S02782 Summary:

Add Art 27 Title 22 SS27-2201 - 27-2207, S71-2730, En Con L
Enacts the "food service waste reduction act"; provides for a prohibition on the use of certain disposable food service ware; provides definitions and sanctions.
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S02782 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                    IN SENATE
                                    January 29, 2015
        Introduced   by  Sens.  KRUEGER,  HASSELL-THOMPSON,  SERRANO,  SQUADRON,
          STEWART-COUSINS -- read twice and ordered printed, and when printed to
          be committed to the Committee on Environmental Conservation
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          prohibiting the use of certain food packaging and plastic food service
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "food service waste reduction act".
     3    §  2.  Article  27 of the environmental conservation law is amended by
     4  adding a new title 22 to read as follows:
     5                                  TITLE 22
     6                         FOOD SERVICE WASTE REDUCTION
     7  Section 27-2201. Definitions.
     8          27-2203. Prohibited disposable food service ware.
     9          27-2205. Required  compostable  or  recyclable  disposable  food
    10                     service ware.
    11          27-2207. Powers of municipalities.
    12  § 27-2201. Definitions.
    13    1.  "Affordable"  means  purchasable for not more than fifteen percent
    14  more than the purchase cost of the non-biodegradable non-compostable  or
    15  non-recyclable alternative.
    16    2. "ASTM standard" means meeting the standards of the American Society
    17  for  Testing and Materials (ASTM) International standards D6400 or D6868
    18  for biodegradable and compostable plastics as  those  standards  may  be
    19  amended.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 2782                             2
     1    3.  "Compostable"  means  all  the materials in the product or package
     2  will break down into, or otherwise become part of usable compost  (e.g.,
     3  soil-conditioning  material,  mulch)  in  a safe and timely manner in an
     4  appropriate composting program or  facility or in a home compost pile or
     5  device.  Compostable  disposable  food  service ware includes, by way of
     6  example, ASTM standard bio-plastics  (plastic-like  products)  that  are
     7  clearly  labeled,  preferably with a color symbol, such that any compost
     8  collector  and  processor  can  easily  distinguish  the  ASTM  standard
     9  compostable  plastic from non-ASTM standard compostable plastic. For the
    10  purposes of this title the term biodegradable shall have the same  mean-
    11  ing as compostable. This title uses the terms biodegradable and compost-
    12  able  interchangeably  and in all cases whether the terms are used sepa-
    13  rately, in the disjunctive or in the conjunctive they  shall  always  be
    14  interpreted  and  applied  consistent  with  this definition of the term
    15  "compostable".
    16    4. "Municipal contractors and lessees" means any person or entity that
    17  has a contract with the municipality for public works or improvements to
    18  be performed, for a franchise, concession  or  lease  of  property,  for
    19  grant  monies  or  goods and services or supplies to be purchased at the
    20  expense of the municipality or to be paid out of monies deposited in the
    21  treasury or out of trust monies under the control or  collected  by  the
    22  municipality.
    23    5. "Municipal facility" means any building, structure or vehicle owned
    24  or operated by the municipality.
    25    6.  "Municipal  facility food provider" means an entity that provides,
    26  but does not sell, prepared food in municipal facilities.
    27    7. "Disposable food service ware" means all containers, bowls, plates,
    28  trays, cartons, cups, lids, straws, forks, spoons, knives,  napkins  and
    29  other  items  that  are  designed  for  one-time use for prepared foods,
    30  including without limitation, service  ware  for  takeout  foods  and/or
    31  leftovers  from  partially  consumed meals prepared by food vendors. The
    32  term "disposable food service ware"  does  not  include  items  composed
    33  entirely of aluminum or polystyrene foam coolers and ice chests that are
    34  intended  for  reuse  nor does this term include recyclable food service
    35  ware.
    36    8. "Food vendor" means any restaurant or retail food vendor located or
    37  operating within the municipality.
    38    9. "Municipality" means the same as such term is  defined  in  section
    39  27-0501 of this article.
    40    10.  "Person"  means  an individual, trust, firm, joint stock company,
    41  corporation, including a government corporation, partnership, or associ-
    42  ation.
    43    11. "Polystyrene foam" means  blown  polystyrene  and  expanded  foams
    44  utilizing  a  styrene monomer and processed by any number of techniques.
    45  Polystyrene foam is generally used to make cups, bowls,  plates,  trays,
    46  clamshell containers, meat trays and egg cartons.
    47    12. "Prepared food" means food or beverages, which are serviced, pack-
    48  aged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or other-
    49  wise  prepared  (collectively  "prepared")  for  individual customers or
    50  consumers. For the purpose of this title, prepared food includes takeout
    51  food, but does not include raw, butchered  meats,  fish  and/or  poultry
    52  sold from a butcher case or similar retail appliance.
    53    13.  "Recyclable"  means  material  that  can  be sorted, cleansed and
    54  reconstituted using available  recycling  collection  programs  for  the
    55  purpose  of  using the altered form in the manufacture of a new product.

        S. 2782                             3
     1  Recycling does not include burning, incinerating, converting, or  other-
     2  wise thermally destroying solid waste.
     3    14. "Restaurant" means any establishment located within a municipality
     4  that  sells prepared food for consumption on, near, or off its premises.
     5  For purposes of this title, the term  includes  a  restaurant  operating
     6  from a temporary facility, cart, vehicle or mobile unit.
     7    15. "Retail food vendor" means any store, shop, sales outlet, or other
     8  establishment,  including  a  grocery store, delicatessen or restaurant,
     9  located within the municipality that sells prepared food.
    10  § 27-2203. Prohibited disposable food service ware.
    11    1. Retail food vendors shall not sell prepared food in disposable food
    12  service ware that contains polystyrene foam.
    13    2. Municipal facility food providers shall not provide  prepared  food
    14  in disposable food service ware that contains polystyrene foam.
    15    3. Municipal departments shall not purchase, acquire or use disposable
    16  food service ware that contains polystyrene foam.
    17    4.  Municipal  contractors  and  lessees shall not use disposable food
    18  service ware that contains polystyrene foam in municipal facilities  and
    19  while performing under a municipal contract or lease.
    20  §  27-2205. Required  compostable  or recyclable disposable food service
    21                ware.
    22    1. All food vendors using any disposable food service ware shall use a
    23  suitable  affordable  alternative  compostable  or  recyclable  product,
    24  unless there is no suitable affordable compostable or recyclable product
    25  available  as  determined  by  the  municipality in accordance with this
    26  subdivision. Not later than thirty days before  the  effective  date  of
    27  this  title,  the  commissioner shall adopt a list of available suitable
    28  affordable compostable or recyclable alternatives for each product type.
    29  The municipality shall regularly update the list.
    30    2. All municipal facility food  providers  and  municipal  departments
    31  using any disposable food service ware shall use compostable or recycla-
    32  ble disposable food service ware unless there is no affordable composta-
    33  ble or recyclable product available as determined by the municipality in
    34  accordance with subdivision one of section 27-2203 of this title.
    35    3. Municipal contractors and lessees using any disposable food service
    36  ware shall use compostable or recyclable disposable food service ware in
    37  municipal  facilities and while performing under a municipal contract or
    38  lease unless there is no affordable compostable  or  recyclable  product
    39  available  as determined by the municipality in accordance with subdivi-
    40  sion one of section 27-2203 of this title.
    41  § 27-2207. Powers of municipalities.
    42    1.  Any municipality may promulgate regulations, ordinances,  or  laws
    43  to  take any and all other reasonable actions necessary to implement and
    44  enforce this title.
    45    2. Any person may seek a  waiver  from  the  requirements  of  section
    46  27-2205  of  this  title  by  filing a request on a form provided by the
    47  municipality. The municipality may, consistent with  this  title,  waive
    48  any specific requirement of this title for a period of up to one year if
    49  the  person  seeking the waiver has demonstrated that strict application
    50  of the requirement would create an undue hardship or practical difficul-
    51  ty not generally applicable to other persons in  similar  circumstances.
    52  The  municipality's  decision to grant or deny such a waiver shall be in
    53  writing and shall be final.
    54    3.  All municipal contracts and leases, including without  limitation,
    55  contracts  with  municipal  facility  food  providers, shall contain the
    56  following minimum language: "Contractor agrees to comply fully with  and

        S. 2782                             4
     1  be  bound  by  all of the provisions of the food service waste reduction
     2  act, as provided in title 22 of article 27 of the environmental  conser-
     3  vation law, including the remedies provided, and implementing guidelines
     4  and  rules. The provisions of such law are incorporated herein by refer-
     5  ence and made a part of this agreement as though fully set  forth.  This
     6  provision  is  a  material term of this agreement. By entering into this
     7  agreement, contractor agrees that if it breaches this provision, munici-
     8  pality will suffer actual damages that will be impractical or  extremely
     9  difficult  to  determine; further, contractor agrees that the sum of one
    10  hundred dollars ($100.00) liquidated damages for the first  breach,  two
    11  hundred  dollars  ($200.00)  liquidated damages for the second breach in
    12  the same year, and five hundred dollars ($500.00) liquidated damages for
    13  subsequent breaches in the same year is a  reasonable  estimate  of  the
    14  damage  that municipality will incur based on the violation, established
    15  in light of the circumstances existing at the time  this  agreement  was
    16  made.  Such amounts shall not be considered a penalty, but rather agreed
    17  monetary damages sustained by municipality because of contractor's fail-
    18  ure to comply with this provision."
    19    § 3. The environmental conservation law is amended  by  adding  a  new
    20  section 71-2730 to read as follows:
    21  § 71-2730. Enforcement of sections 27-2203 and 27-2205.
    22    1.  The  municipality  shall issue a written warning to any person the
    23  municipality determines is violating section 27-2203 or 27-2205 of  this
    24  chapter.  If after issuing a written warning of violation from the muni-
    25  cipality, the municipality finds that person continues  to  violate  the
    26  provisions  of  section  27-2203 or 27-2205 of this chapter, the munici-
    27  pality may impose the various sanctions provided in this section.
    28    2. Any person who  violates  the  provisions  of  section  27-2203  or
    29  27-2205  of this chapter shall be guilty of a violation. If charged as a
    30  violation, upon conviction thereof, such person shall  be  punished  for
    31  the  first  offense by a fine of not more than one hundred dollars for a
    32  first violation;  not  more  than  two  hundred  dollars  for  a  second
    33  violation  in  the same year and not more than two hundred fifty dollars
    34  for each subsequent violation in the same year.
    35    3. The municipality may issue an administrative civil liability  cita-
    36  tion  to  such person in an amount not exceeding one hundred dollars for
    37  the first violation, an amount not exceeding two hundred dollars for the
    38  second violation, and not more than two hundred fifty dollars  for  each
    39  subsequent violation against the same person.
    40    §  4.  This act shall take effect on the three hundred sixty-fifth day
    41  after it shall have become a law.
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