Bill Text: NY S01185 | 2021-2022 | General Assembly | Amended

Bill Title: Establishes the extended producer responsibility act requiring covered materials and product producers to develop and implement strategies to promote recycling, reuse and recovery of packaging and paper products.

Spectrum: Strong Partisan Bill (Democrat 35-2)

Status: (Introduced) 2022-01-05 - REFERRED TO ENVIRONMENTAL CONSERVATION [S01185 Detail]

Download: New_York-2021-S01185-Amended.html

                STATE OF NEW YORK

            Cal. No. 240

                               2021-2022 Regular Sessions

                    IN SENATE

                                     January 8, 2021

          SEPULVEDA, SERRANO, THOMAS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
          --  committee  discharged,  bill amended, ordered reprinted as amended
          and recommitted to said committee  --  reported  favorably  from  said
          committee,  ordered  to  first  and  second report, ordered to a third
          reading, amended and ordered reprinted, retaining  its  place  in  the
          order of third reading -- again amended and ordered reprinted, retain-
          ing its place in the order of third reading

        AN  ACT  to  amend  the  environmental  conservation law, in relation to
          establishing the extended producer responsibility act

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Legislative  intent.  The legislature finds the amount of
     2  waste generated in New York is a threat to the environment. The legisla-
     3  ture further finds and declares that it is in the public interest of the
     4  state of New York for covered material and product producers  to  under-
     5  take the responsibility for the development and implementation of strat-
     6  egies  to  promote  reduction, reuse, recovery, and recycling of covered
     7  materials and products through investments  in  the  end-of-product-life
     8  management of products, printed paper, and product packaging.
     9    §  2.  Article  27 of the environmental conservation law is amended by
    10  adding a new title 33 to read as follows:
    11                                  TITLE 33
    13  Section 27-3301. Definitions.
    14          27-3303. Producer Responsibility advisory board.
    15          27-3305. Producer responsibilities.
    16          27-3307. Funding mechanism.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 1185--C                          2

     1          27-3309. Producer responsibility plan and needs assessment.
     2          27-3311. Producer responsibility plan approval.
     3          27-3313. Collection and convenience.
     4          27-3315. Outreach and education.
     5          27-3317. Reporting requirements and audits.
     6          27-3319. Antitrust protections.
     7          27-3321. Penalties.
     8          27-3323. State preemption.
     9          27-3325. Authority to promulgate rules and regulations.
    10          27-3327. Other assistance programs.
    11          27-3329. Severability.
    12  § 27-3301. Definitions.
    13    As used in this title:
    14    1. "Covered materials and products" shall include, but are not limited
    15  to, the following classes of materials:
    16    (a)  Containers  and  packaging:   any part of a package or container,
    17  regardless  of  recyclability,  that  includes  material  used  for  the
    18  containment,  protection,  handling,  delivery, or presentation of goods
    19  that are sold, offered for sale, or distributed to consumers, via retail
    20  commerce, in the state, including through an internet transaction.  This
    21  class  includes all flexible, foam, or rigid material, including but not
    22  limited to paper, carton, plastic, glass, or metal, and any  combination
    23  of such materials that:
    24    (i)  is  intended at point of sale to contain, protect, wrap, present,
    25  or deliver products from the responsible party to the ultimate  user  or
    26  consumer,  including  tertiary  packaging  used  for  transportation  or
    27  distribution directly to a consumer;
    28    (ii) is intended for single or short-term use and designed to contain,
    29  protect or wrap products, including secondary packaging intended for the
    30  consumer market; or
    31    (iii) does not include packaging used for the long-term protection  or
    32  storage of a product or with a life of not less than five years.
    33    (b) Paper products: this class includes:
    34    (i) paper and other cellulosic fibers;
    35    (ii)  containers  or packaging used to deliver printed matter directly
    36  to the ultimate consumer or recipient;
    37    (iii) paper of any description, including but not limited to:
    38    (1) flyers;
    39    (2) brochures;
    40    (3) booklets;
    41    (4) catalogs;
    42    (5) telephone directories;
    43    (6) paper fiber; and
    44    (7) paper used for writing or any other purpose.
    45    (c) Single-use plastics:  this  class  includes  plastic  products  as
    46  determined  by  the  department  through  regulations, that frequent the
    47  residential waste stream or are plastic products that have the effect of
    48  severely disrupting recycling processes, including, but not limited  to,
    49  single  use  plastic  items  such as straws, utensils, cups, plates, and
    50  plastic bags.   The producer  responsibility  organization  or  advisory
    51  board  may also make recommendations to the department regarding single-
    52  use plastics that should be covered under this title.
    53    (d) For the purpose of this title, the  products  covered  designation
    54  does not include the following:
    55    (i)  covered materials or products that could become unsafe or unsani-
    56  tary to recycle by virtue of their anticipated use;

        S. 1185--C                          3

     1    (ii) periodicals, magazines, newspapers or literary, text, and  refer-
     2  ence bound books;
     3    (iii)  beverage containers as defined in section 27-1003 of this arti-
     4  cle on which a deposit is required to be initiated;
     5    (iv) architectural paint containers collected and managed pursuant  to
     6  title twenty of this article;
     7    (v)  medical devices and covered materials and products regulated as a
     8  drug, medical device or dietary supplement by the  U.S.  Food  and  Drug
     9  Administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
    10  321  et  seq., sec. 3.2(e) of 21 U.S. Code of Federal Regulations or the
    11  Dietary Supplement Health and Education Act;
    12    (vi) animal biologics, including vaccines, bacterins, antisera,  diag-
    13  nostic  kits, and other products of biological origin, and other covered
    14  materials regulated by the United States Department of Agriculture under
    15  the Virus, Serum, Toxin Act, 21 U.S.C. 151-159;
    16    (vii) covered materials used to contain toxic or hazardous  materials,
    17  or regulated by the federal insecticide, fungicide, and rodenticide act,
    18  7  U.S.C. SEC.136 ET SEQ. or other applicable federal law, rule or regu-
    19  lation.
    20    2. "Curbside recycling" means a recycling program that serves residen-
    21  tial units, or schools, state or local agencies, or  institutions  where
    22  such  schools, state or local agencies, or institutions were eligible to
    23  be served under a contract with a municipality by a  municipality  or  a
    24  private  sector  hauler as of the effective date of this title, and such
    25  recycling program is  operated  by  a  municipality  or  pursuant  to  a
    26  contract  with  the municipality, private sector hauler, or other public
    27  agency or through approved local solid waste management plans.
    28    3. "Post-consumer material" means only those covered products or mate-
    29  rials generated by a  business  or  consumer  which  have  served  their
    30  intended  end  use  as  consumer  items and which have been separated or
    31  diverted from the waste stream for the purposes of collection and  recy-
    32  cling  as  a  secondary  material feedstock, but shall not include waste
    33  material generated during or after the completion of a manufacturing  or
    34  converting process.
    35    4.  "Post-consumer  recycled  content"  means the content of a product
    36  made from post-consumer recycled materials or feedstock.
    37    5.  "Producer" means an entity that shall  be  determined  to  be  the
    38  producer, for the purposes of this title, based on the following hierar-
    39  chy:
    40    (a)  the  person  or  company who uses the covered material or product
    41  under such person's own name or brand and who sells or offers  for  sale
    42  the product that uses covered material in the state; or
    43    (b)  the  person  or company who imports the product that uses covered
    44  material as the owner or licensee of a trademark or  brand  under  which
    45  the product is sold or distributed in the state; or
    46    (c)  the person or company that offers for sale, sells, or distributes
    47  the product that uses the covered material or product in the state.
    48    A producer shall not include a  municipality  or  a  local  government
    49  planning  unit,  or  a  registered  501(c)(3) charitable organization or
    50  501(c)(4) social welfare organization.
    51    6.  "Producer  responsibility  organization"  means  a  not-for-profit
    52  organization  designated  by  a group of producers to act as an agent on
    53  behalf of each producer to develop and implement a producer responsibil-
    54  ity plan, or a registered  501(c)(3)  charitable  organization.  To  the
    55  extent  applicable,  a producer responsibility organization shall have a
    56  governing board that represents  the  diversity  of  producers  and  the

        S. 1185--C                          4

     1  covered  materials  and  product types and such board shall include non-
     2  voting members representing a diversity of material trade associations.
     3    7.  "Readily-recyclable"  means covered materials or products included
     4  in the minimum recyclables list pursuant to  subdivision  5  of  section
     5  27-3313  of  this title.   Readily-recyclable does not include materials
     6  that contain toxic substances, as defined in this title.
     7    8. "Recovery" means the diversion of  covered  materials  or  products
     8  that might be disposed of or become waste.
     9    9.  "Recovery  rate" means the amount of covered materials or products
    10  recovered over a program year divided by the amount of product produced,
    11  expressed as a percentage.
    12    10. "Recycling" means reprocessing, by means of a manufacturing  proc-
    13  ess,  of a used material into a product, a component incorporated into a
    14  product, or  a  secondary  (recycled)  raw  material.  "Recycling",  for
    15  purposes  of  this  title,  does  not  include energy recovery or energy
    16  generation by means of combustion, use as a fuel, or  landfill  disposal
    17  of  discarded  covered materials or products or discarded product compo-
    18  nent materials or chemical conversion processes, as  determined  by  the
    19  department to not qualify in the state as recycling.
    20    11. "Recycling rate" means the percentage of discarded covered materi-
    21  als  or  products that is managed through recycling or reuse, as defined
    22  by this title, and is computed  by  dividing  the  amount  of  discarded
    23  covered  products  recycled  or  reused by the total amount of discarded
    24  covered products collected over a program year.
    25    12. "Reuse" means selling a discarded covered product  back  into  the
    26  market for its original intended use, when the discarded covered product
    27  retains its original performance characteristics and can be used for its
    28  original  purpose  or covered materials or products that are intended to
    29  be refilled for the same or similar purpose by the producer.
    30    13. "Retailer" means a person who sells or offers for sale  a  product
    31  to  a  consumer, including sales made through an internet transaction to
    32  be delivered to a consumer in the state.
    33    14. "Toxic substance" means any intentionally added chemicals  classi-
    34  fied  by  the  European  Union as carcinogens, mutagens, or reproductive
    35  toxicants pursuant to Category 1A or 1B in Annex VI to  Regulation  (EC)
    36  1272/2008  or any substance which is identified or listed as a hazardous
    37  waste or acute hazardous waste in regulations  promulgated  pursuant  to
    38  section 27-0903 of this chapter.
    39  § 27-3303. Producer responsibility advisory board.
    40    1.  There  is  hereby  established  within  the  department a producer
    41  responsibility  advisory  board,  hereinafter  the  advisory  board,  to
    42  receive and review the producer responsibility plans required under this
    43  title and to make recommendations to the department regarding the plan's
    44  approval.
    45    2.  (a)  The  advisory  board  shall  be  composed of an odd number of
    46  members and the commissioner shall appoint at least one member from each
    47  of the following: a  municipality  association  or  municipal  recycling
    48  program,  including  an  additional municipal representative from cities
    49  with a population of one million or more residents; a statewide environ-
    50  mental organization; a representative of environmental justice  communi-
    51  ties or organizations; a statewide waste disposal association; a materi-
    52  als  recovery facility located within the state of New York; a recycling
    53  collection provider; a manufacturer  of  packaging  materials  utilizing
    54  post-consumer  recycled  content;  a  manufacturer  of  paper  materials
    55  utilizing post-consumer recycled content; a consumer advocate; a retail-

        S. 1185--C                          5

     1  er; a public health specialist; and a producer or producer  responsibil-
     2  ity organization established under this title as non-voting members.
     3    (b) Appointments to the advisory board shall be made no later than one
     4  year after the effective date of this title.
     5    3.  The  advisory board shall meet at least once a year by the call of
     6  the chair or by request of more than half the voting members.
     7    4. (a) Each producer responsibility plan prepared  by  a  producer  or
     8  producer  responsibility  organization  pursuant  to this title shall be
     9  submitted to the advisory board, which shall consider whether  the  plan
    10  meets the criteria and objectives of this title.
    11    (b)  The advisory board shall, within ninety days of the submission of
    12  the producer responsibility plan, either:  (i) forward the plan  to  the
    13  commissioner  with its recommendation for approval; or  (ii) forward the
    14  plan to the commissioner with its disapproval and stated reasons  there-
    15  for,  including  any  recommended  changes  to  the  plan  necessary for
    16  approval.
    17    (c) A producer responsibility organization  may  resubmit  a  producer
    18  responsibility  plan  for  approval at any time. Upon such resubmission,
    19  the advisory board shall, within ninety days, forward the  plan  to  the
    20  commissioner with its recommendation for approval or disapproval.
    21    5.  The  advisory  board shall review the submitted annual reports and
    22  make such recommendations to the department and the  producer  responsi-
    23  bility organization for improving the plan.
    24    6. The decisions of the advisory board shall be by vote of the majori-
    25  ty of its membership.
    26  § 27-3305. Producer responsibilities.
    27    1.  Within  four  years  after  the  effective  date of this title, no
    28  producer shall sell, offer for sale, or distribute covered materials  or
    29  products  for use in New York unless the producer, or a producer respon-
    30  sibility organization acting as their designated agent, has  a  producer
    31  responsibility  plan approved by the department, upon the recommendation
    32  of the advisory board. Producers may satisfy  participation  obligations
    33  individually  or  jointly  with  other  producers  or through a producer
    34  responsibility organization.
    35    2. Producers or a  producer  responsibility  organization  shall  meet
    36  jointly with the advisory board at least annually.
    37    3.  The  producer,  or a producer responsibility organization shall be
    38  responsible for producers' compliance  with  the  requirements  of  this
    39  title,  including  the  preparation  and  implementation  of  a producer
    40  responsibility plan, the preparation and submission  of  annual  audits,
    41  and the annual reports to the department.
    42    4. Within the first four years after the department approves a produc-
    43  er  responsibility  plan,  producers  shall be required to report, on an
    44  annual basis, progress reports describing  in  detail  progress  towards
    45  meeting or exceeding the recovery, recycling, and post-consumer recycled
    46  content rates by material type. Such progress reports shall also include
    47  an  evaluation of whether they are on target to meet the approved recov-
    48  ery, recycling, and post-consumer recycled  content  rates  by  material
    49  type.  If  a  producer or producer responsibility organization is not on
    50  target to meet  the  minimum  post-consumer  recycled  material  content
    51  rates, minimum recovery or recycling rates, or other required components
    52  of  the  plan,  the department, in consultation with the advisory board,
    53  shall require an approved producer responsibility plan to be revised  or
    54  require  the  producer or producer responsibility organization to imple-
    55  ment additional measures.

        S. 1185--C                          6

     1    5. Within five  years  after  the  department  approves  the  producer
     2  responsibility  plan,  producers  shall  be required to meet the minimum
     3  recovery, recycling and post-consumer recycled material content rate for
     4  a covered material or product as  approved  by  the  department  in  the
     5  producer responsibility plan.
     6    6.  If the department has required a producer or producer responsibil-
     7  ity organization to revise their plan or meet additional measures due to
     8  failure to meet required rates established under the plan,  the  depart-
     9  ment may, after a reasonable period of time to take corrective action to
    10  cure the defaults or deficiencies, impose penalties.
    11    7.  A  producer shall be exempt from the requirements of this title if
    12  the producer:
    13    (a) Generates less than one million dollars in annual revenues;
    14    (b) Generates less than one  ton  of  covered  materials  or  products
    15  supplied to New York state residents per year; or
    16    (c)  Operates  as a single point of retail sale and is not supplied or
    17  operated as part of a franchise.
    18    8. Retailers that are not producers are exempt from  the  requirements
    19  of this title.
    20    9.  Producers may comply individually or may form a producer responsi-
    21  bility organization and discharge their responsibilities to such  organ-
    22  ization.
    23    10.  The  department  shall  establish  regulations to allow voluntary
    24  agreements to be made between responsible parties to permit a  responsi-
    25  ble  party to convey a different order of responsibility than defined in
    26  subdivision 4 of section 27-3301 of this title as long as  both  parties
    27  agree to the change in the hierarchy of responsibility.
    28  § 27-3307. Funding mechanism.
    29    1.  A producer or producer responsibility organization acting as their
    30  agent  shall  establish  program  participation  charges  for  producers
    31  through  the producer responsibility plan pursuant to section 27-3309 of
    32  this title which shall be sufficient to ensure the  obligations  of  the
    33  statewide needs assessment and the producer responsibility plan are met.
    34    2.  A  producer  responsibility  organization  shall structure program
    35  charges to provide producers with financial incentives, to reward  waste
    36  and  source  reduction and recycling compatibility innovations and prac-
    37  tices, and to disincentivize designs or practices that increase costs of
    38  managing the products or which contain toxic  substances.  The  producer
    39  responsibility organization may adjust charges to be paid by participat-
    40  ing  producers  based on factors that affect system costs. At a minimum,
    41  charges shall be variable based on:
    42    (a) Costs to provide curbside collection or other form of  residential
    43  service  that is, at minimum, as convenient as curbside collection or as
    44  convenient as the previous recycling collection plan in  the  particular
    45  jurisdiction  or as convenient as the previous refuse collection plan in
    46  the particular jurisdiction should recycling collection not be provided;
    47    (b) Costs to process a producer's covered materials  or  products  for
    48  acceptance by secondary material markets;
    49    (c)  Whether the covered material or product would typically be readi-
    50  ly-recyclable except that as a consequence of the product's design,  the
    51  product  has the effect of disrupting recycling processes or the product
    52  includes labels, inks, and adhesives containing heavy  metals  or  other
    53  toxic substances that would contaminate the recycling process;
    54    (d)  Whether the covered materials or product is specifically designed
    55  to be reusable or refillable and has high reuse or refill rate;
    56    (e) the commodity value of a covered material or product.

        S. 1185--C                          7

     1    3. The charges shall be adjusted, or the producers may be  provided  a
     2  credit,  based  upon  the  percentage of post-consumer recycled material
     3  content and such percentage of post-consumer recycled content  shall  be
     4  verified by the producer responsibility organization or through an inde-
     5  pendent  third party approved to perform verification services to ensure
     6  that such percentage exceeds the minimum  requirements  in  the  covered
     7  material, as long as the recycled content does not disrupt the potential
     8  for future recycling.
     9    4. In addition to the annual schedule of fees approved in the producer
    10  responsibility plan, the producer responsibility organization fee sched-
    11  ule  may  include a special assessment on specific categories of covered
    12  materials or products at the request of responsible entities  represent-
    13  ing  and  approved  by  the  advisory board if the nature of the covered
    14  material or product imposes unusual costs in collection or processing or
    15  requires special actions to address effective  access  to  recycling  or
    16  successful  processing  in  municipal  recycling facilities. The revenue
    17  from the special assessment shall be used to  make  system  improvements
    18  for  the  specific  covered  materials  or products on which the special
    19  assessment was applied.
    20    5. A producer responsibility organization  shall  be  responsible  for
    21  calculating  and  dispersing  funding  at a reasonable recycling program
    22  funding rate through an objective formula approved  by  the  department,
    23  and  such  reasonable  rate  may  be  varied based on population density
    24  rates, for municipal services  utilized  by  a  producer  responsibility
    25  organization if the municipality elects to be compensated by the produc-
    26  er  responsibility organization in the recovery, recycling, and process-
    27  ing of  covered  materials  and  products,  whether  such  services  are
    28  provided  directly  by  the municipality or through a contracted service
    29  provider.  If a municipality does not elect to provide service, and  has
    30  given  notice to the department of its intent, the producer responsibil-
    31  ity organization shall be responsible for  contracting  with  a  private
    32  entity  for  services  and  shall  be  responsible  for  calculating and
    33  disbursing  funding  at  a  reasonable  recycling   program   rate   for
    34  collection, recycling, recovery, and processing services provided by the
    35  private  sector entity contracted to provide such services.  The program
    36  funding mechanism shall be based on the  cost  of  residential  curbside
    37  collection, including the cost of curbside containers where relevant, as
    38  well  as  processing  cost for each readily-recyclable material, cost of
    39  handling non-readily recyclable material types collected as  part  of  a
    40  recycling  operation, transportation cost of recycling for each material
    41  type, and any other cost factors as determined  by  the  department.  To
    42  facilitate  the  producer responsibility organization's determination of
    43  the reasonable  cost  of  recycling,  participating  municipalities  and
    44  private  sector  haulers contracting with producer responsibility organ-
    45  izations shall report data related to their costs and the value of mate-
    46  rials to the producer responsibility organization.    Cost  calculations
    47  shall  take  into  consideration  the  amount  received from the sale of
    48  source separated materials.
    49    6. Any funds directly collected pursuant to this title  shall  not  be
    50  used  to carry out lobbying activities on behalf of the producer respon-
    51  sibility organization.
    52    7. No retailer may charge a point-of-sale or other fee to consumers to
    53  facilitate a producer to recoup the costs associated  with  meeting  the
    54  obligations under this title.
    55    8.  Nothing  in this title shall require a municipality to participate
    56  in a producer responsibility program.

        S. 1185--C                          8

     1    9. The department shall make such rules and regulations which  may  be
     2  necessary  for  a  producer  responsibility  organization to develop and
     3  manage a funding mechanism.
     4  § 27-3309. Producer responsibility plan and needs assessment.
     5    1.  A  statewide  needs  assessment  shall  be  conducted prior to the
     6  approval of a producer responsibility plan. The  statewide needs assess-
     7  ment shall be funded by the producers or producer responsibility  organ-
     8  ization,  and  shall be conducted by an independent third party approved
     9  by the department and shall  include  an  evaluation  of  the  capacity,
    10  costs, gaps, and needs for the following factors:
    11    (a)  Current  funding  needs,  both operational and capital, impacting
    12  recycling access and availability;
    13    (b) Existing state statutory provisions and funding sources for  recy-
    14  cling, reuse, reduction, and recovery;
    15    (c)  The collection and hauling system for recyclable materials in the
    16  state;
    17    (d) The processing capacity and infrastructure for recyclable  materi-
    18  als  in  the  state  and  regionally  and  identifying necessary capital
    19  investments to existing and future reuse and recycling infrastructure;
    20    (e) The market conditions and opportunities for  recyclable  materials
    21  in the state and regionally;
    22    (f)  Consumer  education  needs for recycling, reuse, and reduction of
    23  covered materials and products.
    24    2. Producers, or a  producer  responsibility  organization  acting  as
    25  their designated agent, shall develop and submit a producer responsibil-
    26  ity  plan  to  the  advisory board. Such plan shall cover five years and
    27  shall be reviewed by the advisory board and  updated  every  five  years
    28  following  the  approval of the original plan. The department shall have
    29  the discretion to require the plan to be reviewed or  revised  prior  to
    30  the  five  year  period  pursuant to section 27-3305 of this title.  The
    31  advisory board shall also have the discretion to recommend  revision  of
    32  the plan to the department. The submitted plan shall include, but not be
    33  limited to:
    34    (a)  contact  information  of the producer responsibility organization
    35  and the producer or producers covered under the plan;
    36    (b) a description of how comments of stakeholders were considered and,
    37  if applicable, addressed in the development of the plan;
    38    (c) a comprehensive list of the  covered  materials  or  products  for
    39  which  the producer or producer responsibility organization is responsi-
    40  ble for, which shall be included in the minimum recyclable lists  pursu-
    41  ant to section 27-3313 of this title;
    42    (d)  a  funding mechanism that allocates the costs to the producers to
    43  meet the requirements of this title and is sufficient to cover the  cost
    44  of  registering,  operating  and  updating  the  plan, and maintaining a
    45  financial reserve sufficient  to  operate  the  program  in  a  fiscally
    46  prudent and responsible manner;
    47    (e)  an  objective  formula  establishing  a reimbursement rate, which
    48  covers obligations identified in the needs  assessment  and  takes  into
    49  account  variable  regional  costs,  for participating municipalities or
    50  private sector haulers;
    51    (f) a description of the process for participating  municipalities  or
    52  private  sector haulers to recoup reasonable costs as established by the
    53  objective formula, from the producer or producer  responsibility  organ-
    54  ization,   including,   as   applicable,  any  administrative,  sorting,
    55  collection, transportation, public education, or  processing  costs,  if

        S. 1185--C                          9

     1  the  producer responsibility organization uses existing services through
     2  a municipality or obtains such services from a private sector hauler;
     3    (g) a detailed description of how the producer or the producer respon-
     4  sibility organization, consulted with the advisory board in the develop-
     5  ment  of the plan prior to its submission to the department, and to what
     6  extent the producers or the producer responsibility organization specif-
     7  ically incorporated the advisory board's input into the plan.  Producers
     8  or the producer responsibility organization shall also provide the advi-
     9  sory board a reasonable period of time to review and  comment  upon  the
    10  draft  plan  prior to its submission to the department. Producers or the
    11  producer  responsibility  organization  shall  make  an  assessment   of
    12  comments  received  and  shall  provide a summary and an analysis of the
    13  issues raised by the advisory board and significant changes suggested by
    14  any such comments, a statement of the reasons why any significant chang-
    15  es were not incorporated into the plan, and a description of any changes
    16  made to the plan as a result of such comments;
    17    (h) a proposed minimum post-consumer recycled  material  content  rate
    18  requirement,  minimum  recovery,  and minimum recycling rate for covered
    19  materials and products. The minimum  rates  shall  be  varied  for  each
    20  covered  material  and  shall  include paper products, glass, metal, and
    21  plastic;
    22    (i) a description of a public education program  pursuant  to  section
    23  27-3313 of this title;
    24    (j)  how  the  producers, or the producer responsibility organization,
    25  will work with existing waste  haulers,  material  recovery  facilities,
    26  recyclers,  and  municipalities  to operate or expand current collection
    27  programs to address material collection methods;
    28    (k) a description of how  producers  or  the  producer  responsibility
    29  organization  will use open, competitive, and fair procurement practices
    30  should they directly enter  into  contractual  agreements  with  service
    31  providers, including municipalities and private entities;
    32    (l)  a description of how a municipality will participate, on a volun-
    33  tary basis, with collection and how existing municipal  recycling  proc-
    34  essing and collection infrastructure will be used;
    35    (m)  a  description  of  how  the producer, or producer responsibility
    36  organization, plans to meet the convenience requirements  set  forth  in
    37  this title;
    38    (n)  a  description  of  how  the producer, or producer responsibility
    39  organization, will meet or exceed the minimum rates required under  this
    40  title for covered materials or product;
    41    (o) a description of the process for end-of-life management, including
    42  recycling and disposal of residuals collected for recycling, using envi-
    43  ronmentally sound management practices;
    44    (p)  a  description  of  how  the producer responsibility organization
    45  shall provide the option to purchase recycled materials from  processors
    46  on behalf of producer members interested in obtaining recycled feedstock
    47  in order to achieve post-consumer recycled content objectives;
    48    (q)  a  description of how a producer responsibility organization will
    49  work with producers to reduce packaging through product design,  systems
    50  for reusable packaging, and program innovations;
    51    (r)  a  description of how a producer responsibility organization will
    52  strategically invest in existing and future reuse and recycling  infras-
    53  tructure and market development in the state, including, but not limited
    54  to,  installing  or  upgrading  equipment  to improve sorting of covered
    55  materials and products or mitigating the impacts  of  covered  materials
    56  and  products  to  other  commodities at existing sorting and processing

        S. 1185--C                         10

     1  facilities, and capital expenditures for new technology, equipment,  and
     2  facilities;
     3    (s)  a  process  to  address concerns and questions from customers and
     4  residents; and
     5    (t) any other information as specified by the department through regu-
     6  lations.
     7    3. The department shall promulgate  a  registration  fee  schedule  to
     8  cover  administrative  costs, including a schedule for re-evaluating the
     9  fee structure on an annual basis and shall consider if  fees  should  be
    10  adjusted.   Such fees collected by the department shall only be used for
    11  the implementation, operation, and enforcement of this title,  including
    12  approved costs associated with the advisory board.
    13  § 27-3311. Producer responsibility plan approval.
    14    1.  Before rejection or approval of a producer responsibility plan can
    15  be made in accordance with this title, the producer or producer  respon-
    16  sibility organization shall submit the plan to the producer responsibil-
    17  ity advisory board.
    18    2.  Within sixty days of the advisory board making a recommendation to
    19  the department, the department shall make a determination to approve the
    20  plan as submitted; approve the plan with conditions; or deny  the  plan,
    21  with reasons for the denial. The advisory board in recommending, and the
    22  department  in approving a plan, shall consider the following in whether
    23  to approve a plan:
    24    (a) the plan adequately addresses all elements  described  in  section
    25  27-3309  of  this  title  with sufficient detail to demonstrate that the
    26  objective of the plan will be met;
    27    (b) the producer has undertaken  satisfactory  consultation  with  the
    28  advisory  board,  has  provided  an opportunity for the advisory board's
    29  input  in  the  implementation  and  operation  of  the  plan  prior  to
    30  submission  of  the  plan, and has thoroughly described how the advisory
    31  board's input will be addressed   by  and  incorporated  into  the  plan
    32  pursuant  to  paragraph  (g) of subdivision 2 of section 27-3309 of this
    33  title;
    34    (c) the plan adequately provides for: (i) the producer collecting  and
    35  funding  the  costs of collecting and processing products covered by the
    36  plan or reimbursing a municipality; (ii) the funding mechanism to  cover
    37  the  cost  of  the program; (iii) convenient and free consumer access to
    38  collection facilities or collection services; (iv)  a  formulaic  system
    39  for  equitable distribution of funds; (v) comprehensive public education
    40  and outreach; and (vi) an evaluation system for the fee structure, which
    41  shall be evaluated on an annual basis  by  the  producer  responsibility
    42  organization and re-submitted to the department annually;
    43    (d) the plan takes into consideration a post-consumer content rate and
    44  recovery  and  recycling  rates  that will create or enhance markets for
    45  recycled materials, there is a plan to adjust the minimum  rates  on  an
    46  annual  basis,  and  the plan incentives waste prevention and reduction.
    47  Such post-consumer content rates, and such  adjustments  to  the  rates,
    48  shall  take  into  consideration:    (i)  changes  in market conditions,
    49  including supply and demand for post-consumer recycled plastics,  recov-
    50  ery  rates,  and  bale availability both domestically and globally; (ii)
    51  recycling rates; (iii) the availability of recycled  materials  suitable
    52  to  meet  the minimum recycled content goals, including the availability
    53  of high-quality recycled materials, and food-grade  recycled  materials;
    54  (iv)  the capacity of recycling or processing infrastructure; (v) utili-
    55  zation rates of the material; and (vi) the progress made by producers in
    56  meeting the post-consumer recycled targets by material type;

        S. 1185--C                         11

     1    (e) the plan creates a convenient system for consumers to recycle that
     2  is, at minimum, as convenient as curbside collection or as convenient as
     3  the previous waste collection schema in the particular jurisdiction;
     4    (f)  the  plan adequately considers the state's solid waste management
     5  policy set forth in section 27-0106 of this article;
     6    (g) The department may establish additional plan requirements in addi-
     7  tion to those identified herein to fulfill the  intent  of  this  title;
     8  provided, however, that any additional requirements shall be established
     9  one year prior to a required submission of a plan unless such additional
    10  requirements  are  in relation to the power granted to the department in
    11  subdivision 4 of section 27-3305 of this title.
    12    3. No later than six months after the date the plan is  approved,  the
    13  producer,  or  producer responsibility organization, shall implement the
    14  approved plan. The department may rescind the approval  of  an  approved
    15  plan at any time with cause and documented justification.
    16  § 27-3313. Collection and convenience.
    17    A  producer  or producer responsibility organization shall provide for
    18  widespread, convenient, and equitable access to collection opportunities
    19  for the covered materials and products identified under the producer  or
    20  producer  responsibility  organization's  plan  at no additional cost to
    21  residents.  Such opportunities shall be provided to all residents of New
    22  York in a manner that is as convenient as the  collection  of  municipal
    23  solid   waste.  A  producer  responsibility  organization  shall  ensure
    24  services continue for curbside recycling programs  that  a  municipality
    25  serves  as  of  the  effective  date of this article, either directly or
    26  through a contract to provide  services,  and  that  such  services  are
    27  continued  through  the  plan.  A  producer  responsibility plan may not
    28  restrict a jurisdiction's resident's ability to contract  directly  with
    29  third  parties to obtain recycling collection services if residents have
    30  the option to enter into such contracts as of the effective date of this
    31  title, as long as the resident still  voluntarily  chooses  to  contract
    32  directly  with  the  third party. A producer responsibility organization
    33  may rely on a range of means to collect various  categories  of  covered
    34  materials  or  products  so  long  as  covered  materials  and  products
    35  collection  options  include  curbside  recycling  collection   services
    36  provided  by  municipal  programs,  municipal contracted programs, solid
    37  waste collection companies, or other approved entities as identified  by
    38  the department if:
    39    1.  The  category  of  covered  materials and products is suitable for
    40  residential curbside recycling collection and can be effectively  sorted
    41  by the facilities receiving the curbside collected material;
    42    2.  The  recycling  facility  providing processing and sorting service
    43  agrees to include the category of covered materials and products  as  an
    44  accepted material;
    45    3.  The covered materials and products category is not handled through
    46  a deposit and return  scheme  or  buy  back  system  that  relies  on  a
    47  collection system other than curbside or multi-family collection; and
    48    4.  The  provider of the residential curbside recycling service agrees
    49  to the  producer  responsibility  organization  service  provider  costs
    50  arrangement.
    51    5.  (a)  The  producer  or  producer responsibility organization shall
    52  adopt a list of  minimum  types  of  readily  recyclable  materials  and
    53  products based on available collection and processing infrastructure and
    54  recycling  markets  for  covered materials and products. The producer or
    55  producer responsibility organization shall update and adopt the list  on
    56  an annual basis, in consultation with the advisory board, in response to

        S. 1185--C                         12

     1  collection  and  processing  improvements  and  changes in recycling end
     2  markets. If there are multiple lists, the department shall  compile  the
     3  lists  and  shall  publish a compiled list to the public. Such lists may
     4  vary  by  geographic  region  depending on regional markets and regional
     5  collection and processing infrastructure.
     6    (b) All municipalities or private recycling  service  providers  shall
     7  provide for the collection and recycling of all identified materials and
     8  products  contained  on  the  list  of  minimum  recyclables,  based  on
     9  geographic regions, in order to be eligible for reimbursement; provided,
    10  however, nothing shall penalize  a  municipality  or  private  recycling
    11  service for recovering and recycling materials that are generated in the
    12  municipality  or  geographic region that are not included on the list of
    13  minimum types of recyclable covered materials or products as long as  it
    14  can  be  demonstrated that such materials have a market as determined by
    15  the department in consultation with the producer or  producer  responsi-
    16  bility  organization. Reimbursement shall cover recycling of all covered
    17  materials and products so long as the  program  includes  at  least  the
    18  minimum recyclable list.
    19    (c) The department may grant an exception of the requirements in para-
    20  graph (b) of this subdivision upon a written showing by the municipality
    21  or private recycling service that compliance with the requirement is not
    22  practicable  for  a  specific  identified product or material and if the
    23  department finds it is in the best interest of the intent of this  title
    24  to grant them an extension; provided, however, that the extension grant-
    25  ed by the department shall not exceed twelve months.
    26  § 27-3315. Outreach and education.
    27    1.  The  producer,  or  producer  responsibility  organization,  shall
    28  provide effective outreach, education, and communications  to  consumers
    29  throughout New York state regarding:
    30    (a) proper end-of-life management of covered products and materials;
    31    (b) the location and availability of curbside recycling and additional
    32  drop-off collection opportunities;
    33    (c)  how  to  prevent  litter of covered materials and products in the
    34  process of collection; and
    35    (d) recycling instructions that are: consistent statewide,  except  as
    36  necessary to take into account differences among local laws and process-
    37  ing capabilities; easy to understand; and easily accessible.
    38    2.  The  outreach  and education required pursuant to subdivision 1 of
    39  this section shall:
    40    (a) be designed to achieve the management goals  of  covered  products
    41  under  this  title, including the prevention of contamination of covered
    42  products;
    43    (b) incorporate, at  a  minimum,  electronic,  print,  web-based,  and
    44  social  media  elements  that  municipalities  could  utilize  at  their
    45  discretion;
    46    (c) be coordinated across programs to avoid confusion for consumers;
    47    (d) include, at a minimum:  consulting  on  education,  outreach,  and
    48  communications with local governments and other stakeholders; coordinat-
    49  ing  with  and  assisting local municipal programs, municipal contracted
    50  programs, solid waste collection companies, and other entities providing
    51  services; and developing and providing outreach  and  education  to  the
    52  diverse ethnic populations in the state; and
    53    (e)  a  plan  to  work  with  participating producers to label or mark
    54  covered products, in accordance with reasonable labeling standards, with
    55  information to assist consumers in responsibly  managing  and  recycling
    56  covered materials and products.

        S. 1185--C                         13

     1    3.  The producer or producer responsibility organization shall consult
     2  with municipalities on the development of educational materials and  may
     3  coordinate with municipalities on outreach and communication.
     4    4.  The  department  shall determine the effectiveness of outreach and
     5  education efforts under this section to determine  whether  changes  are
     6  necessary  to  improve  those outreach and education efforts and develop
     7  information that may be used to improve outreach and  education  efforts
     8  under this section.
     9    5.  The producer responsibility organization shall undertake outreach,
    10  education, and communications that assist in attaining or exceeding  the
    11  recovery and recycling rates.
    12  § 27-3317. Reporting requirements and audits.
    13    1. One year after a producer or producer responsibility organization's
    14  first  plan  is  approved,  and  annually  thereafter, each producer, or
    15  producer responsibility organization acting as their  designated  agent,
    16  shall submit a report to the department that details the performance for
    17  the prior year's program. The report shall be posted on the department's
    18  website  and  on the website of the producer, or producer responsibility
    19  organization acting as their designated agent. Such annual report  shall
    20  include:
    21    (a)  a  detailed description of the methods used to collect, transport
    22  and  process  covered  materials  and   products   including   detailing
    23  collection  methods made available to consumers and an evaluation of the
    24  program's collection convenience;
    25    (b) a description of the status of achieving the recovery and  recycl-
    26  ing  rates  as  set  forth  in  the plan pursuant to this title and what
    27  efforts are proposed in the event of failing to achieve such rates;
    28    (c) a description on the status of achieving the  post-consumer  recy-
    29  cled  content rates as set forth in the plan pursuant to this title, and
    30  what efforts are proposed in the event of failing to achieve such rates;
    31    (d) the amount of covered materials  and  products  collected  in  the
    32  state by material type;
    33    (e) the amount and type of covered materials and products collected in
    34  the state by the method of disposition by material type;
    35    (f)  the  total  cost of implementing the program, as determined by an
    36  independent financial audit, as performed by an independent auditor;
    37    (g) information regarding the independently audited  financial  state-
    38  ments  detailing  all  payments  received  and  issued  by the producers
    39  covered by the approved plan;
    40    (h) a copy of the independent audit;
    41    (i) a detailed description of whether the program compensates  munici-
    42  palities, solid waste collection, sorting and processing facilities, and
    43  other  approved  entities  for their recycling efforts and other related
    44  services provided by the above entities;
    45    (j) samples of all educational  materials  provided  to  consumers  or
    46  other entities;
    47    (k)  a  detailed  list  of efforts undertaken and an evaluation of the
    48  methods used to disseminate such materials including recommendations, if
    49  any, for how the educational component of the program can  be  improved;
    50  and
    51    (1)  A  detailed description of investments made in infrastructure and
    52  market development as related to this title.
    53    2. The department shall not require public reporting of any  confiden-
    54  tial  information  that the department finds to be protected proprietary
    55  information. For purposes of this title, protected proprietary  informa-
    56  tion  shall mean information that, if made public, would divulge compet-

        S. 1185--C                         14

     1  itive business information, methods or processes entitled to  protection
     2  as  trade  secrets of such producer or producer responsibility organiza-
     3  tion or information that would reasonably hinder the producer or produc-
     4  er  responsibility  organization's  competitive advantage in the market-
     5  place.
     6  § 27-3319. Antitrust protections.
     7    A producer or producer responsibility organization that organizes  the
     8  collection,  transportation,  and  procession  of  covered materials and
     9  products, in accordance with a  producer  responsibility  plan  approved
    10  under  this  title,  shall not be liable for any claim of a violation of
    11  antitrust, restraint of trade, or unfair  trade  practice  arising  from
    12  conduct  undertaken  in  accordance  with  the  program pursuant to this
    13  title; provided, however, this section shall not apply to any  agreement
    14  establishing  or  affecting the price of a covered material, product, or
    15  the output or production of any  agreement  restricting  the  geographic
    16  area or customers to which a covered material or product will be sold.
    17  § 27-3321. Penalties.
    18    1.  Except as otherwise provided in this section, any person or entity
    19  that violates any provision of or fails  to  perform  any  duty  imposed
    20  pursuant  to  this  title or any rule or regulation promulgated pursuant
    21  thereto, or any term or condition of any registration or  permit  issued
    22  pursuant thereto, or any final determination or order of the commission-
    23  er  made pursuant to this article or article 71 of this chapter shall be
    24  liable for a civil penalty not to exceed five hundred dollars  for  each
    25  violation  and  an  additional  penalty  of  not  more than five hundred
    26  dollars for each day during which such violation continues.
    27    2. (a)  Any  producer  or  producer  responsibility  organization  who
    28  violates  any provision of or fails to perform any duty imposed pursuant
    29  to this title or any rule or regulation  promulgated  pursuant  thereto,
    30  including compliance with requirements related to the producer responsi-
    31  bility  plan,  or  any  term  or condition of any registration or permit
    32  issued pursuant thereto, or any final  determination  or  order  of  the
    33  commissioner made pursuant to this article or article 71 of this chapter
    34  shall  be liable for a civil penalty not to exceed five thousand dollars
    35  for each violation and an additional penalty of not more than one  thou-
    36  sand  five  hundred  dollars  for  each  day during which such violation
    37  continues. For a second violation committed within twelve  months  of  a
    38  prior  violation,  the  producer or producer responsibility organization
    39  shall be liable for a civil penalty not to exceed ten  thousand  dollars
    40  and  an  additional  penalty of not more than three thousand dollars for
    41  each day during which such violation continues. For a  third  or  subse-
    42  quent  violation  committed within twelve months of any prior violation,
    43  the producer or producer responsibility organization shall be liable for
    44  a civil penalty not to exceed twenty thousand dollars and an  additional
    45  penalty of six thousand dollars for each day during which such violation
    46  continues.
    47    (b) All producers participating in a producer responsibility organiza-
    48  tion  shall  be  jointly and severally liable for any penalties assessed
    49  against the producer responsibility organization pursuant to this  title
    50  and article 71 of this chapter.
    51    3. Civil penalties under this section shall be assessed by the depart-
    52  ment  after  an  opportunity  to  be heard pursuant to the provisions of
    53  section 71-1709 of this chapter, or  by  the  court  in  any  action  or
    54  proceeding  pursuant to section 71-2727 of this chapter, and in addition
    55  thereto, such person or entity may by similar process be  enjoined  from
    56  continuing such violation and any permit, registration or other approval

        S. 1185--C                         15

     1  issued  by  the  department  may  be  revoked  or suspended or a pending
     2  renewal denied.
     3    4.  The  department  and the attorney general are hereby authorized to
     4  enforce the provisions of this title and all monies collected  shall  be
     5  deposited to the credit of the environmental protection fund established
     6  pursuant to section 92-s of the state finance law.
     7  § 27-3323. State preemption.
     8    Jurisdiction in all matters pertaining to costs and funding mechanisms
     9  of  producer  responsibility  organizations  relating to the recovery of
    10  covered materials shall, by this title, be  vested  exclusively  in  the
    11  state;  provided,  however,  that nothing in this section shall preclude
    12  any city, town, village or other local planning units  from  determining
    13  what  materials shall be included for recycling in a municipal recycling
    14  collection program or shall preclude any person from  coordinating,  for
    15  recycling or reuse, the collection of covered materials and products.
    16  § 27-3325. Authority to promulgate rules and regulations.
    17    The  commissioner  shall  have the power to promulgate rules and regu-
    18  lations necessary and appropriate for the administration of this title.
    19  § 27-3327. Other assistance programs.
    20    Nothing in this title shall impact an  entity's  eligibility  for  any
    21  state  or local incentive or assistance program to which they are other-
    22  wise eligible.
    23  § 27-3329. Severability.
    24    The provisions of this title shall be severable  and  if  any  phrase,
    25  clause, sentence or provision of this title or the applicability thereof
    26  to  any  person  or circumstance shall be held invalid, the remainder of
    27  this title and the application thereof shall not be affected thereby.
    28    § 3. This act shall take effect on the one hundred eightieth day after
    29  it shall have become a law.