AB5801 Summary:

BILL NOA05801
 
SAME ASNo Same As
 
SPONSOREnglebright
 
COSPNSRLunsford, Paulin, Griffin, Kelles, Thiele, Simon, Anderson, Seawright, Burke, Perry, Hevesi, Cymbrowitz, Rozic, Barnwell, Quart, Brown, Gunther, Williams, Rosenthal L, McMahon, Steck, Gonzalez-Rojas, Fahy, Stern, Zebrowski, Epstein, Gottfried, Dinowitz, Nolan, Abinanti, Santabarbara, Carroll, Lavine, Solages, Rosenthal D, Jacobson, Burdick, Fernandez, Cusick, O'Donnell, Davila, Galef, Walker, Otis, Stirpe, Rajkumar, Glick, Jean-Pierre, Weprin, Bronson, Colton, Gallagher, Burgos, Ramos, Fall, Mamdani, Rodriguez, Sillitti, Forrest, Dilan, De La Rosa, Benedetto, Bichotte Hermelyn, Meeks, Pheffer Amato
 
MLTSPNSR
 
Add Art 27 Title 31 §§27-3101 - 27-3125, En Con L
 
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.
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AB5801 Actions:

BILL NOA05801
 
02/25/2021referred to environmental conservation
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AB5801 Committee Votes:

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AB5801 Floor Votes:

There are no votes for this bill in this legislative session.
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AB5801 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5801
 
SPONSOR: Englebright
  TITLE OF BILL: An act to amend the environmental conservation law, in relation to establishing the extended producer responsibility act   PURPOSE OR GENERAL IDEA OF BILL: This bill will establish an extended producer responsibility program for paper and packaging, which would create a circular economy for recycl- ing.   SUMMARY OF PROVISIONS: Section 1. Legislative Intent Section 2. Adds a new title 30 to the environmental conservation law establishing the extended producer responsibility (EPR) act. The Act creates an EPR program for covered products that includes packing and paper materials. Producers are prohibited from selling or distributing any covered mate- rials in New York unless they have an approved producer responsibility plan. Producers can comply with law individually or by joining a produc- er responsibility organization (PRO). The program will also create a funding mechanism to cover the costs of the program or cover the cost of a municipality for partaking in the program. The funding program will be structured in a way that includes incentives to reward producers for product design that reduce waste and increases the recyclability of the product. Charges will also be adjusted based on the post-consumer recy- cled content rate of the covered material. Producers or the PRO will submit a plan to establish the program to DEC for approval. The plans will include details on the funding mechanism, a description of how municipalities will be utilized and they will recoup costs if they decide to be utilized by the PRO, a proposed minimum recy- cling rate and post-consumer recycled content rate, and other relevant factors. DEC in approval of the plan will take into consideration current state and federal rates in regards to the proposed recycling rates and post-consumer content that will also be adjusted on an annual basis so the market continues to improve. After the implementation of the plan, no producer shall be allowed to sell or offer for sale any covered materials unless covered by a produc- er responsibility plan that has been approved by DEC. Producers or PROs will provide for convenient collection opportunities. Convenience stan- dards will be, at a minimum, the same level as provided currently to consumers. A PRO may rely on a range of means to collect categories of covered materials, including, curbside collection, depot drop-offs, or retailer take backs. Convenience standards shall also be dependent on the voluntary role of the municipality in the EPR program. The legislation specifies the details there also be an audit, education, and outreach to consumers. The legislation, in addition, requires a detailed annual report. Civil penalties can be imposed for violations of this law. Section 3. Effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):   JUSTIFICATION: The United States generates more than a quarter of a billion tons of municipal solid waste and of that waste, 33% of the waste is packaging and paper products. Furthermore, the United States generates roughly 290 million tons of solid waste, roughly a third of which is comprised of paper and plastic products. On top of that, the U.S. only recycles around 69 million tons of that waste, with the majority of the rest going to landfills. Municipalities are struggling with the burden of recycling, which has been exacerbated by the fact China has significant- ly restricted the recyclables it will accept. As a result of increased recycling costs, municipalities are faced with either increasing taxes or significantly limiting what materials they can accept. In order to prevent more waste from ending up in landfills, the recycling market must shift the end-of-life responsibility of these materials upstream to the producers by creating an extended producer responsibility (EPR) program for paper products and packaging materials. Under our current model, manufacturers are not responsible for recover- ing or recycling their products. Instead, municipalities bear the burden for collection, transportation, sorting, and processing of waste. Under an EPR program, producers will finance the recycling of their products. Producers will also be rewarded for creating easily recyclable products and contain higher percentages of post-consumer recycled material. EPR programs for paper and packaging are common throughout the world and have seen great success in Canada and Europe. The programs have proven to increase recycling rates and reduce methane emissions by limiting the waste that goes into landfills. By developing this program, New York can hope to reduce some of the worst environmental contaminants from our landfills without an additional burden on taxpayers.   PRIOR LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined.   EFFECTIVE DATE: This act shall take effect on the one hundred eightieth day after it shall have become a law.
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AB5801 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5801
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 25, 2021
                                       ___________
 
        Introduced  by  M.  of A. ENGLEBRIGHT, LUNSFORD, PAULIN, GRIFFIN -- read
          once and referred to the Committee on Environmental Conservation
 
        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  weight  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 recycling, reuse and recovery of covered  material  and
     7  products  through  investments  in the end-of-product-life management of
     8  products.
     9    § 2. Article 27 of the environmental conservation law  is  amended  by
    10  adding a new title 31 to read as follows:
    11                                  TITLE 31
    12                    EXTENDED PRODUCER RESPONSIBILITY ACT
    13  Section 27-3101. Definitions.
    14          27-3103. Producer responsibilities.
    15          27-3105. Funding mechanism.
    16          27-3107. Producer responsibility plan.
    17          27-3109. Producer responsibility plan approval.
    18          27-3111. Collection and convenience.
    19          27-3113. Outreach and education.
    20          27-3115. Reporting requirements and audits.
    21          27-3117. Antitrust protections.
    22          27-3119. Penalties.
    23          27-3121. State preemption.
    24          27-3123. Authority to promulgate rules and regulations.
    25          27-3125. Severability.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01205-01-1

        A. 5801                             2
 
     1  § 27-3101. Definitions.
     2    1. "Activity-based costs" shall mean a method of distributing the cost
     3  of  a  process among its component streams according to the share of the
     4  total cost assumed as a result of the processing of that stream.
     5    2. "Covered materials and products" shall mean any part of  a  package
     6  or  container,  regardless  of  recyclability  or  compostability,  that
     7  includes material that is used for the containment,  protection,  handl-
     8  ing,  delivery,  and  presentation  of  goods that are sold, offered for
     9  sale, or distributed to consumers in the  state,  including  through  an
    10  internet  transaction.   Covered materials and products include, but are
    11  not limited to, the following classes of materials:
    12    (a) Containers and packaging: this  class  includes  all  flexible  or
    13  rigid  material,  including  but  not limited to paper, carton, plastic,
    14  glass, or metal, and any combination of such materials that:
    15    (i) is used to contain, protect, wrap or present products at any stage
    16  in the movement of the product from the responsible party to  the  ulti-
    17  mate user or consumer, including tertiary packaging used for transporta-
    18  tion or distribution directly to a consumer;
    19    (ii)  is  intended  for  a  single  or  short-term use and designed to
    20  contain,  protect  or  wrap  products,  including  secondary   packaging
    21  intended for the consumer market; or
    22    (iii)  does not include packaging used for the long-term protection or
    23  storage of a product or with a life of not less than five years.
    24    (b) Paper products: this class includes:
    25    (i) paper and other cellulosic fibers, whether or not they are used as
    26  a medium for text or images, except books and materials in  the  newspa-
    27  pers class of materials;
    28    (ii)  containers  or packaging used to deliver printed matter directly
    29  to the ultimate consumer or recipient;
    30    (iii) paper of any description, including but not limited to:
    31    (1) flyers;
    32    (2) brochures;
    33    (3) booklets;
    34    (4) catalogs;
    35    (5) telephone directories;
    36    (6) newspapers;
    37    (7) magazines;
    38    (8) paper fiber; and
    39    (9) paper used for writing or any other purpose.
    40    (c) Plastics: this class includes any plastic  as  determined  by  the
    41  department including, but not limited to:
    42    (i) rigid plastics:
    43    (1) polyethylene terephthalate (PET);
    44    (2) polyethylene (PE);
    45    (3) polyvinyl chloride (PVC);
    46    (4) polypropylene (PP);
    47    (5) polystyrene (PS);
    48    (6) poly coated fiber;
    49    (7) multi-layered plastics;
    50    (8) other (BPA, Compostable Plastics, Polycarbonate and LEXAN);
    51    (ii) flexible plastics:
    52    (1) polyethylene (PE);
    53    (2) polyvinyl chloride (PVC);
    54    (3) polypropylene (PP);
    55    (4) poly coated fiber;
    56    (5) multi-layered plastics;

        A. 5801                             3
 
     1    (6) other (BPA, Compostable Plastics, Polycarbonate and LEXAN).
     2    (d)  For  the  purpose of this title, the products covered designation
     3  does not include the following:
     4    (i) paper products that could become unsafe or unsanitary  to  recycle
     5  by virtue of their anticipated use;
     6    (ii) literary, text, and reference bound books; and
     7    (iii)  beverage containers as defined in section 27-1003 of this arti-
     8  cle.
     9    3. "Curbside recycling" means a recycling program that  serves  single
    10  and multi-family residential units, schools, state or local agencies, or
    11  institutions  that  is operated by a municipality pursuant to a contract
    12  with the municipality, private entity, or other public agency or through
    13  approved local solid waste management plans.
    14    4. "Post-consumer recycled content" means the  content  of  a  product
    15  made of recycled materials derived from post-consumer recycled materials
    16  or feedstock.
    17    5. "Producer" means: (a) the person who manufactures the covered mate-
    18  rial  or  product under such person's own name or brand and who sells or
    19  offers for sale the covered material or product in the state; or
    20    (b) the person who imports the covered  material  or  product  as  the
    21  owner  or licensee of a trademark or brand under which the covered mate-
    22  rial or product is sold or distributed in the state; or
    23    (c) the person or company that offers for sale, sells, or  distributes
    24  the covered material or product in the state.
    25    A  producer  shall  not  include  a municipality or a local government
    26  planning unit.
    27    6.  "Producer  responsibility  organization"  means  a  not-for-profit
    28  organization  designated  by  a group of producers to act as an agent on
    29  behalf of each producer to develop and implement a producer responsibil-
    30  ity plan.
    31    7. "Readily-recyclable" means packaging that can be sorted by entities
    32  processing recyclables from New York and for which, during the  previous
    33  two  calendar  years,  there  was a consistent market, meaning recyclers
    34  were willing to pay for fully sorted  material  at  the  door  of  their
    35  facilities  in quantities equal to or in excess of material supply. This
    36  does not include material types that recyclers accept in low  quantities
    37  or  sort out of material during additional processing steps; if material
    38  recyclers do not desire a full bale of a specific  material  type,  that
    39  material type is not readily recyclable.
    40    8.  "Recycling" means to separate, dismantle or process the materials,
    41  components or commodities contained in covered products for the  purpose
    42  of  preparing  the materials, components or commodities for use or reuse
    43  in new products or  components.  "Recycling"  does  not  include  energy
    44  recovery  or  energy  generation  by  means  of  combustion, or landfill
    45  disposal of discarded covered products or  discarded  product  component
    46  materials.
    47    9. "Recycling rate" means the percentage of discarded covered products
    48  that  is  managed  through recycling or reuse, as defined by this title,
    49  and is computed by dividing the amount  of  discarded  covered  products
    50  collected  and  recycled  or  reused  by  the  total amount of discarded
    51  covered products collected over a program year.
    52    10. "Reuse" means donating or selling a discarded covered product back
    53  into the market for  its  original  intended  use,  when  the  discarded
    54  covered product retains its original performance characteristics and can
    55  be used for its original purpose.

        A. 5801                             4
 
     1    11.  "Retailer"  means a person who sells or offers for sale a product
     2  to a consumer, including sales made through an internet  transaction  to
     3  be delivered to a consumer in the state.
     4  § 27-3103. Producer responsibilities.
     5    1.  Within  three  years  after  the  effective date of this title, no
     6  producer shall sell, offer for sale, or distribute covered materials  or
     7  products  for use in New York unless the producer, or a producer respon-
     8  sibility organization acting as their designated agent, has  a  producer
     9  responsibility  plan  approved  by the department. Producers may satisfy
    10  participation obligations individually or jointly with  other  producers
    11  or through a producer responsibility organization.
    12    2.  Within one year after the department approves a producer responsi-
    13  bility plan, producers shall be required to meet the  minimum  post-con-
    14  sumer  recycled  material  content rate and minimum recycling rate for a
    15  covered material or product as approved by the department in the produc-
    16  er responsibility plan.
    17    3. A producer shall be exempt from the requirements of this  title  if
    18  the producer:
    19    (a) Generates less than one million dollars in annual revenues;
    20    (b)  Generates  less  than  one  ton  of covered materials or products
    21  supplied to New York state residents per year; or
    22    (c) Operates as a single point of retail sale and is not  supplied  or
    23  operated as part of a franchise.
    24    4.  Retailers  that are not producers are exempt from the requirements
    25  of this title.
    26    5. Producers may comply individually or may form a producer  responsi-
    27  bility  organization and discharge their responsibilities to such organ-
    28  ization.
    29  § 27-3105. Funding mechanism.
    30    1. A producer  responsibility  organization  shall  establish  program
    31  participation  charges for producers through the producer responsibility
    32  plan pursuant to section 27-3107 of this title which shall be sufficient
    33  to cover all program costs.
    34    2. A producer  responsibility  organization  shall  structure  program
    35  charges  to provide producers with financial incentives, to reward waste
    36  reduction and recycling compatibility innovations and practices, and  to
    37  discourage  designs  or  practices  that  increase costs of managing the
    38  products. The producer responsibility organization may adjust charges to
    39  be paid by participating producers based on factors that  affect  system
    40  costs. At a minimum, charges shall be variable based on:
    41    (a)  Costs  to  provide curbside collection or other level of consumer
    42  service that is, at minimum, as convenient as curbside collection or  as
    43  convenient  as  the  previous  waste collection schema in the particular
    44  jurisdiction;
    45    (b) Costs to process a producer's covered materials  or  products  for
    46  sale to secondary material markets;
    47    (c) Whether the covered material or product would typically be recycl-
    48  able  except  that as a consequence of the product's design, the product
    49  has the effect of disrupting recycling processes or the product includes
    50  labels, inks, and adhesives containing heavy metals or  other  hazardous
    51  waste as defined by the department in regulations that would contaminate
    52  the recycling process;
    53    (d)  Whether  the  covered  materials  or  product are nonfood contact
    54  containers and other nonfood  contact  packaging  that  is  specifically
    55  designed to be reusable or refillable and has high reuse or refill rate.

        A. 5801                             5
 
     1    3.  The  charges  shall be adjusted based upon the percentage of post-
     2  consumer recycled material content and such percentage of  post-consumer
     3  recycled content shall be verified either by the producer responsibility
     4  organization  or by an independent party designated by the department to
     5  ensure  that  such  percentage  exceeds  the minimum requirements in the
     6  covered material, as long as the recycled content does not  disrupt  the
     7  potential for future recycling.
     8    4.  A  producer  responsibility  organization shall be responsible for
     9  calculating and dispersing activity-based costs for  municipal  services
    10  utilized  by  a producer responsibility organization if the municipality
    11  elects to be compensated by the producer responsibility organization  in
    12  the  recovery,  recycling,  and processing of covered materials, whether
    13  such services are provided directly by the  municipality  or  through  a
    14  contracted  service provider. The activity-based cost mechanism shall be
    15  based on the cost of residential curbside collection, on-site processing
    16  cost for each readily-recyclable material, cost of non-readily  recycla-
    17  ble  material  types, transportation cost of recycling for each material
    18  type, and any other cost factors as determined  by  the  department.  To
    19  facilitate  the  producer responsibility organization's determination of
    20  the cost of recycling, participating municipalities  shall  report  data
    21  related  to  their  costs  and  the  value  of materials to the producer
    22  responsibility organization.  Cost calculations shall take into  consid-
    23  eration revenue generated from recyclable materials.
    24    5.  The  department shall make such rules and regulations which may be
    25  necessary for a producer  responsibility  organization  to  develop  and
    26  manage a funding mechanism and activity-based costs.
    27  § 27-3107. Producer responsibility plan.
    28    1.  Producers,  or  a  producer  responsibility organization acting as
    29  their designated agent, shall develop and submit a producer responsibil-
    30  ity plan to the department no later than one year  after  the  effective
    31  date  of  this  title.  Such  plan  shall be for five years and shall be
    32  reviewed and updated every five years  following  the  approval  of  the
    33  original  plan.  The department shall have the discretion to require the
    34  plan to be reviewed or revised prior to the  five  year  period  if  the
    35  department has cause to believe the minimum post-consumer recycled mate-
    36  rial  content  rates,  minimum  recycling rates, or other factors of the
    37  plan are not being met or followed by the producer, or producer  respon-
    38  sibility  organization,  or  if there has been a change in circumstances
    39  that warrants revision of the plan. The submitted  plan  shall  include,
    40  but not be limited to:
    41    (a)  contact  information  of the producer responsibility organization
    42  and the producer or producers covered under the plan;
    43    (b) a description of how comments of stakeholders were  considered  in
    44  the development of the plan;
    45    (c) the covered materials for which the producer or producer responsi-
    46  bility organization is responsible for;
    47    (d)  a  funding mechanism that allocates the costs to the producers to
    48  meet the requirements of this title and is sufficient to cover the  cost
    49  of  registering,  operating  and  updating  the  plan, and maintaining a
    50  financial reserve sufficient  to  operate  the  program  in  a  fiscally
    51  prudent and responsible manner;
    52    (e)  a description of the process for municipalities to recoup reason-
    53  able costs from the producer responsibility organization for the activi-
    54  ty-based costs, including, as applicable, any  administrative,  sorting,
    55  collection, transportation, or processing costs, if the producer respon-
    56  sibility organization uses existing services through a municipality;

        A. 5801                             6
 
     1    (f)  a  proposed  minimum post-consumer recycled material content rate
     2  requirement and minimum recycling rate for materials.  The minimum recy-
     3  cling rate shall be varied for each recycled material and shall  include
     4  paper products, glass, metal, and plastic;
     5    (g)  a  description  of a public education program pursuant to section
     6  27-3113 of this title;
     7    (h) how the producers, or the  producer  responsibility  organization,
     8  will  work  with  existing  waste haulers, material recovery facilities,
     9  recyclers, and municipalities to operate or  expand  current  collection
    10  programs to address material collection methods;
    11    (i)  a description of how a municipality will participate, on a volun-
    12  tary basis, with collection and how existing municipal waste  collection
    13  infrastructure will be used;
    14    (j)  a  description  of  how  the producer, or producer responsibility
    15  organization, plans to meet the convenience requirements  set  forth  in
    16  this title;
    17    (k)  a  description  of  how  the producer, or producer responsibility
    18  organization, will meet or exceed the minimum recycling rate for a prod-
    19  uct;
    20    (l) a description of the process for end-of-life management, including
    21  recycling and disposal, using  environmentally  sound  management  prac-
    22  tices;
    23    (m)  a  description of how a producer responsibility organization will
    24  work with producers to  reduce  packaging  through  product  design  and
    25  program innovations;
    26    (n)  a  process  to  address concerns and questions from customers and
    27  consumers; and
    28    (o) any other information as specified by the department through regu-
    29  lations.
    30    2. The department shall promulgate  a  registration  fee  schedule  to
    31  cover  administrative  costs, including a schedule for re-evaluating the
    32  fee structure on an annual basis.
    33  § 27-3109. Producer responsibility plan approval.
    34    1. No later than ninety days after  the  submission  of  the  producer
    35  responsibility  plan,  the  department  shall  make  a  determination to
    36  approve the plan as submitted; approve the plan with conditions; or deny
    37  the plan. The department shall consider  the  following  in  whether  to
    38  approve a plan:
    39    (a)  the  plan  adequately addresses all elements described in section
    40  27-3107 of this title with sufficient detail  to  demonstrate  that  the
    41  objective of the plan will be met;
    42    (b)  the producer has undertaken satisfactory consultation with stake-
    43  holders and has provided an opportunity for  stakeholder  input  in  the
    44  implementation  and  operation  of  the  plan prior to submission of the
    45  plan;
    46    (c) the plan adequately provides for: (i) the producer collecting  and
    47  funding  the  costs of collecting and processing products covered by the
    48  plan or reimbursing a municipality; (ii) the funding mechanism to  cover
    49  the  entire  cost  of  the  program;  (iii) convenient and free consumer
    50  access to collection facilities or  collection  services;  and  (iv)  an
    51  evaluation  system for the fee structure, which shall be evaluated on an
    52  annual basis by the producer responsibility organization and  re-submit-
    53  ted to the department annually;
    54    (d) the plan takes into consideration a post-consumer content rate and
    55  recycling  rate that will create or enhance markets for recycled materi-
    56  als and there is a plan to adjust the minimum rates on an annual  basis.

        A. 5801                             7
 
     1  Such  rates  shall  take  into  consideration  current state and federal
     2  rates;
     3    (e) the plan creates a convenient system for consumers to recycle that
     4  is, at minimum, as convenient as curbside collection or as convenient as
     5  the previous waste collection schema in the particular jurisdiction.
     6    2.  No  later than six months after the date the plan is approved, the
     7  producer, or producer responsibility organization, shall  implement  the
     8  approved  plan.  The  department may rescind the approval of an approved
     9  plan at any time.
    10  § 27-3111. Collection and convenience.
    11    A producer or producer responsibility organization shall  provide  for
    12  widespread, convenient, and equitable access to collection opportunities
    13  for  the  covered  products  identified  under  the producer or producer
    14  responsibility organization's plan.  A producer responsibility organiza-
    15  tion shall ensure services continue  for  all  single  and  multi-family
    16  residential units that a municipality serves as of the effective date of
    17  this article, either directly or through a contract to provide services,
    18  and  that  such  services  are  continued through the plan.   A producer
    19  responsibility organization may rely on a  range  of  means  to  collect
    20  various  categories  of covered materials or products including, but not
    21  limited to, curbside collection, depot drop-off, and retailer  take-back
    22  so  long  as  covered  materials and products collection options include
    23  curbside or  multi-family  recycling  collection  services  provided  by
    24  municipal   programs,   municipal   contracted   programs,  solid  waste
    25  collection companies, or other approved entities as  identified  by  the
    26  department if:
    27    1.  The  category  of  covered  materials and products is suitable for
    28  residential curbside recycling collection and can be effectively  sorted
    29  by the facilities receiving the curbside collected material;
    30    2.  The category of paper is suitable for residential curbside recycl-
    31  ing collection and can be effectively sorted by the facilities receiving
    32  the curbside collected material;
    33    3. The provider of the residential curbside recycling  service  agrees
    34  to include the category of covered materials and products as an accepted
    35  material;
    36    4.  The covered materials and products category is not handled through
    37  a deposit and return  scheme  or  buy  back  system  that  relies  on  a
    38  collection system other than curbside or multi-family collection; and
    39    5.  The  provider of the residential curbside recycling service agrees
    40  to  the  producer  responsibility  organization   activity-based   costs
    41  arrangement.
    42  § 27-3113. Outreach and education.
    43    1.  The  producer,  or  producer  responsibility  organization,  shall
    44  provide effective outreach, education, and communications  to  consumers
    45  throughout New York state regarding:
    46    (a)  proper  end-of-life  management  of covered products and beverage
    47  containers;
    48    (b) the location and availability of curbside and drop-off  collection
    49  opportunities;
    50    (c) how to prevent litter of covered products and beverage containers;
    51  and
    52    (d)  recycling and composting instructions that are: consistent state-
    53  wide, except as necessary to take into account differences  among  local
    54  laws  and processing capabilities; easy to understand; and easily acces-
    55  sible.

        A. 5801                             8
 
     1    2. The outreach and education required pursuant to subdivision one  of
     2  this section shall:
     3    (a)  be  designed  to achieve the management goals of covered products
     4  under this title, including the prevention of contamination  of  covered
     5  products;
     6    (b) be coordinated across programs to avoid confusion for consumers;
     7    (c)  include,  at  a  minimum:  consulting on education, outreach, and
     8  communications with local governments and other stakeholders; coordinat-
     9  ing with and assisting local municipal  programs,  municipal  contracted
    10  programs, solid waste collection companies, and other entities providing
    11  services;  and  developing  and  providing outreach and education to the
    12  diverse ethnic populations in the state; and
    13    (d) a plan to work  with  participating  producers  to  label  covered
    14  products  with  information  to assist consumers in responsibly managing
    15  and recycling covered products.
    16    3. The department shall determine the effectiveness  of  outreach  and
    17  education  efforts  under  this section to determine whether changes are
    18  necessary to improve those outreach and education  efforts  and  develop
    19  information  that  may be used to improve outreach and education efforts
    20  under this section.
    21    4. The producer responsibility organization shall undertake  outreach,
    22  education,  and communications that assist in attaining or exceeding the
    23  minimum post-consumer content and recovery rates.
    24  § 27-3115. Reporting requirements and audits.
    25    1. On or before one year after a producer or  producer  responsibility
    26  organization's  first  plan  is  approved, and annually thereafter, each
    27  producer, or producer responsibility organization acting as their desig-
    28  nated agent, shall submit a report to the commissioner that details  the
    29  program  for the prior year's program. The report shall be posted on the
    30  department's website and on the website of  the  producer,  or  producer
    31  responsibility organization acting as their designated agent. Such annu-
    32  al report shall include:
    33    (a)  a  detailed description of the methods used to collect, transport
    34  and  process  covered  materials  and   products   including   detailing
    35  collection  methods made available to consumers and an evaluation of the
    36  program's collection convenience;
    37    (b) the overall weight of covered materials and products collected  in
    38  the state;
    39    (c) the weight and type of covered materials and products collected in
    40  the state by the method of disposition;
    41    (d)  the  total  cost of implementing the program, as determined by an
    42  independent financial audit, as performed by an independent auditor;
    43    (e) information regarding the independently audited  financial  state-
    44  ments  detailing all deposits received and refunds paid by the producers
    45  covered by the approved plan, and revenues and expenditures for any fees
    46  associated with the approved plan that may  be  charged  separately  and
    47  identified on the consumer receipt of sale;
    48    (f) a copy of the independent audit;
    49    (g)  a detailed description of whether the program compensates munici-
    50  palities, solid waste collection, sorting, and  reprocessing  companies,
    51  and  other  approved  entities  for  their  recycling  efforts and other
    52  related services provided by the above entities;
    53    (h) samples of all educational  materials  provided  to  consumers  or
    54  other entities; and

        A. 5801                             9

     1    (i)  a  detailed  list  of efforts undertaken and an evaluation of the
     2  methods used to disseminate such materials including recommendations, if
     3  any, for how the educational component of the program can be improved.
     4    2.  The department shall not require public reporting of any confiden-
     5  tial information that the department finds to be  protected  proprietary
     6  information.  For purposes of this title, protected proprietary informa-
     7  tion shall mean information that, if made public, would divulge  compet-
     8  itive  business information, methods or processes entitled to protection
     9  as trade secrets of such producer or producer  responsibility  organiza-
    10  tion or information that would reasonably hinder the producer or produc-
    11  er  responsibility  organization's  competitive advantage in the market-
    12  place.
    13  § 27-3117. Antitrust protections.
    14    A producer responsibility organization, including  officers,  members,
    15  employees and agents thereof, shall be immune from liability for conduct
    16  under state laws relating to antitrust, restraint of trade, unfair trade
    17  practices,  and other regulation of trade or commerce only to the extent
    18  necessary to plan and implement compliance with this section.
    19  § 27-3119. Penalties.
    20    1. Except as otherwise provided in this section, any person or  entity
    21  that  violates  any  provision  of  or fails to perform any duty imposed
    22  pursuant to this title or any rule or  regulation  promulgated  pursuant
    23  thereto,  or  any term or condition of any registration or permit issued
    24  pursuant thereto, or any final determination or order of the commission-
    25  er made pursuant to this article or article seventy-one of this  chapter
    26  shall  be  liable for a civil penalty not to exceed five hundred dollars
    27  for each violation and an additional  penalty  of  not  more  than  five
    28  hundred dollars for each day during which such violation continues.
    29    2.  (a)  Any  producer  or  producer  responsibility  organization who
    30  violates any provision of or fails to perform any duty imposed  pursuant
    31  to this title or any rule or regulation promulgated pursuant thereto, or
    32  any  term  or  condition  of  any registration or permit issued pursuant
    33  thereto, or any final determination or order of  the  commissioner  made
    34  pursuant to this article or article seventy-one of this chapter shall be
    35  liable  for a civil penalty not to exceed five thousand dollars for each
    36  violation and an additional penalty of not more than one  thousand  five
    37  hundred  dollars for each day during which such violation continues. For
    38  a second violation committed within twelve months of a prior  violation,
    39  the producer or producer responsibility organization shall be liable for
    40  a  civil  penalty  not  to exceed ten thousand dollars and an additional
    41  penalty of not more than three thousand  dollars  for  each  day  during
    42  which  such  violation  continues.  For  a third or subsequent violation
    43  committed within twelve months of any prior violation, the  producer  or
    44  producer responsibility organization shall be liable for a civil penalty
    45  not  to  exceed twenty thousand dollars and an additional penalty of six
    46  thousand dollars for each day during which such violation 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 seventy-one 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

        A. 5801                            10
 
     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 ninety-two-s of the state finance law.
     7  § 27-3121. State preemption.
     8    Jurisdiction  in  all  matters  pertaining to activity-based costs and
     9  funding mechanisms of producer responsibility organizations relating  to
    10  the  recovery  of covered materials by this title, vested exclusively in
    11  the state. Any provision of any local law or ordinance, or any  rule  or
    12  regulation promulgated thereto, governing covered materials and products
    13  recycling  shall,  upon  the effective date of this title, be preempted;
    14  provided however, that nothing in this section shall preclude  a  person
    15  from  coordinating,  for  recycling  or reuse, the collection of covered
    16  materials and products.
    17  § 27-3123. Authority to promulgate rules and regulations.
    18    The commissioner shall have the power to promulgate  rules  and  regu-
    19  lations necessary and appropriate for the administration of this title.
    20  § 27-3125. Severability.
    21    The  provisions  of  this  title shall be severable and if any phrase,
    22  clause, sentence or provision of this title or the applicability thereof
    23  to any person or circumstance shall be held invalid,  the  remainder  of
    24  this title and the application thereof shall not be affected thereby.
    25    § 3. This act shall take effect on the one hundred eightieth day after
    26  it shall have become a law.
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