not included on the list of minimum types 38 of recyclable packaging materials or products as long as it can be 39 demonstrated that such materials have a market as determined by the 40 department in consultation with the producer or producers. Reimbursement 41 shall cover recycling of all packaging materials so long as the program 42 includes at least the minimum recyclable list. 43 § 27-3309. Responsibilities of the department. 44 1. Within one year of the effective date of this title, the department 45 shall promulgate regulations setting recommended program fees for 46 producers to pay after consulting with multiple stakeholders, including 47 municipalities, businesses, institutions, and other extended producer 48 responsibility programs. Program fees shall be set at a rate that will 49 drive reductions in overall packaging, incentivize adoption of reuse 50 systems, increase post-consumer recycled material, and promote the use 51 of recyclable packaging. 52 2. The department shall revise recommended program fees every three 53 years, beginning three years after the first set of program fees is 54 established to reflect new data received about material use and manage- 55 ment, or whenever the targets set in sections 27-3313 and 27-3315 of 56 this title are not met to drive compliance with such targets.A. 10185 11 1 3. The department shall annually compile a list of any producer 2 noncompliance, and the steps being taken to bring noncompliant producers 3 into compliance. 4 4. The department shall annually provide a description of the infras- 5 tructure and education investments made by producers in prior calendar 6 years and an evaluation of how those investments were designed to 7 increase access to recycling and refill or reuse systems in the state. 8 5. The department shall provide an annual assessment of the progress 9 made toward the achievement of any program goals, including but not 10 limited to the requirements under sections 27-3313 and 27-3315 of this 11 title. 12 6. The department shall provide an annual assessment of the payment 13 schedule adopted by producers pursuant to section 27-3311 of this title. 14 7. The department shall provide an annual assessment of whether the 15 plan has been successful in increasing the amount of packaging material 16 that is readily recyclable, increasing the transition from non-reusable 17 to reusable packaging, and incentivizing improvements to the design of 18 packaging material. 19 8. The department shall consider any proposals for changes to the 20 program or investments in education and infrastructure designed to 21 reduce the amount of packaging material used, increase access to recycl- 22 ing, increase the recycling of or recyclability of packaging material, 23 reduce program costs, or otherwise increase program efficiency, which 24 may include an analysis of best practices for municipal recycling 25 programs and material recovery facilities. 26 9. The department shall consider the results of representative inbound 27 and outbound audits of recyclable material processed and sold by materi- 28 als recycling facilities in the state and waste characterization of 29 municipal solid waste. 30 10. The department shall review the results of a producers' third-par- 31 ty financial audits. 32 § 27-3311. Funding mechanism. 33 1. The department shall promulgate regulations setting forth the 34 manner in which recommended producer program fees on packaging materials 35 shall be calculated. Payments shall be calculated based on: 36 (a) the packaging material type; and 37 (b) the quantity of each packaging material type, by weight, that the 38 producer sells, offers for sale, or distributes in the state. 39 2. The list of packaging material types shall include, at a minimum, 40 the following materials: 41 (a) paper; 42 (b) cardboard; 43 (c) corrugated cardboard; 44 (d) generic paper/cardboard; 45 (e) wood; 46 (f) glass; 47 (g) polyethylene terephthalate (PET); 48 (h) high density polyethylene (HDPE); 49 (i) expanded polystyrene (EPS); 50 (j) polystyrene; 51 (k) bio-plastics; 52 (l) generic plastics; 53 (m) plastic film; 54 (n) other plastics; 55 (o) steel or ferrous; 56 (p) aluminum;A. 10185 12 1 (q) tinplate; and 2 (r) generic metals. 3 3. (a) Program fees shall at a minimum include: 4 (i) costs to provide curbside collection or other form of residential 5 service that is, at minimum, as convenient as curbside collection or as 6 convenient as the previous recycling collection plan in the particular 7 jurisdiction or as convenient as the previous refuse collection plan in 8 the particular jurisdiction should recycling collection not be provided; 9 (ii) costs to process packaging materials for acceptance by secondary 10 material markets; 11 (iii) whether the packaging materials would typically be readily-re- 12 cyclable except that as a consequence of the product's design, the prod- 13 uct has the effect of disrupting recycling processes or the product 14 includes labels, inks, and adhesives containing heavy metals or other 15 toxic substances that would contaminate the recycling process; 16 (iv) whether the packaging materials or product is specifically 17 designed to be reusable or refillable and has high reuse or refill rate; 18 (v) the commodity value of a packaging material or product. 19 The charges shall be adjusted, or the producers may be provided a 20 credit, based upon the percentage of post-consumer recycled material 21 content and such percentage of post-consumer recycled content shall be 22 verified by an independent third party approved to perform verification 23 services to ensure that such percentage exceeds the minimum require- 24 ments in the packaging material, as long as the recycled content does 25 not disrupt the potential for future recycling. 26 (b) Fees shall be higher for packaging material that is not readily- 27 recyclable. 28 (c) The fees for each type of packaging material shall be eco-modulat- 29 ed and structured to promote the environmental beneficial packaging 30 design in accordance with the following: 31 Fees Type of packaging 32 Fees are increased Packaging is not readily-recyclable 33 Fees are lowered Packaging is readily-recyclable 34 Packing is compostable 35 Packing incorporates post-consumer 36 recycled material 37 No fee Reusable or refillable packaging contained 38 within a reuse/refill system 39 § 27-3313. Non-reusable packaging reduction requirements. 40 1. A producer shall reduce the total amount by unit, on average and in 41 the aggregate, of non-reusable packaging across its brand in accordance 42 with the following schedule: 43 (a) by ten percent two years after the implementation of the producer 44 plan pursuant to section 27-3305 of this title; 45 (b) by at least twenty percent four years after plan implementation; 46 (c) by at least thirty percent six years after plan implementation; 47 (d) by at least forty percent eight years after plan implementation; 48 and 49 (e) by at least fifty percent ten years after plan implementation. 50 2. The reductions required by subdivision one of this section shall be 51 measured against the total amount of packaging the producer sold, 52 offered for sale, or distributed for sale in the state during the 53 respective calendar year. For producers who did not sell, offer forA. 10185 13 1 sale, or distribute for sale any packaging during the calendar year, the 2 reductions required by subdivision one of this section shall be measured 3 against the first calendar year for which there is data regarding the 4 amount of packaging the producer sold, offered for sale, or distributed 5 for sale in the state. 6 3. These reductions may be achieved by eliminating non-reusable pack- 7 aging, including secondary packaging, or by transitioning away from 8 non-reusable packaging to a reuse and refill system. 9 4. The department shall promulgate regulations that address the manner 10 in which each producer will report its compliance with the requirements 11 of this section. 12 § 27-3315. Recycling or post-consumer recycled material requirements. 13 1. Each producer shall ensure that all non-reusable packaging in the 14 aggregate, across its entire brand, either: 15 (a) is recycled at a rate consistent with the following schedule: 16 (i) fifty percent five years after implementation of the producer plan 17 pursuant to section 27-3305 of this title; 18 (ii) eighty percent eight years after plan implementation; 19 (iii) ninety percent twelve years after plan implementation; or 20 (b) incorporates, on average and in the aggregate, the following 21 amount by weight of post-consumer recycled material: 22 (i) fifty percent five years after plan implementation; 23 (ii) eighty percent five years after plan implementation; or 24 (iii) ninety percent twelve years after plan implementation. 25 2. Any producer that enters the market after the effective date of 26 this title shall meet the recycling requirements required by subdivision 27 one of this section as measured against the first calendar year for 28 which there is data regarding the amount of packaging the producer sold, 29 offered for sale, or distributed for sale in the state. 30 3. (a) For the purpose of determining a producer's compliance with the 31 post-consumer recycled material requirements of this section, a producer 32 shall rely on New York data regarding packaging sales and material use, 33 if available, or may alternatively rely on the same type of data appli- 34 cable to a region or territory of the United States that includes the 35 state of New York. 36 (b) If a producer elects to rely on data regarding packaging sales and 37 materials derived from data applicable to a region or territory of the 38 United States that includes the state of New York, the producer shall: 39 (i) pro-rate the regional or territorial data to determine New York 40 specific figures based on market share or population in a manner that 41 ensures that the percentage of post-consumer recycled material calcu- 42 lated for packaging material sold in New York is the same percentage as 43 calculated for that larger region or territory; and 44 (ii) document the methodology used to determine such New York specific 45 figures calculated under subparagraph (i) of this paragraph. 46 4. If a producer elects to comply with the provisions of this section 47 by meeting the post-consumer recycled material requirements, the depart- 48 ment may assess against a producer that fails to comply with those 49 requirements an administrative penalty calculated as follows: 50 (a) The department shall add the total amount by weight in pounds of 51 post-consumer recycled material and the total amount by weight in pounds 52 of material that is not post-consumer recycled material used by the 53 producer in all the packaging it sold, offered for sale, or distributed 54 for sale in the state during the prior calendar year. Unless otherwise 55 determined by the department, the figure calculated under this paragraph 56 shall be calculated using the information reported by the manufacturer.A. 10185 14 1 (b) The department shall multiply the figure calculated under para- 2 graph (a) of this subdivision by the minimum post-consumer recycled 3 material percentage required under paragraph (b) of subdivision one of 4 this section during the prior calendar year. 5 (c) The department shall subtract from that figure calculated under 6 paragraph (b) of this subdivision the total amount by weight in pounds 7 of post-consumer recycled material used by the producer in all products 8 it sold, offered for sale, or distributed for sale in packaging in the 9 state during the prior calendar years. 10 (d) The department shall multiply that figure calculated under para- 11 graph (c) of this subdivision by twenty cents. If the figure calculated 12 under this paragraph is less than or equal to zero, the department may 13 not assess an administrative penalty. 14 § 27-3317. Toxic substances in packaging. 15 1. Beginning December thirty-first, two thousand twenty-four, in addi- 16 tion to the requirements of title two of article thirty-seven of this 17 chapter, no person may sell, offer for sale, distribute for sale, or 18 distribute for use in this state, any packaging material containing the 19 following toxic substances above the practical quantification limit, as 20 such term is defined in section 37-0901 of this chapter: 21 (a) ortho-phthalates; 22 (b) bisphenols; 23 (c) per- and polyfluoroalkyl substances (PFAS); 24 (d) lead and lead compounds; 25 (e) hexavalent chromium and compounds; 26 (f) cadmium and cadmium compounds; 27 (g) mercury and mercury compounds; 28 (h) benzophenone and its derivatives; 29 (i) halogenated flame retardants; 30 (j) perchlorate; 31 (k) formaldehyde; and 32 (l) toluene. 33 2. Beginning one year after the effective date of this title, no 34 person may sell, offer for sale, distribute for sale, or distribute for 35 use in this state, any packaging products containing the following toxic 36 substances above the practical quantification limit, as such term is 37 defined in section 37-0901 of this chapter: 38 (a) polyvinyl chloride; 39 (b) polystyrene; or 40 (c) polycarbonate. 41 3. Beginning three years after the effective date of this title, and 42 every three years thereafter, the department shall designate at least 43 ten additional toxic substances, unless it determines there are not ten 44 chemicals that meet the definition of toxic substances. If the depart- 45 ment determines there are not ten toxic substances that meet such defi- 46 nition, it shall publish a detailed statement of findings and conclu- 47 sions supporting such determination. 48 4. Within one hundred eighty days of designating a toxic substance, 49 the department shall adopt regulations to prohibit the newly designated 50 toxic substance in packaging, with an effective date no later than two 51 years after such regulations are finalized. 52 6. Any producer that violates this section shall be subject to a fine 53 for each violation not to exceed twenty-five thousand dollars for each 54 violation. 55 § 27-3319. Biennial producer responsibility program report.A. 10185 15 1 1. Beginning one year after the implementation of the producer plan 2 pursuant to section 27-3305 of this title, and every two years thereaft- 3 er, the department shall generate a producer responsibility program 4 report. 5 2. The report shall include, at a minimum, the following information: 6 (a) a list of all participating producers and the brands of products 7 associated with those producers; 8 (b) a baseline report of the number of units of packaging and type of 9 packaging products, both non-reusable and reusable, that were sold, 10 offered for sale, or distributed into the state; 11 (c) a list of all materials that are readily-recyclable in the state; 12 (d) results of an audit of inbound and outbound recyclable material 13 processed and sold within the state; 14 (e) a waste characterization study that specifies the quantity in tons 15 of packaging material in the waste stream according to types of uses; 16 (f) a statewide litter survey that identifies the quantity of packag- 17 ing material in litter according to types of packaging material and the 18 brands which produce the material; 19 (g) a list of the amount of packaging material and packaging material 20 type sold or offered for sale within the state that year; 21 (h) a description of all funding issued pursuant to the plan; and 22 (i) the compliance of producers with the toxic substances prohibition 23 provided in section 27-3317 of this title. 24 § 27-3321. Producer compliance information. 25 1. The department shall make available on its publicly accessible 26 website a regularly updated list of UPCs of products for which the 27 department has determined the producer has complied with all applicable 28 requirements of this title and a list of producers and, where applica- 29 ble, specific products and the UPCs of those products, for which the 30 department has determined the producer has not complied with all appli- 31 cable requirements of this title. 32 2. Each producer shall annually provide to the department a certif- 33 icate of compliance signed by an authorized official stating that all 34 packaging materials meet the requirements of this title provided howev- 35 er, where compliance is achieved under an exemption provided in section 36 27-3305 of this title, the certificate shall state the specific basis 37 upon which the exemption is claimed. 38 § 27-3323. Enforcement. 39 1. The department may bring an administrative enforcement action 40 against any producer or other entity to enjoin activity in violation of 41 any provision of this title, and to assess and recover penalties as 42 provided in this title. 43 2. The office of the attorney general may bring an action in any court 44 of competent jurisdiction to enjoin any violation of the requirements of 45 this title, and to recover penalties as provided in this title. 46 3. All penalties recovered pursuant to this section shall be deposited 47 in the packaging responsibility fund. 48 § 27-3325. Labeling. 49 1. Producers shall indicate on all packaging material sold, offered 50 for sale, or distributed for sale in or into the state either: 51 (a) the percentage of post-consumer recycled material; 52 (b) whether the packaging material is readily-recyclable and how to 53 recycle such unit; or 54 (c) whether the unit is compostable. 55 2. Such labels shall be in a form deemed appropriate by the department 56 pursuant to regulations.A. 10185 16 1 3. All packaging material sold in the state shall conform with the 2 labeling requirements in this section within two years of the effective 3 date of this title. Packaging that does not meet the requirements of 4 this section may not be sold, offered for sale, or distributed for sale 5 into the state. 6 § 27-3327. Regulations. 7 1. The department shall promulgate regulations as necessary to imple- 8 ment and administer this title. 9 2. The department shall solicit input from interested parties in the 10 development of any draft regulations to implement this title, solicit 11 public comment on such draft regulations for a period of at least sixty 12 days, and hold at least one public hearing on such draft regulations. 13 3. The regulations adopted by the department pursuant to this title 14 shall include, at a minimum: 15 (a) a process for annually determining a schedule of producer 16 payments, which shall include, but not be limited to, provisions regard- 17 ing the timing of producer payments. 18 (i) The payment schedule adopted under this paragraph shall delineate 19 criteria to be used to adjust producer payments in a manner that 20 complies with section 27-3311 of this title; and 21 (ii) Shall include a description of the methods to be used to deter- 22 mine the amount reported for each type of packaging material associated 23 with its products. 24 (b) a process for a producer or producers that are unable to fully 25 satisfy the reporting requirements due to a failure to obtain sufficient 26 information regarding the characteristics of the packaging of the 27 producer's products that are sold, offered for sale, or distributed for 28 sale in or into the state to, alternatively, report to the department an 29 estimate of the total amount of such packaging based on unit quantities, 30 as long as such alternative reporting includes a description of methods 31 used by the producer to calculate the estimate; 32 (c) a process for determining on an annual basis those types of pack- 33 aging materials that are readily-recyclable which shall at a minimum 34 involve consultation with the municipalities and recycling establish- 35 ments and shall include a transitional period between the time that the 36 type of packaging material is determined to be recyclable or to not be 37 recyclable and the time that such determination shall be in effect for 38 the purposes of calculating producer payments; 39 (d) requirements for the assessment of program performance, including: 40 (i) the non-reusable packaging reduction requirements set forth in 41 section 27-3313 of this title; 42 (ii) standards for reuse and refill systems to ensure they achieve the 43 break-even point for reusable packaging; 44 (iii) the recycling or post-consumer recycled material requirements 45 set forth in section 27-3315 of this title; 46 (iv) the toxic substances in packaging requirements set forth in 47 section 27-3317 of this title; 48 (v) the labeling requirements set forth in section 27-3325 of this 49 title; and 50 (vi) material-specific recycling rates for each type of packaging 51 material for which a fee has been set pursuant to section 27-3311 of 52 this title. The material specific recycling rate goals shall reflect the 53 following recycling standards: 54 (A) sorted glass shall be considered recycled if it does not require 55 further processing before entering a glass furnace or before use in theA. 10185 17 1 production of filtration media, abrasive materials, glass fiber insu- 2 lation or construction; 3 (B) sorted metal shall be considered recycled if it does not require 4 further processing before entering a smelter or furnace; 5 (C) sorted paper shall be considered recycled if it does not require 6 further processing before entering a pulping operation; and 7 (D) plastic separated by polymer shall be considered recycled if it 8 does not require further processing before entering a pelletization, 9 extrusion or molding operation, or in the case of plastic flakes, does 10 not require further processing before use in a final product; 11 (e) requirements for the producer to conduct representative audits of 12 recyclable material processed and sold by facilities that process 13 recyclable material generated in the state, of municipal solid waste 14 disposed of in the state, and waste littered in the state, which shall 15 include, at minimum: 16 (i) provisions regarding the sampling techniques to be used in those 17 audits, which must include random sampling; and 18 (ii) for audits of recyclable materials, provisions regarding: 19 (A) how such audits shall be designed to collect information regarding 20 the extent to which recycled material processed and sold by those facil- 21 ities reflects the tons of each type of packaging material collected in 22 the state for recycling and the amount of each type of packaging materi- 23 al recycled in the state, as well as the ultimate destination of and 24 intended use for such recycled material; 25 (B) how such audits shall be designed so that information collected 26 through the audit of one facility shall not be used to infer information 27 about a different facility that uses different processing equipment, 28 different sorting processes, or different staffing levels to conduct 29 processing; 30 (C) for audits of municipal solid waste, provisions regarding how such 31 audits will be designed to collect information regarding the types and 32 amount, by weight, of packaging in the waste stream and the percentage 33 by weight of the waste stream that is composed of packaging; and 34 (D) for audits of waste littered in the state, provisions regarding 35 how such audits will be designed to collect information regarding the 36 packaging material type by amount, weight, in sampled litter, identifi- 37 cation of the producer or producers of the packaging in sampled litter, 38 if identifiable, and an evaluation based on those audits regarding the 39 areas of the state in which litter accumulation is greatest; 40 (f) a process by which the producer or producers shall develop and 41 submit for department review and a process by which the department shall 42 review and approve or deny: (i) a proposed investment in recycling 43 infrastructure and education and (ii) a proposed investment in reusable 44 or refillable infrastructure and education. The process shall set forth 45 the manner in which the producer or producers are required to solicit 46 and incorporate input in the development of proposed investments from 47 producers, recycling establishments, and municipalities; 48 (g) a process for soliciting information necessary for, and a process 49 for rendering a determination regarding: 50 (i) a producer's compliance with the non-reusable packaging reduction 51 requirements of section 27-3313 of this title; 52 (ii) a producer's compliance with the reuse and refill system require- 53 ments of section 27-3313 of this title; 54 (iii) a producer's compliance with the recycling or post-consumer 55 recycled material requirements of section 27-3315 of this title;A. 10185 18 1 (iv) a producer's compliance with the toxic substances in packaging 2 requirements of section 27-3317 of this title; and 3 (v) a producer's compliance with the labeling requirements of section 4 27-3325 of this title; 5 (h) a process for determining how the producer or producers will 6 distribute funds to municipalities; and 7 (i) a process for determining the minimum number of reuse or refill 8 cycles required for each type of packaging material to be considered 9 reusable or refillable, pursuant to section 27-3313 of this title. 10 § 2. The state finance law is amended by adding a new section 92-kk to 11 read as follows: 12 § 92-kk. Packaging responsibility fund. 1. There is hereby established 13 in the joint custody of the comptroller and the commissioner of the 14 department of taxation and finance a special fund to be known as the 15 packaging responsibility fund. 16 2. Such fund shall consist of all penalties collected pursuant to 17 title thirty-three of article twenty-seven of the environmental conser- 18 vation law, and any other monies deposited into the fund pursuant to 19 law. 20 3. Moneys of the fund shall be made available to fund third-party, 21 independent audits of both inbound and outbound recyclable material 22 generated in the state, disposal of both inbound and outbound materials, 23 and litter audits. Such audits shall be conducted at least every two 24 years and shall be posted on the department of environmental conserva- 25 tion's website. 26 § 3. The department of health shall, within one year of the effective 27 date of this act, examine its rules and regulations to identify any 28 barriers to the implementation of refill systems, including in food 29 production and wineries. 30 § 4. This act shall take effect immediately.
