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A11308 Summary:

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A11308 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 7988                                                 A. 11308
 
                SENATE - ASSEMBLY
 
                                      May 27, 2010
                                       ___________
 
        IN  SENATE  --  Introduced  by  COMMITTEE ON RULES -- (at request of the
          Governor) -- read twice and ordered printed, and when  printed  to  be
          committed to the Committee on Finance
 
        IN  ASSEMBLY  --  Introduced by COMMITTEE ON RULES -- (at request of the
          Governor) -- read once and referred to the Committee on Ways and Means
 

        AN ACT to amend the tax law, in relation to  real  estate  transfer  tax
          deposits into the environmental protection fund; to amend the environ-
          mental  conservation law, in relation to the recycling, reuse and safe
          handling of electronic equipment sold in the state  of  New  York;  in
          relation  to  hazardous  waste  program  fees  and  surcharges; and in
          relation to penalties for enforcement of violations; to repeal section
          72-0403 of the environmental conservation law  relating  to  hazardous
          waste program surcharges; and making appropriations for the support of
          government
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  (a) The several amounts specified in this  act  for  state
     2  operations  and  for  aid  to localities, or so much thereof as shall be

     3  sufficient to accomplish the purposes designated by the  appropriations,
     4  are  hereby  appropriated  and  authorized  to  be  paid  as hereinafter
     5  provided, to the respective public officers and for the several purposes
     6  specified.
     7    (b) The several amounts specified in this act for capital projects, or
     8  so much thereof as shall be necessary to accomplish the purpose  of  the
     9  appropriations,  are appropriated by comprehensive construction programs
    10  (hereinafter  referred  to  by  the  abbreviation  CCP),  purposes,  and
    11  projects  designated  by  the  appropriations, and authorized to be made
    12  available as hereinafter provided to  the  respective  public  officers;
    13  such  appropriations  shall be deemed to provide all costs necessary and
    14  pertinent to accomplish the intent of the appropriations and are  appro-
    15  priated  in  accordance  with  the provisions of section 93 of the state

    16  finance law.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12258-02-0
        S. 7988                             2                           A. 11308
 
     1    (c) No moneys appropriated by this act shall be available for  payment
     2  until  a  certificate of approval has been issued by the director of the
     3  budget, who shall file such certificate with the department of audit and
     4  control, the chairperson of the senate finance committee and the  chair-
     5  person of the assembly ways and means committee.
     6    (d)  The  appropriations  contained in this act shall be available for
     7  the fiscal year beginning on April 1, 2010.
 
     8            OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION
 

     9  General Fund/State Operations
    10  State Purposes Account - 003
 
    11  PARK OPERATIONS PROGRAM ..................................... 11,000,000
    12                                                            --------------
 
    13                             NONPERSONAL SERVICE
 
    14  Supplies and materials ......................... 4,000,000
    15  Contractual services ........................... 7,000,000
    16                                              --------------
    17      Amount available for nonpersonal service .. 11,000,000
    18                                              --------------
 
    19                  DEPARTMENT OF ENVIRONMENTAL CONSERVATION
 
    20  General Fund/State Operations
    21  State Purposes Account - 003
 
    22  FOREST AND LAND RESOURCES PROGRAM .............................. 200,000
    23                                                            --------------
    24                             NONPERSONAL SERVICE
 

    25  Supplies and materials ........................... 200,000
    26                                              --------------
    27      Amount available for nonpersonal service ..... 200,000
    28                                              --------------
 
    29             MISCELLANEOUS - ALL STATE DEPARTMENTS AND AGENCIES
 
    30                            GENERAL STATE CHARGES
 
    31  General Fund/State Operations
    32  State Purposes Account - 003
 
    33  GENERAL STATE CHARGES ........................................ 5,000,000
    34                                                            --------------
 
    35  Notwithstanding any law to the contrary, for
    36    taxes on public lands and payments  pursu-
    37    ant  to  sections  532  through 546 of the
    38    real property tax law (09TX10ER) ............. 5,000,000
    39                                              --------------

        S. 7988                             3                           A. 11308
 
     1                              CAPITAL PROJECTS
 
     2  ENVIRONMENT AND RECREATION (CCP) ........................... 134,000,000
     3                                                            --------------
 
     4  Environmental Protection Fund
 
     5  Environment and Recreation Purpose
 
     6    For  services and expenses of projects and
     7      purposes authorized by section  92-s  of
     8      the state finance law to receive funding
     9      from  the solid waste account in accord-
    10      ance with a programmatic  and  financial
    11      plan  to  be approved by the director of
    12      the budget, including  suballocation  to
    13      other  state  departments  and agencies,
    14      according to the following:
 
    15    Non-hazardous  landfill  closure  projects
    16      (09LC10ER) ................................... 600,000
 

    17    Municipal  waste  reduction  or  recycling
    18      projects (09MR10ER) ........................ 6,639,000
 
    19    Secondary  materials  regional   marketing
    20      assistance   and   energy   conservation
    21      services projects (09SM10ER) ............... 1,000,000
 
    22    Pesticides program (09PD10ER) .................. 575,000
 
    23    Notwithstanding any law to  the  contrary,
    24      for   assessment  and  recovery  of  any
    25      natural resource damages (09RD10ER) .......... 200,000
 
    26    Notwithstanding any law to  the  contrary,
    27      for  the pollution prevention institute;
    28      including $600,000 for the Green  Initi-
    29      ative Institute (09PP10ER) ................. 2,000,000
 
    30    For  services and expenses of projects and
    31      purposes authorized by section  92-s  of
    32      the state finance law to receive funding
    33      from  the parks, recreation and historic

    34      preservation account in accordance  with
    35      a  programmatic and financial plan to be
    36      approved by the director of the  budget,
    37      including  suballocation  to other state
    38      departments and agencies,  according  to
    39      the following:
 
    40    Local  waterfront revitalization programs,
    41      notwithstanding any law to the contrary,
    42      not less than, $6,000,000 for waterfront
    43      revitalization projects which are in  or
    44      primarily  serve areas where demographic
        S. 7988                             4                           A. 11308
 
     1      and other relevant data for  such  areas
     2      demonstrate  that  the areas are densely
     3      populated and  have  sustained  physical
     4      deterioration, decay, neglect, or disin-
     5      vestment, or where a substantial propor-
     6      tion of the residential population is of

     7      low income or is otherwise disadvantaged
     8      and  is  underserved with respect to the
     9      existing recreational  opportunities  in
    10      the  area;  and  provided  further  this
    11      appropriation shall not be construed  to
    12      restrict   the  use  of  any  additional
    13      monies for such projects;  $550,000  for
    14      Buffalo Waterfront; $300,000 for Niagara
    15      River  Greenway; and $250,000 for Hudson
    16      and Champlain Docks (09WR10ER) ............ 12,000,000
 
    17    Parks, recreation and  historic  preserva-
    18      tion  projects,  notwithstanding any law
    19      to  the   contrary,   not   less   than,
    20      $6,716,000  for municipal parks projects
    21      which are in or  primarily  serve  areas
    22      where  demographic  and  other  relevant
    23      data for such areas demonstrate that the
    24      areas are  densely  populated  and  have

    25      sustained physical deterioration, decay,
    26      neglect  or  disinvestment  or  where  a
    27      substantial proportion of  the  residen-
    28      tial  population  is of low income or is
    29      otherwise disadvantaged  and  is  under-
    30      served  with  respect  to  the  existing
    31      recreational opportunities in the  area,
    32      and   notwithstanding  any  law  to  the
    33      contrary, $225,000  for  Olmstead  Park,
    34      $125,000  for  Hyde  Park,  $225,000 for
    35      Darwin Martin  House  and  $125,000  for
    36      Graycliff Manor (09MP10ER) ................ 13,432,000
 
    37    Notwithstanding  any  law to the contrary,
    38      for state parks and  land  and  easement
    39      infrastructure,  access  and stewardship
    40      projects  which  shall  include  capital
    41      projects:  (i)  on state parks and state
    42      owned   lands   acquired   pursuant   to

    43      sections  54-0303  and  56-0307  of  the
    44      environmental conservation law and  (ii)
    45      on  state parks or state owned lands and
    46      easements under the jurisdiction of  the
    47      department of environmental conservation
    48      or  the  office of parks, recreation and
    49      historic preservation for access  oppor-
    50      tunities  for  people with disabilities;
    51      access to  the  State  Forest  Preserve;
    52      State reforestation, Wildlife Management
    53      areas  and  conservation easement lands;
    54      recreational  trail   construction   and
        S. 7988                             5                           A. 11308
 
     1      maintenance;   Catskill  and  Adirondack
     2      campground improvements to public access
     3      and sanitation facilities; environmental
     4      education; conservation education facil-

     5      ity improvements; archeological, histor-
     6      ic,   cultural   and   natural  resource
     7      surveys, forest health  surveys,  inter-
     8      pretation,   and   inventories;   Forest
     9      Preserve and state forest  unit  manage-
    10      ment   planning;  conservation  easement
    11      public  recreation   planning;   habitat
    12      restoration  and enhancement; state fish
    13      hatchery  improvements;   water   access
    14      facilities   and   safety  improvements;
    15      public beach  facility  development  and
    16      improvement;  public access improvements
    17      at day use areas;  state  historic  site
    18      exterior restoration; and cabin area and
    19      camping  facility  development, restora-
    20      tion and reconstruction (09ST10ER) ........ 16,228,000
 
    21    Notwithstanding subdivision 7  of  section
    22      92-s  of  the  state  finance law or any

    23      other law to the contrary, for  services
    24      and  expenses  of  the Hudson River Park
    25      Trust for projects related to the devel-
    26      opment of the Hudson River Park consist-
    27      ent with provisions of  chapter  592  of
    28      the  laws  of  1998;  provided, however,
    29      such funds shall not  be  available  for
    30      suballocation   to  any  public  benefit
    31      corporation or public authority with the
    32      exception of the Hudson River Park Trust
    33      and shall be available  solely  for  the
    34      liabilities incurred by the Hudson River
    35      Park Trust or by other state departments
    36      or  agencies  on  behalf  of  the Hudson
    37      River Park Trust and shall be  available
    38      solely  for  the liabilities incurred by
    39      the Hudson River Park Trust or by  other
    40      state  departments or agencies on behalf

    41      of the Hudson River  Park  Trust  on  or
    42      after  April  1,  1999. Provided further
    43      that, the comptroller is hereby  author-
    44      ized  and  directed to release monies to
    45      the Hudson River Park Trust  in  amounts
    46      set  forth in a schedule approved by the
    47      director of the budget (09HR10ER) .......... 3,000,000
 
    48    Notwithstanding any law to  the  contrary,
    49      for  zoos, botanical gardens and aquaria
    50      program (09ZB10ER) ......................... 9,000,000
 
    51    For services and expenses of projects  and
    52      purposes  authorized  by section 92-s of
        S. 7988                             6                           A. 11308
 
     1      the state finance law to receive funding
     2      from the open space account  in  accord-
     3      ance  with  a programmatic and financial

     4      plan  to  be approved by the director of
     5      the budget, including  suballocation  to
     6      other  state  departments  and agencies,
     7      according to the following:
 
     8  Costs related  to  the  acquisition  of  the
     9    following properties: Atlantic Coast, Long
    10    Island  Sound  Coastal  Area,  Long Island
    11    South Shore Estuary Reserve, Peconic Pine-
    12    lands Maritime Reserve  Projects,  Central
    13    Pine  Barrens,  Adirondack  Mountain  Club
    14    Lands,  Hudson  River  projects,   Western
    15    Suffolk/Nassau     Special     Groundwater
    16    Protection Areas, Harbor  Herons  Wildlife
    17    Complex,  Inner City/Underserved Community
    18    Parks,  Long  Pond/Butler  Woods,   Staten
    19    Island Greenbelt, Staten Island Wet Woods,
    20    Harlem   River  Waterfront,  Great  Swamp,
    21    Neversink Highlands, Plutarch/Black  Creek
    22    Wetlands   Complex,  New  York  Highlands,

    23    Mongaup Valley Wildlife  Management  Area,
    24    Northern Putnam Greenway, Putnam Railroad,
    25    Schunnemunk Mountain/Moodna Creek/Woodcock
    26    Mountain,   Sterling   Forest,  Shawangunk
    27    Mountains,    Northeastern     Westchester
    28    Watershed and Biodiversity Lands, Rockland
    29    Riverfront   Communities/Palisades  Ridge,
    30    Catskill Mountain/Delaware  River  Region,
    31    Beaverkill/Willowemoc,     Hudson    River
    32    Estuary/Greenway Trail Corridor,  Catskill
    33    Unfragmented  Forest,  Long Path, New York
    34    City  Watershed  Lands,   Taconic   Ridge/
    35    Harlem  Valley,  Albany  Pine  Bush,  Five
    36    Rivers  Environmental  Education   Center,
    37    Helderberg  Escarpment,  Pine  Bush-Hudson
    38    River Link/Tivoli  Preserve,  Batten  Kill
    39    Watershed-Saratoga  National Historic Park
    40    View shed, Washington County  Agricultural

    41    Lands-Saratoga National Historic Park View
    42    shed,    Westmere   Woods,   Lake   George
    43    watershed,   Lake   Champlain   watershed,
    44    Boeselager   forestry,   Domtar/Lyme   Fee
    45    Lands, Catskill River and  Road  corridor,
    46    Rensselaer  plateau,  Hudson  River Gorge,
    47    Franklinton  Vlaie   Wildlife   Management
    48    area,  Black Creek Marsh/Vly Swamp, Mohawk
    49    River Valley Corridor/Barge  Canal,  Ooms-
    50    dale   farm   and  surrounding  landscape,
    51    Susquehanna River Valley  Corridor,  Pilot
    52    Knob,   Floodwood   Camp,  Lake  Champlain
    53    Shoreline and Wetlands,  Saratoga  County,
    54    Mays Pond Tract, State Forest and Wildlife
    55    Management   Area   Protection,  Follensby
        S. 7988                             7                           A. 11308
 
     1    Park, Undeveloped Lake George Shore, Whit-

     2    ney  Park,  Finch  Woodlands,   Washington
     3    County  Grasslands,  Northern  Flow  River
     4    Corridors, Recreational Trail Linkages and
     5    Networks, Bog River/Beaver River Headwater
     6    Complex,  Maumee Swamp, Moose River Corri-
     7    dor,  Rome  Sand  Plains,  Saint  Lawrence
     8    River  Islands,  Shorelines  and Wetlands,
     9    Eastern   Lake   Ontario   Shoreline   and
    10    Islands, Tug Hill Core Forests and Headwa-
    11    ter  Streams,  Tioga  County Park Opportu-
    12    nities,    Nelson    Swamp,    Genny-Green
    13    Trail/Link  Trail, Clark Reservation State
    14    Park, Salmon River Corridor,  State  Parks
    15    Greenbelt/Tompkins   County,   Cattaraugus
    16    Creek    and    tributaries,     Carpenter
    17    Falls/Bear Swamp Creek Corridor, Tonawanda
    18    Creek  Watershed,  Two  Rivers State Park,
    19    Finger  Lakes  Shoreline,  Buffalo/Niagara

    20    River    Corridors,   Northern   Montezuma
    21    Wetlands,  HiTor/Bristol  Hills,  Braddock
    22    Bay,  Catharine Valley Complex, Sonnenberg
    23    Gardens, Western  Finger  Lakes:  Conesus,
    24    Hemlock,  Canadice  and  Honeoye,  Genesee
    25    Greenway/Recreationway,   Allegany   State
    26    Park,   Alder  Bottom  Pond/French  Creek,
    27    Great Lakes Shorelines and Niagara  River,
    28    Chautauqua  Lake  Access,  Shore Lands and
    29    Vistas,  Randolph  Swamp,  Eighteen   Mile
    30    Creek/Hampton Brook Woods, Statewide Small
    31    Projects, Working Forest Lands, State Park
    32    and  State  Historic  Site Protection, (a)
    33    notwithstanding any law to  the  contrary,
    34    $500,000  from  the land acquisition allo-
    35    cation   for   urban   forestry   projects
    36    provided  that no less than $250,000 shall
    37    be made available  for  such  programs  in

    38    cities with populations of 65,000 or more;
    39    (b) notwithstanding any law to the contra-
    40    ry,  $1,575,000  from the land acquisition
    41    allocation to the land trust alliance  for
    42    the   purpose  of  awarding  grants  on  a
    43    competitive basis to  local  land  trusts,
    44    provided  that  up  to ten percent of such
    45    amount may be made available for  adminis-
    46    trative  costs and/or technical assistance
    47    (09LA10ER) .................................. 17,614,000
 
    48    Albany  Pine  Bush   Preserve   Commission
    49      (09AP10ER) ................................. 2,000,000
 
    50    Long  Island Central Pine Barrens Planning
    51      (09LP10ER) ................................. 1,100,000
 
    52    Long Island South  Shore  Estuary  Reserve
    53      (09SE10ER) ................................... 900,000

        S. 7988                             8                           A. 11308
 
     1    Agricultural  non-point  source  abatement
     2      and control projects (09AN10ER) ........... 13,297,000
 
     3    Non-agricultural  non-point  source abate-
     4      ment and control projects (09NP10ER) ....... 3,703,000
 
     5    Agriculture and farmland protection activ-
     6      ities (09FP10ER) .......................... 10,750,000
 
     7    Biodiversity stewardship and research, and
     8      notwithstanding any law to the contrary,
     9      $75,000 for Cayuga Island (09BD10ER) ......... 500,000
 
    10    Notwithstanding any law to  the  contrary,
    11      for  the Hudson River Estuary Management
    12      Plan  prepared   pursuant   to   section
    13      11-0306  of  the environmental conserva-
    14      tion law (09HE10ER) ........................ 3,000,000
 
    15    Notwithstanding any law to  the  contrary,

    16      for  state assistance payments, pursuant
    17      to a smart growth program, provided on a
    18      competitive basis, to counties,  cities,
    19      towns,  or villages to establish, update
    20      or implement comprehensive  plans  in  a
    21      manner  consistent  with  smart  growth;
    22      provided, however, that up to 25 percent
    23      of such payments may be awarded to  not-
    24      for-profit    organizations   for   such
    25      purposes (09SG10ER) .......................... 300,000
 
    26    Notwithstanding any law to  the  contrary,
    27      for   the   Finger   Lakes-Lake  Ontario
    28      Watershed Protection Alliance (09FL10ER)
    29      ............................................ 1,000,000
 
    30    Notwithstanding any law to  the  contrary,
    31      for the state share of costs of wastewa-
    32      ter   treatment   improvement   projects
    33      undertaken by municipalities to  upgrade

    34      municipal  systems  to  meet stormwater,
    35      combined sewer overflow, sanitary  sewer
    36      overflow    and   wastewater   treatment
    37      discharge  requirements  with   priority
    38      given  to  systems that are in violation
    39      of title 8 of article 17 of the environ-
    40      mental  conservation  law  and   aquatic
    41      habitat  restoration projects undertaken
    42      by  municipalities  and   not-for-profit
    43      corporations  for aquatic habitat resto-
    44      ration projects as defined  in  subdivi-
    45      sion  1  of section 56-0101 of the envi-
    46      ronmental conservation law (09WQ10ER) ...... 2,932,000
        S. 7988                             9                           A. 11308
 
     1    Notwithstanding any law  to  the  contrary
     2      for  New  York  ocean  and  Great  Lakes
     3      ecosystem     conservation     projects,

     4      consistent  with  the policy articulated
     5      in   article  14  of  the  environmental
     6      conservation law (09GL10ER) ................ 5,000,000
 
     7    Notwithstanding any law to  the  contrary,
     8      for  the implementation of the recommen-
     9      dations of  the  invasive  species  task
    10      force  prepared  pursuant to chapter 324
    11      of the laws of 2003 and for the purposes
    12      set forth in chapter 674 of the laws  of
    13      2007 including not less than $95,000 for
    14      Lake George, provided that not less than
    15      $1,000,000  be  made available for inva-
    16      sive species eradication, and  including
    17      grants   related   to  the  control  and
    18      management  of  invasive  species.  Such
    19      funding  for grants shall be provided on
    20      a competitive basis in consultation with
    21      the New York  Invasive  Species  Council

    22      (09IS10ER) ................................. 3,800,000
 
    23    Notwithstanding  any  law to the contrary,
    24      for Soil and Water Conservation District
    25      activities as authorized for  reimburse-
    26      ment  in  section  11-a  of the soil and
    27      water   conservation    districts    law
    28      (09SW10ER) ................................. 3,000,000
 
    29    Notwithstanding  any  law to the contrary,
    30      for   Agricultural   Waste    Management
    31      projects (09AW10ER) .......................... 430,000
    32    §  2.   Section 1421 of the tax law, as amended by section 1 of part T
    33  of chapter 59 of the laws of 2009, is amended to read as follows:
    34    § 1421. Deposit and dispositions of revenues. From the taxes, interest
    35  and penalties attributable to the tax imposed pursuant to section  four-
    36  teen  hundred  two of this article, the amount of [thirty-three and one-

    37  half million] one hundred ninety-nine  million  three  hundred  thousand
    38  dollars  shall  be  deposited  by  the  comptroller in the environmental
    39  protection fund established pursuant  to  section  ninety-two-s  of  the
    40  state  finance  law for the fiscal year beginning April first, [nineteen
    41  hundred ninety-five] two thousand  nine;  the  amount  of  [eighty-seven
    42  million  dollars  shall  be  deposited in such fund for the fiscal years
    43  beginning April first, nineteen hundred ninety-six and nineteen  hundred
    44  ninety-seven;  the amount of one hundred twelve million dollars shall be
    45  deposited in such fund for the fiscal years beginning April first, nine-
    46  teen hundred ninety-eight, nineteen hundred ninety-nine,  two  thousand,

    47  two  thousand  one,  two  thousand two, two thousand three, two thousand
    48  four and two thousand five;  the  amount  of  one  hundred  thirty-seven
    49  million  dollars  shall  be  deposited  in such fund for the fiscal year
    50  beginning April first, two thousand  six;  the  amount  of  two  hundred
    51  twelve  million  dollars  shall be deposited in such fund for the fiscal
    52  year beginning April first,  two  thousand  seven;  the  amount  of  two
    53  hundred thirty-seven million dollars shall be deposited in such fund for
        S. 7988                            10                           A. 11308

     1  the fiscal year beginning April first, two thousand eight; the amount of
     2  one  hundred ninety-nine million three hundred thousand dollars shall be

     3  deposited in such fund for four fiscal years beginning April first,  two
     4  thousand  nine;]  one  hundred  nineteen  million  one  hundred thousand
     5  dollars shall be deposited in such fund for the  fiscal  year  beginning
     6  April  first,  two  thousand  ten; and for each fiscal year thereafter[;
     7  provided however that at the direction of the director of the budget, an
     8  additional amount of up to twenty-five million dollars may be  deposited
     9  in  such  fund  for  the fiscal year beginning April first, two thousand
    10  seven and ending March thirty-first, two thousand eight, for disposition
    11  as provided under such section]. On or  before  June  twelfth,  nineteen
    12  hundred ninety-five and on or before the twelfth day of each month ther-

    13  eafter  (excepting the first and second months of each fiscal year), the
    14  comptroller shall deposit into such fund from the  taxes,  interest  and
    15  penalties  collected  pursuant  to  such section fourteen hundred two of
    16  this article which have been deposited and remain to  the  comptroller's
    17  credit  in  the  banks, banking houses or trust companies referred to in
    18  section one hundred seventy-one-a of this chapter at the close of  busi-
    19  ness  on  the  last  day of the preceding month, an amount equal to one-
    20  tenth of the annual amount required to be deposited in such fund  pursu-
    21  ant  to  this  section  for  the  fiscal  year  in which such deposit is
    22  required to be made. In the event such amount  of  taxes,  interest  and
    23  penalties  so  remaining  to  the  comptroller's credit is less than the
    24  amount required to be deposited in such  fund  by  the  comptroller,  an

    25  amount  equal  to  the  shortfall shall be deposited in such fund by the
    26  comptroller with subsequent deposits, as soon as the revenue  is  avail-
    27  able.  Beginning  April  first, nineteen hundred ninety-seven, the comp-
    28  troller shall transfer monthly to the clean water/clean air fund  estab-
    29  lished  pursuant  to  section ninety-seven-bbb of the state finance law,
    30  all moneys remaining from such taxes, interest and  penalties  collected
    31  that are not required for deposit in the environmental protection fund.
    32    §  3.  Short title. Sections three, four and five of this act shall be
    33  known and may be cited as the "electronic equipment recycling and  reuse
    34  act".
    35    §  4.  Article  27 of the environmental conservation law is amended by
    36  adding a new title 26 to read as follows:
    37                                  TITLE 26

    38                  ELECTRONIC EQUIPMENT RECYCLING AND REUSE
    39  Section 27-2601. Definitions.
    40          27-2603. Manufacturer collection; recycling surcharge.
    41          27-2605. Manufacturer electronic waste registration and  respon-
    42                     sibilities.
    43          27-2607. Retailer requirements.
    44          27-2609. Labeling.
    45          27-2611. Disposal ban.
    46          27-2613. Electronic  waste collection, consolidation and recycl-
    47                     ing.
    48          27-2615. Department responsibilities.
    49          27-2617. Reporting requirements.
    50          27-2619. Preemption.
    51          27-2621. Disposition of fees.
    52  § 27-2601. Definitions.

    53    As used in this title:
    54    1. "Cathode ray tube" means a vacuum tube  or  picture  tube  used  to
    55  convert an electronic signal into a visual image.
        S. 7988                            11                           A. 11308
 
     1    2.  "Computer" means an electronic, magnetic, optical, electrochemical
     2  or other high-speed data processing device performing a logical,  arith-
     3  metic  or  storage  function,  including  a  laptop computer and desktop
     4  computer, and includes any cable, cord, or wiring permanently affixed to
     5  or  incorporated  into  such  product,  and  may include both a computer
     6  central processing unit and a monitor; but such term shall  not  include

     7  an  automated typewriter or typesetter, a portable hand-held calculator,
     8  a portable digital assistant, server, or other similar device.
     9    3. "Computer peripheral" means a monitor; electronic  keyboard;  elec-
    10  tronic  mouse  or  similar  pointing device; facsimile machine, document
    11  scanner, or printer intended for use with a computer; and  includes  any
    12  cable,  cord,  or wiring permanently affixed to or incorporated into any
    13  such product.  Computer peripheral shall not include any document  scan-
    14  ner or printer which weighs one hundred pounds or more.
    15    4.  "Consumer"  means  a  person located in the state who owns or uses
    16  covered electronic equipment, including but not limited to  an  individ-

    17  ual, a business, corporation, limited partnership, not-for-profit corpo-
    18  ration, the state, a public corporation, public school, school district,
    19  private or parochial school or board of cooperative educational services
    20  or  governmental  entity,  but  does not include an entity involved in a
    21  wholesale transaction between a distributor and retailer.
    22    5. "Covered electronic equipment" means: a computer; computer  periph-
    23  eral;  small electronic equipment; small-scale server; cathode ray tube;
    24  or television, as defined in this section.  "Covered  electronic  equip-
    25  ment"  does not include any motor vehicle or any part thereof; camera or
    26  video camera; portable or stationary radio; household appliances such as

    27  clothes washers,  clothes  dryers,  refrigerators,  freezers,  microwave
    28  ovens,  ovens,  ranges or dishwashers; equipment that is functionally or
    29  physically part of a larger piece of equipment intended for  use  in  an
    30  industrial,  research and development or commercial setting; security or
    31  anti-terrorism equipment; monitoring and control instrument  or  system;
    32  thermostat;  hand-held  transceiver;  telephone  of  any  type; portable
    33  digital assistant or  similar  device;  calculator;  global  positioning
    34  system  (GPS) receiver or similar navigation device; a server other than
    35  a small-scale server; a cash register or retail self checkout system;  a
    36  stand-alone storage product intended for use in industrial, research and

    37  development  or  commercial  settings; commercial medical equipment that
    38  contains within it a cathode ray tube, a flat panel display  or  similar
    39  video  display  device,  and  is  not  separate from the larger piece of
    40  equipment; or other medical devices as that term is  defined  under  the
    41  Federal Food, Drug and Cosmetic Act.
    42    6.    "Electronic  waste"  means covered electronic equipment that has
    43  been discarded or is no longer wanted by its owner,  or  for  any  other
    44  reason  enters the waste collection, recovery, treatment, processing, or
    45  recycling system. For purposes of section 27-2611 of this title,  "elec-
    46  tronic  waste"  does  not include the case, shell, or other enclosure of

    47  covered electronic equipment from which incorporated assemblies, sub-as-
    48  semblies, components, materials, wiring, circuitry and commodities  have
    49  been removed.
    50    7.  "Electronic  waste collection site" means a facility at a fixed or
    51  temporary site at which electronic waste is accepted from consumers  and
    52  temporarily  stored  for  more  than five days in a calendar year before
    53  such waste is transported to an electronic waste consolidation  facility
    54  or  electronic  waste  recycling facility.   Electronic waste collection
    55  sites include, but are not limited to, dedicated  sites  and  facilities
    56  for  the  acceptance of electronic waste, and retail stores and outlets,

        S. 7988                            12                           A. 11308
 
     1  municipal or private electronic waste collection sites and  not-for-pro-
     2  fit donation sites that have agreed to accept electronic waste.
     3    8.  "Electronic  waste  consolidation  facility" means a facility that
     4  receives and stores electronic waste  for  the  purpose  of  organizing,
     5  categorizing  or  consolidating  items  of  electronic waste before such
     6  waste is transported to an electronic waste  recycling  facility.  Elec-
     7  tronic  waste  consolidation facilities include, but are not limited to,
     8  facilities of brokers acting as intermediaries between electronic  waste
     9  buyers  and  sellers,  and regional centers at which electronic waste is

    10  organized, categorized or consolidated after being transported  to  such
    11  centers from electronic waste collection sites or other electronic waste
    12  consolidation facilities.
    13    9.  "Electronic  waste  recycling  facility" means a facility at which
    14  electronic waste is recycled.
    15    10. "Label" means a marker on the surface of covered electronic equip-
    16  ment conveying information; for the purposes of this title, labels  must
    17  be  permanent  and can be attached, printed, engraved or incorporated in
    18  any other permanent way that is obvious and  visible  to  users  of  the
    19  product.
    20    11.  "Manufacturer" means a person who: (a) assembles or substantially
    21  assembles covered electronic equipment for sale in the state; (b)  manu-

    22  factures  covered electronic equipment under its own brand name or under
    23  any other brand name for sale in the state; (c)  sells,  under  its  own
    24  brand  name,  covered electronic equipment sold in the state; (d) owns a
    25  brand name that it licenses to another person for use on  covered  elec-
    26  tronic  equipment  sold  in  the  state;  (e) imports covered electronic
    27  equipment for sale in the state; or (f) manufactures covered  electronic
    28  equipment for sale in the state without affixing a brand name. "Manufac-
    29  turer"  does not mean a person who assembles or substantially assembles,
    30  and sells less than one thousand units of covered  electronic  equipment
    31  annually in this state, or whose primary business is the sale of covered

    32  electronic  equipment  which  is  comprised primarily of rebuilt, refur-
    33  bished or used components. If more than one person is a manufacturer  of
    34  a  brand  of  covered  electronic  equipment, any such person may assume
    35  responsibility for obligations of a manufacturer  of  that  brand  under
    36  this  title.  If  none  of  those persons assumes responsibility for the
    37  obligations of a manufacturer under this title, any and all such persons
    38  jointly and severally may be considered to be the  responsible  manufac-
    39  turer of that brand for purposes of this title.
    40    12. "Manufacturer's brands" means a manufacturer's name, brand name or
    41  brand  label, and all manufacturer's names, brand names and brand labels

    42  for which the manufacturer has a  legal  right  or  interest,  including
    43  those  names,  brand names, and brand labels of companies that have been
    44  acquired by the manufacturer or in  which  the  manufacturer  asserts  a
    45  legal interest such as trademark, license, service mark, or patent.
    46    13. "Monitor" means a separate visual display component of a computer,
    47  whether  sold  separately or together with a computer central processing
    48  unit, and includes a cathode ray tube, liquid crystal display, gas plas-
    49  ma, digital light  processing  or  other  image  projection  technology,
    50  greater than four inches when measured diagonally, and its case, interi-
    51  or wires and circuitry, and any cable cord or wiring permanently affixed

    52  thereto or incorporated into such product.
    53    14.  "Person"  means  any  individual,  business  entity, partnership,
    54  company, corporation, not-for-profit corporation,  association,  govern-
    55  mental  entity,  public  benefit  corporation,  public  authority, firm,
        S. 7988                            13                           A. 11308
 
     1  organization, or any other group  of  individuals,  or  any  officer  or
     2  employee or agent thereof.
     3    15.  "Recycle"  means to separate, dismantle or process the materials,
     4  components or commodities contained in electronic waste for the  purpose
     5  of  preparing  the materials, components or commodities for use or reuse
     6  in new products or components thereof, but not for  energy  recovery  or

     7  energy  generation  by  means  of combustion, gasification, pyrolysis or
     8  other means.  Recycling includes the manual and mechanical separation of
     9  electronic  waste  to  recover  materials,  components  or   commodities
    10  contained  therein  for  the purpose of reuse or recycling, and changing
    11  the physical or chemical composition of electronic  waste  to  segregate
    12  components for purposes of recycling those components.
    13    16.  "Retailer"  means a person who sells covered electronic equipment
    14  to a person in the state through any means, including, but  not  limited
    15  to, transactions conducted through retail sales outlets, mail, catalogs,
    16  the  telephone or the internet, or any electronic means. "Retailer" does

    17  not include a person who sells or offers for sale fewer than  ten  items
    18  of covered electronic equipment during a calendar year.
    19    17.  "Reuse"  means  the  use  of  electronic waste that is tested and
    20  certified to be in good working order and which  was  removed  from  the
    21  waste stream for use for the same purpose for which it was manufactured,
    22  including the continued use of whole systems or components.
    23    18.  "Sell" or "sale" means any transfer for consideration of title or
    24  the right to use, from a manufacturer or retailer to a  person,  includ-
    25  ing,  but  not  limited  to, transactions conducted through retail sales
    26  outlets, catalogs, mail, the telephone, the internet, or any  electronic

    27  means;  this includes transfer of new products or used products that may
    28  have been refurbished by  their  manufacturer  or  manufacturer-approved
    29  party  and  that are offered for sale by a manufacturer or retailer, but
    30  does not include consumer-to-consumer  second-hand  transfer.  "Sell  or
    31  sale"  does  not  include:  (a)  the transfer of used covered electronic
    32  equipment or a lease of covered electronic equipment; or  (b)  wholesale
    33  transactions among a manufacturer, wholesaler and retailer.
    34    19.  "Small  electronic  equipment"  means  any portable digital music
    35  player that has memory capability and is battery-powered, video cassette
    36  recorder, a digital video disc player, digital video  recorder,  digital

    37  converter  box, cable or satellite receiver, or electronic or video game
    38  console, and includes any cable, cord, or wiring permanently affixed  to
    39  or incorporated into any such product.
    40    20.  "Small-scale server" means a computer that typically uses desktop
    41  components in a desktop form factor, but is designed primarily to  be  a
    42  storage host for other computers. To be considered a small-scale server,
    43  a computer must have the following characteristics: designed in a pedes-
    44  tal,  tower,  or other form factor similar to those of desktop computers
    45  such that all data  processing,  storage,  and  network  interfacing  is
    46  contained  within one box or product; intended to be operational twenty-

    47  four hours per day and seven days a week, and  unscheduled  downtime  is
    48  extremely  low,  such  as  on the order of hours per year; is capable of
    49  operating in a simultaneous multi-user environment serving several users
    50  through networked client units; and designed for  an  industry  accepted
    51  operating system for home or low-end server applications.
    52    21.  "Television" means a display system containing a cathode ray tube
    53  or any other  type  of  display  primarily  intended  to  receive  video
    54  programming  via  broadcast,  cable  or satellite transmission, having a
    55  viewable area greater than four inches when measured diagonally.
    56  § 27-2603. Manufacturer collection; recycling surcharge.

        S. 7988                            14                           A. 11308
 
     1    1. (a) Beginning April first, two thousand eleven, a  manufacturer  of
     2  covered  electronic  equipment  must accept for collection, handling and
     3  recycling or reuse electronic waste for which it  is  the  manufacturer.
     4  Such waste shall count toward the amount of electronic waste required to
     5  be accepted pursuant to subdivision four of this section.
     6    (b)  Beginning  April  first,  two  thousand eleven, a manufacturer of
     7  covered electronic equipment must accept for  collection,  handling  and
     8  recycling  or  reuse one piece of electronic waste of any manufacturer's
     9  brand if offered by a consumer with the purchase of  covered  electronic

    10  equipment  of the same type by a consumer. Such waste shall count toward
    11  the amount of the electronic waste required to be accepted  pursuant  to
    12  subdivision four of this section.
    13    2.  Beginning April first, two thousand eleven, each manufacturer must
    14  accept for collection, handling and recycling or reuse  the  manufactur-
    15  er's  acceptance  standard  as  specified  in  subdivision  four of this
    16  section.
    17    3. Statewide recycling or reuse goal.  (a) For the period  from  April
    18  first,  two  thousand eleven through December thirty-first, two thousand
    19  eleven, the statewide recycling or reuse goal for electronic waste shall
    20  be the product of the latest  population  estimate  for  the  state,  as

    21  published  by  the  U.S. Census bureau multiplied by three pounds multi-
    22  plied by three-quarters.
    23    (b) For calendar year two thousand twelve, the statewide recycling  or
    24  reuse  goal  for all electronic waste shall be the product of the latest
    25  population estimate for the state,  as  published  by  the  U.S.  Census
    26  bureau multiplied by four pounds.
    27    (c)  For  calendar year two thousand thirteen, the statewide recycling
    28  or reuse goal for all electronic waste  shall  be  the  product  of  the
    29  latest  population  estimate  for  the  state,  as published by the U.S.
    30  Census bureau multiplied by five pounds.
    31    (d) For calendar year two thousand fourteen and  annually  thereafter,

    32  the  statewide  recycling  or reuse goal for all electronic waste is the
    33  product of the base weight multiplied by the goal attainment percentage.
    34  For the purposes of this paragraph, "base weight" means the greater  of:
    35  (i)  the  average weight of all electronic waste collected for recycling
    36  or reuse during the previous three calendar years  as  reported  to  the
    37  department  pursuant  to  paragraph  (b)  of  subdivision one of section
    38  27-2617 of this title; or (ii) the three year average of the sum of  all
    39  electronic  waste  collected  for recycling or reuse during the previous
    40  three calendar years based on information  reported  to  the  department
    41  pursuant  to paragraph (b) of subdivision one, paragraph (b) of subdivi-

    42  sion two and paragraph (b) of subdivision three of  section  27-2613  of
    43  this title.
    44    (e) The "goal attainment percentage" means:
    45    (i)  ninety  percent if the base weight is less than ninety percent of
    46  the statewide recycling or reuse goal for the previous calendar year;
    47    (ii) ninety-five percent if the  base  weight  is  ninety  percent  or
    48  greater,  but does not exceed ninety-five percent of the statewide recy-
    49  cling or reuse goal for the previous calendar year;
    50    (iii) one hundred percent if the base weight is ninety-five percent or
    51  greater, but does not exceed one hundred five percent of  the  statewide
    52  recycling or reuse goal for the previous calendar year;

    53    (iv)  one  hundred five percent if the base weight is one hundred five
    54  percent or greater, but does not exceed one hundred ten percent  of  the
    55  statewide recycling or reuse goal for the previous calendar year; and
        S. 7988                            15                           A. 11308
 
     1    (v)  one  hundred  ten  percent  if the base weight is one hundred ten
     2  percent or greater of the statewide recycling  or  reuse  goal  for  the
     3  previous calendar year.
     4    4.  Manufacturer  acceptance standard. (a) For the period April first,
     5  two thousand eleven through December thirty-first, two  thousand  eleven
     6  and  annually thereafter, each manufacturer's acceptance standard is the

     7  product of the statewide recycling or reuse goal  under  paragraph  (a),
     8  (b),  (c)  or  (d) of subdivision three of this section, as appropriate,
     9  multiplied by that manufacturer's market share pursuant to paragraph (b)
    10  of this subdivision.
    11    (b) Each manufacturer's market share  of  electronic  waste  shall  be
    12  determined  by  the  department  based  on the manufacturer's percentage
    13  share of the total weight of covered electronic equipment sold as deter-
    14  mined by the best available information, including, but not limited  to,
    15  state  sales  data reported by weight.  Beginning April first, two thou-
    16  sand eleven, and every calendar year thereafter,  the  department  shall
    17  provide  each  manufacturer  with a determination of its market share of

    18  electronic waste which shall be the quotient of the total weight of  the
    19  manufacturer's  covered  electronic  equipment  sold  to persons in this
    20  state based on the average annual  retail  sales  during  the  preceding
    21  three  calendar years, as reported under sections 27-2605 and 27-2617 of
    22  this title divided by the total  weight  of  all  manufacturers  covered
    23  electronic  equipment sold to persons in this state based on the average
    24  annual retail sales  during  the  preceding  three  calendar  years,  as
    25  reported under sections 27-2605 and 27-2617 of this title.
    26    5.  In  the absence of a waiver by the department pursuant to subdivi-
    27  sion three of section 27-2615 of this title, beginning in calendar  year

    28  two thousand thirteen, a manufacturer that fails to meet its manufactur-
    29  er's  acceptance  standard for the previous calendar year as required by
    30  subdivision four of  this  section  shall  be  subject  to  a  recycling
    31  surcharge, determined as follows:
    32    (a)  If  a  manufacturer accepts at least ninety percent but less than
    33  one  hundred  percent  of  its  manufacturer's  acceptance  standard  as
    34  required  by  subdivision  four  of this section, the surcharge shall be
    35  thirty cents multiplied by the number of additional pounds of electronic
    36  waste that should have been accepted by such manufacturer.
    37    (b) If a manufacturer accepts at least fifty  percent  but  less  than
    38  ninety  percent of its manufacturer's acceptance standard as required by

    39  subdivision four of this section, the surcharge  shall  be  forty  cents
    40  multiplied  by  the number of additional pounds of electronic waste that
    41  should have been accepted by such manufacturer.
    42    (c) If a manufacturer accepts less than fifty percent of its  manufac-
    43  turer's  acceptance  standard  as  required  by subdivision four of this
    44  section, the surcharge shall be fifty cents multiplied by the number  of
    45  additional  pounds of electronic waste that should have been accepted by
    46  such manufacturer.
    47    6. The recycling surcharge shall be paid to the  department  with  the
    48  annual report required pursuant to section 27-2617 of this title.
    49    7.  Beginning  with calendar year two thousand fourteen, if a manufac-

    50  turer accepts  more  than  its  manufacturer's  acceptance  standard  as
    51  required  by  subdivision four of this section, the excess weight may be
    52  used as electronic waste acceptance credits and may be sold, traded,  or
    53  banked  for  a period no longer than three calendar years succeeding the
    54  year in which the credits were earned; provided, however, that  no  more
    55  than twenty-five percent of a manufacturer's obligation for any calendar
        S. 7988                            16                           A. 11308
 
     1  year  may  be  met  with recycling credits generated in a prior calendar
     2  year.
     3  § 27-2605. Manufacturer  electronic  waste registration and responsibil-
     4              ities.

     5    1. A manufacturer shall submit a registration on a form prescribed  by
     6  the  department to the department by January first, two thousand eleven,
     7  along with a registration fee of five thousand dollars.  The  department
     8  may  require  such  form  to  be filed electronically. Such registration
     9  shall include:
    10    (a) the manufacturer's name, address, and telephone number;
    11    (b) the name and title of an officer, director,  or  other  individual
    12  designated as the manufacturer's contact for purposes of this title;
    13    (c) a list identifying the manufacturer's brands;
    14    (d) a general description of the manner in which the manufacturer will
    15  comply  with  section 27-2603 of this title, including specific informa-

    16  tion on the manufacturer's electronic waste acceptance  program  in  the
    17  state,  and a current list of locations within the state where consumers
    18  may return electronic waste;
    19    (e) sales data reported by weight for the manufacturer's covered elec-
    20  tronic equipment sold in this state  for  the  previous  three  calendar
    21  years,  categorized  by  type  to  the extent known. If the manufacturer
    22  cannot provide accurate state sales data, it must explain why such  data
    23  cannot  be  provided,  and estimate state sales data by (i) dividing its
    24  national sales data by weight by the national  population  according  to
    25  the  most  recent census and multiplying the result by the population of
    26  the state, or (ii) another method approved by the department;

    27    (f) a statement disclosing whether: (i) any covered electronic  device
    28  sold  in this state exceeds the maximum concentration values established
    29  for lead, mercury, cadmium, hexavalent chromium,  polybrominated  biphe-
    30  nyls  (PBBs),  and  polybrominated  diphenyl  ethers  (PBDEs)  under the
    31  restriction  of  hazardous  substances  directive  (RoHS)  pursuant   to
    32  2002/95/EC  of  the  European  Parliament and Council and any amendments
    33  thereto and if so, a listing of any covered electronic equipment that is
    34  not in compliance with such directive;  or  (ii)  the  manufacturer  has
    35  received  an  exemption  from one or more of those maximum concentration
    36  values under the RoHS directive that has been approved and published  by

    37  the European Commission; and
    38    (g) any other information as the department may require.
    39    2.  A  manufacturer's registration is effective upon acceptance by the
    40  department and must be updated within thirty days of any material change
    41  to the information required by subdivision one of this section.
    42    3. Any person who becomes a manufacturer on or  after  January  first,
    43  two  thousand eleven shall register with the department prior to selling
    44  or offering for sale in the state any covered electronic equipment,  and
    45  must comply with the requirements of this title.
    46    4.  No  later  than  April  first, two thousand eleven, a manufacturer
    47  shall not sell or offer for  sale  electronic  equipment  in  the  state

    48  unless the manufacturer has registered with the department and maintains
    49  an  electronic  waste acceptance program through which the manufacturer,
    50  either directly or through an  agent  or  designee,  accepts  electronic
    51  waste from consumers in the state for recycling.  The manufacturer shall
    52  ensure that retailers are notified of such registration.
    53    5.  The  electronic waste acceptance program shall include, at a mini-
    54  mum:
    55    (a) collection, handling and recycling or reuse  of  electronic  waste
    56  pursuant  to  section  27-2603  of  this title in a manner convenient to
        S. 7988                            17                           A. 11308
 
     1  consumers. The following acceptance methods shall be considered  reason-

     2  ably  convenient: (i) mail or ship back return programs; (ii) collection
     3  or acceptance events conducted by the manufacturer or the manufacturer's
     4  agent  or designee, including events conducted through local governments
     5  or private parties; (iii) fixed acceptance locations such  as  dedicated
     6  acceptance  sites operated by the manufacturer or its agent or designee;
     7  (iv) agreements with local governments, retail stores, sales outlets and
     8  not-for-profit organizations which have agreed to provide facilities for
     9  the collection of electronic waste; (v) community collection events; and
    10  (vi) any combination of these or other acceptance methods  which  effec-
    11  tively  provide  for the acceptance of electronic waste for recycling or

    12  reuse through means that are  available  and  reasonably  convenient  to
    13  consumers in the state. At a minimum, the manufacturer shall ensure that
    14  all  counties  of  the  state, and all municipalities which have a popu-
    15  lation of ten thousand or greater, have at least one method  of  accept-
    16  ance  that is available within such county or municipality.  The depart-
    17  ment  may  establish  additional  requirements  to   ensure   convenient
    18  collection from consumers;
    19    (b) information on how consumers can destroy all data on any electron-
    20  ic  waste,  either  through  physical  destruction  of the hard drive or
    21  through data wiping;
    22    (c) a public education program to inform consumers about the  manufac-

    23  turer's electronic waste acceptance program, including at a minimum: (i)
    24  an  internet website and a toll-free telephone number and written infor-
    25  mation included in the product manual for, or at the time  of  sale  of,
    26  covered  electronic  equipment  that  provides sufficient information to
    27  allow a consumer of covered electronic equipment to learn how to  return
    28  the  covered  equipment  for  recycling  or  reuse,  and  in the case of
    29  manufacturers of computers, hard drives  and  other  covered  electronic
    30  equipment that have internal memory on which personal or other confiden-
    31  tial data can be stored, such website shall provide instructions for how
    32  consumers  can  destroy  such  data before surrendering the products for

    33  recycling or reuse; (ii) advertisements and press releases if any; and
    34    (d) any other information as required by the department in  accordance
    35  with regulations promulgated pursuant to this article.
    36    6. A manufacturer shall maintain records demonstrating compliance with
    37  this  title  and  make  them  available  for audit and inspection by the
    38  department for a period of three years.
    39    7. A manufacturer may satisfy the electronic waste collection require-
    40  ments of this section by agreeing to participate in a  collective  elec-
    41  tronic  waste  acceptance  program  with  other  manufacturers. Any such
    42  collective electronic  waste  acceptance  program  must  meet  the  same
    43  requirements  as  an  individual manufacturer. Any collective electronic

    44  waste acceptance program must include a list of manufacturers  that  are
    45  participating  in  such program along with other identifying information
    46  as may be required by the department. Such program shall submit a regis-
    47  tration to the department along with a registration fee of ten  thousand
    48  dollars.
    49    8.  A  manufacturer shall be responsible for all costs associated with
    50  the implementation of the electronic  waste  acceptance  program.    The
    51  manufacturer shall not charge consumers for the collection, handling and
    52  recycling  and reuse of electronic waste, provided that such prohibition
    53  shall not apply to a charge on business  consumers  or  to  charges  for
    54  premium  services.  This prohibition shall not apply to a manufacturer's

    55  contract with a consumer for  the  collection,  handling,  recycling  or
    56  reuse  of  electronic waste that was entered into prior to the effective
        S. 7988                            18                           A. 11308
 
     1  date of this  section.  For  purposes  of  this  subdivision,  "business
     2  consumer"  means  a  for-profit entity which has fifty or more full time
     3  employees or a not-for-profit corporation with seventy-five or more full
     4  time  employees,  but  not a not-for-profit corporation designated under
     5  section 501(c)(3) of the internal revenue code.  For  purposes  of  this
     6  subdivision,  "premium  services"  means  equipment  and  data  security
     7  services, refurbishment for reuse by  the  consumer,  and  other  custom

     8  services as may be determined by the department.
     9  § 27-2607. Retailer requirements.
    10    1. At the location of sale of covered electronic equipment, a retailer
    11  shall  provide  purchasers of covered electronic equipment with informa-
    12  tion, if any, about opportunities for the  return  of  electronic  waste
    13  that has been provided to the retailer by a manufacturer.
    14    2.  Beginning April first, two thousand eleven, no retailer shall sell
    15  or offer for sale in the state any covered electronic  equipment  unless
    16  the  manufacturer  and the manufacturer's brands are registered with the
    17  department pursuant to section 27-2605 of this title.   If the  retailer
    18  purchased  covered electronic equipment from a manufacturer who fails to

    19  register by January first, two thousand eleven, or prior to the date the
    20  manufacturer withdrew its registration or the registration  was  revoked
    21  by  the  department, the retailer may continue to sell the covered elec-
    22  tronic equipment for one hundred eighty  days  after  April  first,  two
    23  thousand eleven, or the date the registration was withdrawn or revoked.
    24  § 27-2609. Labeling.
    25    Beginning  April  first,  two  thousand eleven, a manufacturer may not
    26  offer for sale in the state or deliver to retailers for subsequent  sale
    27  covered  electronic  equipment  unless it has a visible, permanent label
    28  clearly identifying the manufacturer of that equipment.
    29  § 27-2611. Disposal ban.

    30    1. Beginning  April  first,  two  thousand  eleven,  no  manufacturer,
    31  retailer,  or  owner or operator of an electronic waste collection site,
    32  electronic waste consolidation facility or  electronic  waste  recycling
    33  facility in the state shall dispose of electronic waste at a solid waste
    34  management  facility  or  hazardous  waste management facility, or place
    35  electronic waste for collection which is  intended  for  disposal  at  a
    36  solid waste management facility or hazardous waste management facility.
    37    2.  Beginning January first, two thousand twelve, no person except for
    38  an individual or household shall place  or  dispose  of  any  electronic
    39  waste  in any solid waste management facility, or place electronic waste

    40  for collection which is intended for disposal at a solid  waste  manage-
    41  ment  facility  or  hazardous  waste  management facility in this state.
    42  Persons engaged in the collection of solid waste for delivery to a solid
    43  waste management facility shall provide written information to users  of
    44  such  facility  on  the  proper  methods for the recycling of electronic
    45  waste.
    46    3. Beginning January first, two thousand  fifteen,  no  individual  or
    47  household  shall  place  or dispose of any electronic waste in any solid
    48  waste management facility, or  place  electronic  waste  for  collection
    49  which  is  intended for disposal at a solid waste management facility or
    50  hazardous waste management facility in this state.

    51    4. Beginning January first, two thousand twelve, an owner or  operator
    52  of  a  solid  waste  management  facility  or hazardous waste management
    53  facility shall educate users of such facility on the proper methods  for
    54  the management of electronic waste. Such education shall include:
    55    (a)  providing  written  information  to users of such facility on the
    56  proper methods for recycling of electronic waste; and
        S. 7988                            19                           A. 11308
 
     1    (b) posting, in conspicuous locations at such facility, signs  stating
     2  that electronic waste may not be disposed of at the facility.
     3  § 27-2613. Electronic waste collection, consolidation and recycling.

     4    1.  Electronic  waste collection sites.   No later than January first,
     5  two thousand eleven, each person who  owns  or  operates  an  electronic
     6  waste collection site in the state shall:
     7    (a)  register  with the department on a form prescribed by the depart-
     8  ment.  The department may require such form to be filed  electronically.
     9  The  registration  shall  include:  (i) the name, address, and telephone
    10  number  of  the  owners  and  the  operators  of  the  electronic  waste
    11  collection site; and (ii) the name, address, and telephone number of the
    12  electronic waste collection site. Any person who commences the operation
    13  of  an  electronic  waste collection site on or after January first, two

    14  thousand eleven shall register with the department at least thirty  days
    15  prior  to  receiving  any  electronic  waste  at such collection site. A
    16  registration is effective upon acceptance by the department. In the case
    17  of collection sites operated by a retailer, a single registration  list-
    18  ing the name, address, and telephone number of the individual collection
    19  sites may be submitted covering all their collection sites;
    20    (b)  beginning March first, two thousand twelve, each person operating
    21  an electronic waste collection site shall submit to  the  department  an
    22  annual report for the period of April first, two thousand eleven through
    23  December thirty-first, two thousand eleven and each calendar year there-

    24  after,  on  a  form  prescribed  by the department.   The department may
    25  require annual reports to be filed electronically. Annual reports  shall
    26  include, but not be limited to, the following information: (i) the quan-
    27  tity,  by  weight,  of  electronic  waste received from consumers in the
    28  state; (ii) the name and address of each person to whom  the  electronic
    29  waste collection site sent electronic waste during the reporting period,
    30  along with the quantity, by weight, of electronic waste that was sent to
    31  each  such person; and (iii) the weight of electronic waste collected on
    32  behalf of or pursuant to an agreement with each manufacturer during  the
    33  reporting  period.  All  quantities  of electronic waste reported by the

    34  collection site must separately include electronic  waste  generated  by
    35  New  York  state consumers and electronic waste received from or shipped
    36  outside the state;
    37    (c) manage electronic waste in a manner that complies with all  appli-
    38  cable laws, rules and regulations;
    39    (d)  store  electronic  waste  (i) in a fully enclosed building with a
    40  roof, floor and walls, or (ii) in a secure container (e.g.,  package  or
    41  vehicle),  that  is  constructed  and maintained to minimize breakage of
    42  electronic waste and to prevent releases of hazardous materials  to  the
    43  environment;
    44    (e)  remove  electronic  waste  from  the  site within one year of the
    45  waste's receipt at the site, and maintain records demonstrating  compli-

    46  ance with this requirement.
    47    2. Electronic waste consolidation facilities.  (a) No later than Janu-
    48  ary  first,  two thousand eleven, each person who operates an electronic
    49  waste consolidation facility  in  the  state  shall  register  with  the
    50  department  on  a form prescribed by the department.  The department may
    51  require such form to be filed electronically.   The  registration  shall
    52  include: (i) the name, address and telephone number of the owner and the
    53  operator  of  the  facility;  and  (ii)  the name, address and telephone
    54  number of the electronic waste consolidation facility.  Any  person  who
    55  commences the operation of an electronic waste consolidation facility on
    56  or  after  January  first,  two  thousand eleven shall register with the

        S. 7988                            20                           A. 11308
 
     1  department at least thirty days prior to receiving any electronic waste.
     2  A registration is effective  upon  acceptance  by  the  department.  Any
     3  registration required by this paragraph shall be accompanied by a regis-
     4  tration fee of two hundred fifty dollars.
     5    (b)  Beginning March first, two thousand twelve, each person operating
     6  an electronic waste consolidation facility shall submit to  the  depart-
     7  ment an annual report for the period of April first, two thousand eleven
     8  through  December  thirty-first,  two  thousand eleven and each calendar
     9  year thereafter, on a form prescribed by the department.  The department

    10  may require annual reports to be filed  electronically.  Annual  reports
    11  shall include, but not be limited to, the following information: (i) the
    12  name and address of each electronic waste collection site from which the
    13  consolidation  facility  received  electronic waste during the reporting
    14  period, along with the quantity, by weight, of electronic waste received
    15  from each collection site; (ii) the name and address of each  person  to
    16  whom  the  electronic waste consolidation facility sent electronic waste
    17  during the reporting period, along with  the  quantity,  by  weight,  of
    18  electronic  waste that was sent to each such person; (iii) the weight of
    19  electronic waste collected on behalf of or pursuant to an agreement with

    20  each manufacturer during the reporting period; and (iv) a  certification
    21  by  the owner or operator of the electronic waste consolidation facility
    22  that such a facility has complied with the requirements  of  this  title
    23  and all other applicable laws, rules, and regulations. All quantities of
    24  electronic  waste reported by the consolidation facility must separately
    25  include electronic waste generated by New York state consumers and elec-
    26  tronic waste received from or shipped outside the state.
    27    (c) Each person operating an electronic waste  consolidation  facility
    28  shall:
    29    (i)  manage electronic waste in a manner that complies with all appli-
    30  cable laws, rules and regulations;

    31    (ii) store electronic waste (A) in a fully enclosed  building  with  a
    32  roof,  floor  and  walls, or (B) in a secure container (e.g., package or
    33  vehicle), that is constructed and maintained  to  minimize  breakage  of
    34  electronic  waste  and to prevent releases of hazardous materials to the
    35  environment;
    36    (iii) have a means to control entry,  at  all  times,  to  the  active
    37  portion of the facility;
    38    (iv) inform all employees who handle or have responsibility for manag-
    39  ing  electronic waste about the proper handling and emergency procedures
    40  appropriate to the type or types of  electronic  waste  handled  at  the
    41  facility;
    42    (v)  remove  electronic  waste  from  the  site within one year of the

    43  waste's receipt at the site, and maintain records demonstrating  compli-
    44  ance with this requirement; and
    45    (vi)  maintain  the records required by paragraphs (a) and (b) of this
    46  subdivision and by subparagraph (v) of this paragraph on site  and  make
    47  them  available  for audit and inspection by the department for a period
    48  of three years.
    49    (d) A person operating  an  electronic  waste  consolidation  facility
    50  shall  not  engage  in  electronic waste recycling unless such person is
    51  also registered as an electronic waste recycling facility, and  complies
    52  with  the  requirements of this section that are applicable to each type
    53  of facility.
    54    (e) A person operating an electronic waste consolidation facility  may

    55  accept  electronic  waste  in  the  same  manner  as an electronic waste
    56  collection site provided that such person complies with the requirements
        S. 7988                            21                           A. 11308
 
     1  of this section that  are  applicable  to  electronic  waste  collection
     2  sites.
     3    3.  Electronic  waste  recycling facilities. (a) No later than January
     4  first, two thousand eleven, each person operating  an  electronic  waste
     5  recycling  facility in the state shall register with the department on a
     6  form prescribed by the department.  The department may require such form
     7  to be filed electronically.   The registration shall  include:  (i)  the

     8  name,  address and telephone number of the owner and the operator of the
     9  facility; and (ii) the name, address, and telephone number of the  elec-
    10  tronic  waste recycling facility. Any person who commences the operation
    11  of an electronic waste recycling facility on or after January first, two
    12  thousand eleven shall register with the department at least thirty  days
    13  prior  to  receiving  any  electronic waste. A registration is effective
    14  upon acceptance by the department. Any  registration  required  by  this
    15  paragraph  shall  be  accompanied  by  a registration fee of two hundred
    16  fifty dollars.
    17    (b) Beginning March first, two thousand twelve, each person  operating
    18  an electronic waste recycling facility shall submit to the department an

    19  annual report for the period of April first, two thousand eleven through
    20  December thirty-first, two thousand eleven and each calendar year there-
    21  after,  on  a  form  prescribed  by the department.   The department may
    22  require annual reports to be filed electronically. Annual reports  shall
    23  include, but not be limited to, the following information: (i) the quan-
    24  tity,  by  weight,  of  electronic  waste received from consumers in the
    25  state; (ii) the name and address of  each  electronic  waste  collection
    26  site  and  electronic waste consolidation facility from which electronic
    27  waste was received during the reporting period, along with the quantity,
    28  by weight, of electronic waste received from each person; (iii) the name

    29  and address of each person to whom the facility sent electronic waste or
    30  component materials during the reporting period, along with the  quanti-
    31  ty,  by  weight, of electronic waste or component materials thereof sent
    32  to each such person; (iv) the weight of electronic  waste  collected  on
    33  behalf  of or pursuant to an agreement with each manufacturer during the
    34  reporting period; and (v) a certification by the owner  or  operator  of
    35  the  facility  that  such facility has complied with the requirements of
    36  this title and all other applicable laws, rules,  and  regulations.  All
    37  quantities  of  electronic waste reported by the recycling facility must
    38  separately include electronic waste generated by New York state  consum-

    39  ers and electronic waste received from or shipped outside the state.
    40    (c)  Each  person  operating  an  electronic  waste recycling facility
    41  shall:
    42    (i) manage and recycle electronic waste in a manner that complies with
    43  all applicable laws, rules and regulations;
    44    (ii) store electronic waste (A) in a fully enclosed  building  with  a
    45  roof,  floor  and  walls, or (B) in a secure container (e.g., package or
    46  vehicle), that is constructed and maintained  to  minimize  breakage  of
    47  electronic  waste  and to prevent releases of hazardous materials to the
    48  environment;
    49    (iii) have a means to control entry, at all times,  through  gates  or
    50  other entrances to the active portion of the facility;

    51    (iv) inform all employees who handle or have responsibility for manag-
    52  ing  electronic  waste  about  proper  handling and emergency procedures
    53  appropriate to the type or types of  electronic  waste  handled  at  the
    54  facility;
        S. 7988                            22                           A. 11308
 
     1    (v)  remove  electronic  waste  from  the  site within one year of the
     2  waste's receipt at the site, and maintain records demonstrating  compli-
     3  ance with this requirement; and
     4    (vi)  maintain  the records required by paragraphs (a) and (b) of this
     5  subdivision and by subparagraph (v) of this paragraph on site  and  make
     6  them  available  for audit and inspection by the department for a period

     7  of three years.
     8    (d) A person operating an electronic waste recycling facility may also
     9  operate such facility as  an  electronic  waste  consolidation  facility
    10  provided that such person complies with the requirements of this section
    11  that  are applicable to each type of facility. Where a facility is oper-
    12  ated for both purposes, only one registration fee must be paid.
    13    (e) A person operating an  electronic  waste  recycling  facility  may
    14  accept  electronic  waste  in  the  same  manner  as an electronic waste
    15  collection site provided that such person complies with the requirements
    16  of this section that  are  applicable  to  electronic  waste  collection
    17  sites.

    18    4.  Except to the extent otherwise required by law, no manufacturer or
    19  person operating an electronic waste collection site,  electronic  waste
    20  consolidation facility or electronic waste recycling facility shall have
    21  any responsibility or liability for any data in any form stored on elec-
    22  tronic  waste  surrendered  for  recycling  or reuse, unless such person
    23  misuses or  knowingly  and  intentionally,  or  with  gross  negligence,
    24  discloses  the  data.  This provision shall not prohibit any such person
    25  from entering into agreements that provide for the destruction  of  data
    26  on covered electronic equipment.
    27  § 27-2615. Department responsibilities.
    28    1.  The  department  is authorized to promulgate rules and regulations

    29  necessary to implement and administer this title.   At  a  minimum,  the
    30  department  shall  promulgate  rules and regulations on:   standards for
    31  reuse; electronic waste acceptance credits;  waivers  of  the  recycling
    32  surcharge;  and  acceptable alternative methods for the determination of
    33  state sales data.
    34    2. The department shall (a) maintain a list of manufacturers  who  are
    35  registered  pursuant  to  section  27-2605 of this title, (b) maintain a
    36  list of each such manufacturer's brands, and (c) post such lists on  the
    37  department's website.
    38    3.  The  department  may  waive  the  recycling surcharge payable by a
    39  manufacturer under this title when the manufacturer demonstrates  in  an

    40  application  to  the  department  it  was unable to accept the weight of
    41  electronic waste required by section 27-2603 of this title  despite  the
    42  manufacturer's  best  efforts.  The  application  shall be made with the
    43  annual report required by section 27-2617 of this title. The application
    44  shall include such information as  the  department  requires.  A  waiver
    45  provided  pursuant  to this subdivision shall not relieve a manufacturer
    46  from the obligation to comply with the  provisions  of  this  title  not
    47  specifically addressed in such waiver.
    48  § 27-2617. Reporting requirements.
    49    1. Beginning March first, two thousand twelve, for the period of April
    50  first,  two  thousand eleven through December thirty-first, two thousand

    51  eleven and each calendar year thereafter,  a  manufacturer  that  offers
    52  covered  electronic  equipment  for  sale  in  this state shall submit a
    53  report to the department on a form prescribed  by  the  department  that
    54  includes the following:
    55    (a) sales data reported by weight for the manufacturer's covered elec-
    56  tronic  equipment  sold  in  this  state for the previous three calendar
        S. 7988                            23                           A. 11308
 
     1  years, categorized by type to the  extent  known.  If  the  manufacturer
     2  cannot  provide accurate state sales data, it must explain why such data
     3  cannot be provided, and estimate state sales data by  (i)  dividing  its

     4  national  sales  data  by weight by the national population according to
     5  the most recent census and multiplying the result by the  population  of
     6  the state, or (ii) another method approved by the department;
     7    (b) the quantity, by weight, of electronic waste collected for recycl-
     8  ing or reuse in this state, categorized by the type of covered electron-
     9  ic  equipment collected during the reporting period, the methods used to
    10  accept the electronic waste, and the approximate  weight  of  electronic
    11  waste accepted by each method used to the extent known;
    12    (c)  all  quantities  of electronic waste reported by the manufacturer
    13  must separately include electronic waste generated  by  New  York  state

    14  consumers  and  electronic  waste  received  from or shipped outside the
    15  state: (i) the quantity, by weight, of electronic waste received direct-
    16  ly from consumers in the state through a mail  back  program;  (ii)  the
    17  name  and  address  of each electronic waste collection site, electronic
    18  waste consolidation facility, and electronic waste recycling facility at
    19  which electronic waste from consumers was  received  on  behalf  of  the
    20  manufacturer  during  the  reporting period, along with the quantity, by
    21  weight, of electronic waste received; and (iii) the name and address  of
    22  each  person to whom the manufacturer sent electronic waste or component
    23  materials during the reporting  period,  along  with  the  quantity,  by

    24  weight,  of electronic waste or component materials thereof sent to each
    25  such person;
    26    (d) the number of electronic waste acceptance credits purchased, sold,
    27  banked and traded during the reporting period, the number of  electronic
    28  waste  acceptance  credits  used  to  meet  the  requirements of section
    29  27-2603 of this title, and from whom they were  purchased  and  to  whom
    30  they  were sold or traded, and the number of electronic waste acceptance
    31  credits retained as of the date of the report;
    32    (e) the amount of any recycling surcharge owed for the reporting peri-
    33  od, with sufficient information to demonstrate the basis for the  calcu-
    34  lation of the surcharge;

    35    (f)  the  names and locations of electronic waste recycling facilities
    36  utilized by the manufacturer and entities to which electronic  waste  is
    37  sent  for  reuse,  whether  in the state or outside the state, including
    38  details on the methods of recycling or reuse of  electronic  waste,  any
    39  disassembly  or  physical recovery operation used, and the environmental
    40  management measures implemented by such recycling facility or entity;
    41    (g) information detailing the acceptance  methods  made  available  to
    42  consumers  in municipalities which have a population of greater than ten
    43  thousand and in each county of the state to  meet  the  requirements  of
    44  paragraph (a) of subdivision five of section 27-2605 of this title;

    45    (h)  a brief description of its public education program including the
    46  number of visits to the internet website  and  calls  to  the  toll-free
    47  telephone  number  provided  by  the manufacturer as required by section
    48  27-2605 of this title;
    49    (i) any other information as required by the department; and
    50    (j) a signature by an officer, director, or other individual affirming
    51  the accuracy of the report.
    52    2. The department may require annual reports  to  be  filed  electron-
    53  ically.
    54    3. The report shall be accompanied by an annual reporting fee of three
    55  thousand  dollars,  and  any recycling surcharge due pursuant to section
    56  27-2603 of this title.

        S. 7988                            24                           A. 11308
 
     1    4. The department shall submit a report on implementation of the title
     2  in this state to the governor and legislature by April first, two  thou-
     3  sand  twelve and every two years thereafter. The report must include, at
     4  a minimum, an evaluation of:
     5    (a) the electronic waste stream in the state;
     6    (b)  recycling  and  reuse  rates  in the state for covered electronic
     7  equipment;
     8    (c) a discussion of compliance and enforcement related to the require-
     9  ments of this title;
    10    (d) recommendations for any changes to this title; and
    11    (e) a discussion of opportunities  for  business  development  in  the

    12  state  related  to the acceptance, collection, handling and recycling or
    13  reuse of electronic equipment in this state.
    14  § 27-2619. Preemption.
    15    Jurisdiction in all matters pertaining to electronic waste  recycling,
    16  including  but  not limited to the obligations of manufacturers, retail-
    17  ers, electronic waste collection sites, electronic  waste  consolidation
    18  facilities  and  electronic  waste  recycling facilities with respect to
    19  electronic waste recycling, is, by this title, vested exclusively in the
    20  state. Any provision of any local law or ordinance, or any rule or regu-
    21  lation promulgated thereto, governing covered electronic  equipment  and
    22  the  collection,  reuse, or recycling of electronic waste shall upon the

    23  effective date of this title be preempted.
    24  § 27-2621. Disposition of fees.
    25    All fees and charges collected pursuant to this title shall be  depos-
    26  ited  into  the  environmental  protection  fund established pursuant to
    27  section ninety-two-s of the state finance law.
    28    § 5. The environmental conservation law is amended  by  adding  a  new
    29  section 71-2729 to read as follows:
    30  § 71-2729. Enforcement of title 26 of article 27 of this chapter.
    31    1.  a. Any consumer, as defined in title twenty-six of article twenty-
    32  seven of this chapter, who  violates  any  provision  of,  or  fails  to
    33  perform  any  duty imposed by, section 27-2611 of this chapter, shall be
    34  liable for a civil penalty not to exceed one hundred  dollars  for  each

    35  violation.
    36    b.  Any person, except a consumer, manufacturer, or an owner or opera-
    37  tor of an electronic waste collection  site,  electronic  waste  consol-
    38  idation  facility, or electronic waste recycling facility as these terms
    39  are defined in title twenty-six of article twenty-seven of this chapter,
    40  who violates any provision, or fails to  perform  any  duty  imposed  by
    41  section 27-2611 of this chapter, shall be liable for a civil penalty not
    42  to exceed two hundred fifty dollars for each violation.
    43    c.  Any  manufacturer,  or  any  person  operating an electronic waste
    44  collection site, an electronic waste consolidation facility, or an elec-
    45  tronic waste recycling facility as those  terms  are  defined  in  title

    46  twenty-six of article twenty-seven of this chapter, who:
    47    i.  fails to submit any report, registration, fee, or surcharge to the
    48  department as required by title twenty-six of  article  twenty-seven  of
    49  this chapter shall be liable for a civil penalty not to exceed one thou-
    50  sand  dollars  for each day such report, registration, fee, or surcharge
    51  is not submitted; and
    52    ii. violates any other provision of title twenty-six of article  twen-
    53  ty-seven  of  this  chapter or fails to perform any duty imposed by such
    54  title, except for subdivision four of section 27-2603 of  this  chapter,
    55  shall be liable for a civil penalty for each violation not to exceed one
    56  thousand  dollars  for  the  first  violation, two thousand five hundred

        S. 7988                            25                           A. 11308
 
     1  dollars for the second violation and five thousand dollars for the third
     2  and subsequent violations of this title within a twelve-month period.
     3    d.  Any  retailer,  as defined by section 27-2601 of this chapter, who
     4  violates any provision of title twenty-six of  article  twenty-seven  of
     5  this  chapter  or fails to perform any duty imposed by such title, shall
     6  be liable for a civil penalty for  each  violation  not  to  exceed  two
     7  hundred  fifty dollars for the first violation, five hundred dollars for
     8  the second violation and one thousand dollars for the third  and  subse-
     9  quent violations of this title in a twelve-month period.

    10    e. Civil penalties under this section shall be assessed by the commis-
    11  sioner  after  a  hearing  or  opportunity  to  be heard pursuant to the
    12  provisions of section 71-1709 of this article, or by the  court  in  any
    13  action or proceeding pursuant to this section, and, in addition thereto,
    14  such  person  may  by  similar  process be enjoined from continuing such
    15  violation.
    16    2. All penalties collected pursuant to this section shall be paid over
    17  to the commissioner for deposit to  the  environmental  protection  fund
    18  established pursuant to section ninety-two-s of the state finance law.
    19    §  6.  Subdivision 1 of section 72-0402 of the environmental conserva-
    20  tion law, as amended by chapter 62 of the laws of 1989, subparagraph (v)

    21  of paragraph f as amended and subparagraphs (vi) and (vii) of  paragraph
    22  f as added by section 6 of part I of chapter 577 of the laws of 2004 and
    23  paragraph  g  as added by chapter 138 of the laws of 2000, is amended to
    24  read as follows:
    25    1. [All generators shall submit annually to the department  a  fee  in
    26  the amount to be determined as follows:
    27    a.  $1,000 for generators of equal to or greater than fifteen tons per
    28  year and less than or equal to one hundred tons per  year  of  hazardous
    29  waste.
    30    b. $6,000 for generators of greater than one hundred tons per year and
    31  less than or equal to five hundred tons per year of hazardous waste.
    32    c.  $20,000  for generators of greater than five hundred tons per year

    33  and less than or equal to one thousand tons per year of hazardous waste.
    34    d. $40,000 for generators of greater than one thousand tons  per  year
    35  of hazardous waste.
    36    e.]  a.  For  the  period beginning January 1, 2010, all generators of
    37  equal to or greater than fifteen tons per year of hazardous waste  shall
    38  submit  annually  to  the  department a fee in the amount of one hundred
    39  thirty dollars per ton  of  hazardous  waste  generated  not  to  exceed
    40  $300,000,  except  not  to  exceed  $400,000 for those with greater than
    41  4,000 tons generated and less than or equal to  10,000  tons  generated,
    42  and  not  to  exceed  $800,000  for  those with greater than 10,000 tons
    43  generated.

    44    b. $3,000 for generators of equal to or greater than fifteen tons  per
    45  year  of hazardous wastewater, payable in addition to fees for hazardous
    46  wastes, other than wastewater, as required by [paragraphs a, b, c and d]
    47  paragraph a of this subdivision.
    48    [f.] c. $6,000 for generators of equal  to  or  greater  than  fifteen
    49  thousand  tons  per year of hazardous wastewater, payable in addition to
    50  the fees for hazardous wastes, other than  wastewater,  as  required  by
    51  this subdivision.
    52    d. No fee shall be payable for waste resulting from services which are
    53  provided:
    54    (i)  under  a  contract  with the department, or with the department's
    55  written approval and  in  compliance  with  department  regulations,  or

    56  pursuant  to an order of the department, the United States environmental
        S. 7988                            26                           A. 11308
 
     1  protection agency or a court, related to the cleanup or remediation of a
     2  hazardous materials or hazardous waste spill,  discharge,  or  surficial
     3  cleanup,  pursuant  to  this  chapter[,  other than section 27-1313 or a
     4  removal  action  pursuant  to  the Comprehensive Environmental Response,
     5  Compensation and Liability Act (42 U.S.C. 9601 et seq.)]; or
     6    (ii) under a contract for, or with the department's  approval  and  in
     7  compliance with department regulations for, the cleanup and removal of a
     8  petroleum  spill  or discharge, pursuant to subdivision seven of section
     9  one hundred seventy-six of the navigation law; or

    10    (iii) under the order of a court, the department or the department  of
    11  health,  or the United States environmental protection agency related to
    12  an inactive hazardous waste disposal site pursuant to section 27-1313 of
    13  this chapter, section  thirteen  hundred  eighty-nine-b  of  the  public
    14  health  law,  or  the Comprehensive Environmental Response, Compensation
    15  and Liability Act (42 U.S.C. 9601 et seq.); or
    16    (iv) voluntarily and without expectation of monetary  compensation  in
    17  accordance with subdivision one of section 27-1321 of this chapter; or
    18    (v)  under  permit  or  order  requiring corrective action pursuant to
    19  title nine of article twenty-seven of this chapter,  title  twenty-seven
    20  of  article seventy-one of this chapter or the Resource Conservation and
    21  Recovery Act (42 U.S.C. 6901 et seq.); or

    22    (vi) under a brownfield site cleanup  agreement  with  the  department
    23  pursuant to section 27-1409 of this chapter; or
    24    (vii)  under  an  environmental  restoration  project state assistance
    25  contract with the department pursuant to section 56-0503 of  this  chap-
    26  ter.
    27    [g.]  e.  Notwithstanding  any other provision of this section, no fee
    28  shall be payable for the generation of universal wastes. For purposes of
    29  this paragraph, "universal wastes" shall mean those defined  and  listed
    30  in  regulations  promulgated  pursuant to this title, provided that such
    31  wastes are regulated consistent with rules adopted by the  administrator
    32  pursuant to RCRA for the management of universal wastes.
    33    f.  In any case where a generator recycles more than ninety percent of
    34  the amount of hazardous waste or more than ninety percent of the  amount

    35  of  hazardous  wastewater it produces in any calendar year, as certified
    36  to the commissioner, upon which  a  fee  is  imposed  pursuant  to  this
    37  section,  any  such  fee  imposed or to be imposed in such case shall be
    38  determined based upon the net amount of  hazardous  waste  or  hazardous
    39  wastewater  generated,  as  applicable, which is not so recycled in such
    40  calendar year, rather than upon the gross amount of hazardous  waste  or
    41  hazardous wastewater generated in such calendar year.
    42    §  7.  Subdivision 4 of section 72-0402 of the environmental conserva-
    43  tion law, as added by chapter 471 of the laws of 1985 and renumbered  by
    44  chapter 62 of the laws of 1989, is amended to read as follows:
    45    4.  Bills  issued  for  annual  hazardous  waste program fees shall be

    46  [estimated bills] based [either:
    47    a. upon the  actual  activity  of  the  preceding  calendar  year,  as
    48  reported  to the department, or as adjusted by the department to reflect
    49  non-recurring events or reporting errors, or
    50    b. in those instances where actual activity cannot  be  determined  or
    51  where the status of a person subject to the provisions of this title has
    52  changed  since the issuance of the bill for the preceding year so that a
    53  different fee category is applicable, upon estimated  activity  for  the
    54  current  calendar  year,  as  determined  by the department] upon actual
    55  hazardous waste generated for the prior calendar year,  as  demonstrated

    56  to  the  department's satisfaction. During the first year of implementa-
        S. 7988                            27                           A. 11308
 
     1  tion of this subdivision, bills will be based on the average quantity of
     2  hazardous waste generated for the previous three calendar years.
     3    §  8.  Section  72-0403  of  the  environmental  conservation  law  is
     4  REPEALED.
     5    § 9. Paragraph b of subdivision 1 of section 72-0201 of  the  environ-
     6  mental  conservation law, as added by chapter 38 of the laws of 1985, is
     7  amended to read as follows:
     8    b. Notwithstanding any general or special law to  the  contrary,  one-
     9  half  of  all  monies  collected  by  the department pursuant to section
    10  [72-0402 and section] 72-0502 of this article shall be deposited in  the

    11  hazardous  waste  remedial fund, created pursuant to section ninety-sev-
    12  en-b of the state finance law.
    13    § 10. Paragraph e of subdivision 1 of section 72-0201 of the  environ-
    14  mental conservation law, as added by section 2 of part I of chapter 1 of
    15  the laws of 2003, is amended to read as follows:
    16    e.  Notwithstanding  any  general  or special law to the contrary, all
    17  monies collected by the department pursuant to section [72-0403] 72-0402
    18  of this article shall be deposited as follows: (i)  fifteen  percent  in
    19  the environmental protection fund established by section ninety-two-s of
    20  the  state  finance  law  not to exceed two million one hundred thousand
    21  dollars; and (ii) seventy-one  percent  in  the  industry  fee  transfer
    22  account  of the hazardous waste remedial fund established by subdivision

    23  one of section ninety-seven-b of the state finance law.
    24    § 11. Subdivisions 1, 3 and 5 of section 71-1307 of the  environmental
    25  conservation law, subdivision 1 as amended by chapter 166 of the laws of
    26  1991,  subdivision  3  as  added by chapter 846 of the laws of 1981, and
    27  subdivision 5 as added by chapter 169 of the laws of 1994,  are  amended
    28  to read as follows:
    29    1.  Administrative sanctions. Any person who violates any provision of
    30  article 23 of this chapter or commits any offense described  in  section
    31  71-1305  of  this title shall be liable to the people of the state for a
    32  civil penalty not to exceed [five] eight thousand dollars and  an  addi-
    33  tional  penalty  of [one] two thousand dollars for each day during which
    34  such violation continues, to be assessed by  the  commissioner  after  a

    35  hearing  or  opportunity  to  be  heard. The commissioner, acting by the
    36  attorney general, may bring suit for collection of such  assessed  civil
    37  penalty  in  any court of competent jurisdiction. Such civil penalty may
    38  be released or compromised by the commissioner  before  the  matter  has
    39  been  referred  to  the attorney general; and where such matter has been
    40  referred to the attorney general, any such penalty may  be  released  or
    41  compromised  and any action commenced to recover the same may be settled
    42  and discontinued by the attorney general with the consent of the commis-
    43  sioner. In addition, the commissioner shall have the power, following  a
    44  hearing  conducted  pursuant  to  rules  and  regulations adopted by the
    45  department, to direct the violator to cease the  violation  and  reclaim
    46  and  repair  the  affected site to a condition acceptable to the commis-

    47  sioner, to the extent possible within a reasonable time  and  under  the
    48  direction  and  supervision  of  the commissioner. Any such order of the
    49  commissioner shall be enforceable in any action brought by  the  commis-
    50  sioner  in  any  court  of  competent jurisdiction. Any civil penalty or
    51  order issued by the commissioner under this subdivision shall be review-
    52  able in a proceeding under article seventy-eight of the  civil  practice
    53  law and rules.
    54    3.  Criminal  sanctions.  Any  person  who, having any of the culpable
    55  mental states defined in sections 15.05 and  20.20  of  the  penal  law,
    56  violates  any  provision  of  article  23 of this chapter or commits any
        S. 7988                            28                           A. 11308
 
     1  offense described in section 71-1305 of this title shall be guilty of  a

     2  misdemeanor  and,  upon  conviction thereof, shall be punished by a fine
     3  not to exceed one thousand  dollars  for  each  day  during  which  such
     4  violation  continues  or by imprisonment for a term of not more than one
     5  year, or by both such fine and imprisonment. If the conviction is for  a
     6  subsequent  offense  committed  after  a first conviction of such person
     7  under this subdivision, punishment shall be by  a  fine  not  to  exceed
     8  [five]  eight  thousand dollars for each day during which such violation
     9  continues or by imprisonment for a term of not more than one year, or by
    10  both such fine and imprisonment.
    11    5. All fines collected pursuant to this section shall be paid into the
    12  [general fund to the credit of the state purposes account] environmental

    13  protection fund established pursuant  to  section  ninety-two-s  of  the
    14  state finance law.
    15    §  12.    Section  71-2303  of  the environmental conservation law, as
    16  amended by chapter 654 of the laws  of  1977,  is  amended  to  read  as
    17  follows:
    18  § 71-2303. Violation; penalties.
    19    1.  Administrative  sanctions.  Any  person  who violates, disobeys or
    20  disregards any provision of article twenty-four,  including  title  five
    21  and  section  24-0507  thereof  or  any rule or regulation, local law or
    22  ordinance, permit or order issued pursuant thereto, shall be  liable  to
    23  the  people  of  the  state for a civil penalty of not to exceed [three]
    24  eleven thousand dollars for every such violation, to be assessed,  after
    25  a hearing or opportunity to be heard upon due notice and with the rights

    26  to  specification  of  the charges and representation by counsel at such
    27  hearing, by the commissioner or local government. Such  penalty  may  be
    28  recovered  in  an  action brought by the attorney general at the request
    29  and in the name of the commissioner or local government in any court  of
    30  competent  jurisdiction.  Such  civil penalty may be released or compro-
    31  mised by the commissioner or local government before the matter has been
    32  referred to the  attorney  general;  and  where  such  matter  has  been
    33  referred  to  the  attorney general, any such penalty may be released or
    34  compromised and any action commenced to recover the same may be  settled
    35  and discontinued by the attorney general with the consent of the commis-
    36  sioner  or  local  government.  In  addition,  the commissioner or local
    37  government shall have power, following a  hearing  held  in  conformance

    38  with the procedures set forth in section 71-1709 of this [chapter] arti-
    39  cle,  to  direct  the  violator to cease his violation of the act and to
    40  restore the affected freshwater wetland to its condition  prior  to  the
    41  violation,  insofar  as  that  is  possible within a reasonable time and
    42  under the supervision of the commissioner or local government. Any  such
    43  order of the commissioner or local government shall be enforceable in an
    44  action brought by the attorney general at the request and in the name of
    45  the commissioner or local government in any court of competent jurisdic-
    46  tion.  Any  civil  penalty  or order issued by the commissioner or local
    47  government pursuant  to  this  subdivision  shall  be  reviewable  in  a
    48  proceeding  pursuant  to article seventy-eight of the civil practice law
    49  and rules.

    50    2. Criminal sanctions. Any person who violates any provision of  arti-
    51  cle twenty-four of this chapter, including any rule or regulation, local
    52  law  or  ordinance,  permit  or order issued pursuant thereto, shall, in
    53  addition, for the first offense, be guilty of a violation punishable  by
    54  a  fine of not less than [five hundred] two thousand nor more than [one]
    55  four thousand dollars; for a second and each subsequent offense he shall
    56  be guilty of a misdemeanor punishable by a fine of not less  than  [one]
        S. 7988                            29                           A. 11308
 
     1  four  thousand  nor  more than [two] seven thousand dollars or a term of
     2  imprisonment of not less than fifteen days nor more than six  months  or

     3  both.  Instead  of  these punishments, any offender may be punishable by
     4  being ordered by the court to restore the affected freshwater wetland to
     5  its  condition  prior  to  the offense, insofar as that is possible. The
     6  court shall specify a reasonable time for the completion of such  resto-
     7  ration, which shall be effected under the supervision of the commission-
     8  er  or  local government.  Each offense shall be a separate and distinct
     9  offense and, in the case of a continuing offense, each day's continuance
    10  thereof shall be deemed a separate and distinct offense.
    11    3. All fines collected pursuant to this section shall be paid into the
    12  environmental protection fund established pursuant  to  section  ninety-
    13  two-s of the state finance law.
    14    §  13.    Section  71-1105  of  the environmental conservation law, as

    15  amended by chapter 640 of the laws  of  1977,  is  amended  to  read  as
    16  follows:
    17  § 71-1105. Enforcement of subdivision 4 of section 15-0313.
    18    Any  violation  of  subdivision  4  of  section  15-0313  shall  be  a
    19  violation, punishable by a fine of not more  than  [five]  one  thousand
    20  eight  hundred  dollars,  and in addition thereto, by a civil penalty of
    21  not more than [five] one thousand eight hundred dollars.
    22    § 14. Subdivision 1 of section 71-2103 of the environmental  conserva-
    23  tion  law,  as amended by section 21 of part C of chapter 62 of the laws
    24  of 2003, is amended to read as follows:
    25    1. Except as provided in section 71-2113, any person who violates  any
    26  provision  of article nineteen or any code, rule or regulation which was

    27  promulgated pursuant thereto; or any order  except  an  order  directing
    28  such  person  to pay a penalty by a specified date issued by the commis-
    29  sioner pursuant thereto, shall  be  liable,  in  the  case  of  a  first
    30  violation,  for  a  penalty not less than [three] five hundred [seventy-
    31  five] dollars nor more than [fifteen] eighteen thousand dollars for said
    32  violation and an additional penalty of not to  exceed  fifteen  thousand
    33  dollars  for each day during which such violation continues. In the case
    34  of a second or any further violation,  the  liability  shall  be  for  a
    35  penalty  not  to  exceed [twenty-two] twenty-six thousand [five hundred]
    36  dollars for said violation and an additional penalty not to exceed twen-

    37  ty-two thousand five hundred dollars for  each  day  during  which  such
    38  violation  continues.  In  addition thereto, such person may be enjoined
    39  from continuing such violation as hereinafter provided.
    40    § 15. Subdivision 1 of section 71-2105 of the environmental  conserva-
    41  tion  law,  as amended by section 22 of part C of chapter 62 of the laws
    42  of 2003, is amended to read as follows:
    43    1. Except as provided in section 71-2113, any person who shall wilful-
    44  ly violate any of the provisions of article 19  or  any  code,  rule  or
    45  regulation  promulgated  pursuant  thereto or any final determination or
    46  order of the commissioner made pursuant to article 19 shall be guilty of
    47  a misdemeanor, and, upon conviction thereof,  shall  be  punished  by  a
    48  fine,  in  the case of a first conviction, of not less than [three] five

    49  hundred [seventy-five] dollars nor more than [fifteen] eighteen thousand
    50  dollars or by imprisonment for a term of not more than one year,  or  by
    51  both  such  fine  and  imprisonment, for each separate violation. If the
    52  conviction is for an offense committed after  the  first  conviction  of
    53  such  person  under this subdivision, such person shall be punished by a
    54  fine not to  exceed  [twenty-two]  twenty-six  thousand  [five  hundred]
    55  dollars, or by imprisonment, or by both such fine and imprisonment. Each
        S. 7988                            30                           A. 11308
 
     1  day   on  which  such  violation  occurs  shall  constitute  a  separate
     2  violation.
     3    §  16. Section 71-4001 of the environmental conservation law, as added

     4  by chapter 640 of the laws of 1977, as renumbered by chapter 732 of  the
     5  laws  of 1980 and the opening paragraph as amended by chapter 602 of the
     6  laws of 2003, is amended to read as follows:
     7  § 71-4001. General criminal penalty.
     8    Except as otherwise specifically provided elsewhere in  [the  environ-
     9  mental  conservation law] this chapter or in the penal law, (a) a person
    10  who violates any provision of [the environmental conservation law]  this
    11  chapter,  or any rule, regulation or order promulgated pursuant thereto,
    12  or the terms or conditions of any permit  issued  thereunder,  shall  be
    13  guilty of a violation; (b) each day on which such violation occurs shall
    14  constitute  a  separate  violation;  and (c) for each such violation the
    15  person shall be subject upon conviction to  imprisonment  for  not  more

    16  than  fifteen  days  or  to  a  fine of not more than [two] nine hundred
    17  [fifty] dollars, or to both such imprisonment and such fine.
    18    § 17. Section  71-4003  of  the  environmental  conservation  law,  as
    19  amended  by  chapter  76  of  the  laws  of  1982, is amended to read as
    20  follows:
    21  § 71-4003. General civil penalty.
    22    Except as otherwise specifically provided elsewhere in  [the  environ-
    23  mental  conservation  law]  this  chapter,  a  person  who  violates any
    24  provision of [the environmental conservation law] this chapter,  or  any
    25  rule,  regulation or order promulgated pursuant thereto, or the terms or
    26  conditions of any permit issued thereunder, shall be liable to  a  civil

    27  penalty  of  not  more  than [five hundred] one thousand dollars, and an
    28  additional civil penalty of not more than [five  hundred]  one  thousand
    29  dollars  for  each  day  during which each such violation continues. Any
    30  civil penalty provided for by this chapter may be assessed  following  a
    31  hearing or opportunity to be heard.
    32    §  18. Severability clause. If any clause, sentence, paragraph, subdi-
    33  vision, section or part of this act shall be adjudged by  any  court  of
    34  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    35  impair, or invalidate the remainder thereof, but shall  be  confined  in
    36  its  operation  to the clause, sentence, paragraph, subdivision, section
    37  or part thereof directly involved in the controversy in which such judg-
    38  ment shall have been rendered. It is hereby declared to be the intent of

    39  the legislature that this act would  have  been  enacted  even  if  such
    40  invalid provisions had not been included herein.
    41    §  19.  This act shall take effect immediately; provided that sections
    42  one, two and six through ten of this act shall be deemed to have been in
    43  full force and effect on and after April 1, 2010.