SB4522 Summary:

Add Art 27 Title 16 §§27-1601 - 27-1617, En Con L
Relates to establishing a product stewardship program for primary batteries.
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SB4522 Actions:

04/13/2016PRINT NUMBER 4522A
05/06/2016PRINT NUMBER 4522B
06/06/2016PRINT NUMBER 4522C
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SB4522 Text:

                STATE OF NEW YORK
            Cal. No. 1440
                               2015-2016 Regular Sessions
                    IN SENATE
                                     March 26, 2015
        Introduced  by  Sens. AVELLA, LATIMER -- read twice and ordered printed,
          and when printed to be committed to  the  Committee  on  Environmental
          Conservation  -- recommitted to the Committee on Environmental Conser-
          vation  in  accordance  with  Senate  Rule  6,  sec.  8  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  --  committee  discharged,  bill amended, ordered
          reprinted as amended and recommitted to said  committee  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee -- committee discharged and said bill committed to
          the Committee on Rules -- reported favorably from  said  committee  to
          third  reading,  amended and ordered reprinted, retaining its place in
          the order of third reading
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          establishing a product stewardship program for primary batteries
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Article 27 of the environmental conservation law is amended
     2  by adding a new title 16 to read as follows:
     3                                  TITLE 16
     4                             PRODUCT STEWARDSHIP
     5                            FOR PRIMARY BATTERIES
     6  Section 27-1601. Definitions.
     7          27-1603. Primary battery registration.
     8          27-1605. Primary battery stewardship plan.
     9          27-1607. Annual report; plan audit.
    10          27-1609. Agency responsibilities.
    11          27-1611. Retailer obligations.
    12          27-1613. Administrative fee.
    13          27-1615. Penalties.
    14          27-1617. Rulemaking; procedure.
    15  § 27-1601. Definitions.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4522--D                          2
     1    When used in this title:
     2    1. "Department" means the department of environmental conservation.
     3    2.  "Brand" means a name, symbol, word, or traceable mark that identi-
     4  fies  a  primary battery and attributes the primary battery to the owner
     5  or licensee of the brand as the producer.
     6    3. "Collection rate" means a percentage by weight that  each  producer
     7  or  producers collects by an established date. The collection rate shall
     8  be calculated by weight based on the  percentage  of  primary  batteries
     9  that  are  collected  during a calendar year, as compared to the average
    10  weight of primary batteries that were estimated to have been sold in the
    11  state by participating producers  during  the  three  previous  calendar
    12  years.  Estimates of primary batteries sold in the state may be based on
    13  a reasonable pro rata calculation based on national sales.
    14    4. "Consumer" means any person who  returns  any  number  of  unwanted
    15  primary batteries.
    16    5.  "Discarded  primary  battery"  means  a primary battery that is no
    17  longer used for its manufactured purpose, wanted by its  owner,  or  for
    18  any  other  reason  enters  the waste collection, recovery, treatment or
    19  recycling system.
    20    6. "Easily removable" means readily detachable by a person without the
    21  use of tools or with the use of common household tools.
    22    7. "Primary battery" means  a  nonrechargeable  battery  weighing  two
    23  kilograms  or  less, including alkaline, carbon-zinc, and lithium metal.
    24  Primary battery shall not mean:
    25    (A) Batteries intended for industrial, business to business,  warranty
    26  or maintenance services, or nonpersonal use;
    27    (B)  A  battery  that is not easily removable or is not intended to be
    28  removed from a consumer product; and
    29    (C) A battery that is sold or used in a medical  device  regulated  by
    30  the United States Food and Drug Administration.
    31    8. "Primary battery stewardship plan" or "plan" means a plan submitted
    32  to  the  commissioner  pursuant  to  section 27-1605 of this title by an
    33  individual producer or by two or more producers acting collectively.
    34    9. "Producer" means one of the following  with  regard  to  a  primary
    35  battery that is sold, offered for sale, or distributed in the state:
    36    a.  a  person who manufactures a primary battery and who sells, offers
    37  for sale, or distributes that primary battery in  the  state  under  the
    38  person's own name or brand;
    39    b.  if  subparagraph  a of this paragraph does not apply, a person who
    40  owns or licenses a trademark or brand under which a primary  battery  is
    41  sold,  offered for sale, or distributed in the state, whether or not the
    42  trademark is registered; or
    43    c. if subparagraphs a and b of this paragraph do not apply,  a  person
    44  who imports a primary battery into the state for sale or distribution.
    45    10.  "Program"  or  "stewardship  program"  means  the  system for the
    46  collection, transportation, recycling, and disposal of primary batteries
    47  implemented pursuant to an approved primary battery stewardship plan.
    48    11. "Rechargeable battery" shall have the same meaning as  subdivision
    49  four of section 27-1803 of this article.
    50    12.  "Recycling" means any process by which discarded products, compo-
    51  nents, and by-products are transformed into  new  usable  or  marketable
    52  materials  in  a  manner  in  which the original products may lose their
    53  identity, but does not include energy recovery or energy  generation  by
    54  means of combusting discarded products, components, and by-products with
    55  or without other waste products.

        S. 4522--D                          3
     1    13. "Retailer" means a person who offers a primary battery for sale to
     2  any  consumer  or  business  at  retail  in the state through any means,
     3  including remote offerings such as  sales  outlets,  catalogues,  or  an
     4  internet website.
     5  § 27-1603. Primary battery registration.
     6    1.  Sale  prohibited.  Beginning January first, two thousand eighteen,
     7  except as set forth under this subdivision,  a  producer  of  a  primary
     8  battery  shall  not  sell,  offer for sale, or deliver to a retailer for
     9  subsequent sale a primary battery unless all of the following  has  been
    10  met:
    11    a. the producer is registered under an approved and implemented prima-
    12  ry battery stewardship plan;
    13    b.  the  producer or producers have paid the fee under section 27-1613
    14  of this title; and
    15    c. the producer or producers and the brand of such producer or produc-
    16  ers designated on the department website are identified as covered by an
    17  approved primary battery stewardship plan.
    18    2. New producers. A producer who, after January  first,  two  thousand
    19  eighteen,  seeks  to  sell,  offer  for  sale,  or offer for promotional
    20  purposes in the state a primary  battery  not  previously  sold  in  the
    21  state,  shall  notify  the  commissioner  prior to selling or offering a
    22  product not covered by a stewardship plan in the state. The commissioner
    23  shall list a producer who supplies notice under this  subdivision  as  a
    24  "new  producer"  on  the department's website.  A producer that supplies
    25  notice under this subdivision shall have ninety days to either act coop-
    26  eratively with at least one other producer or to submit its own  primary
    27  battery stewardship plan for approval to the state.
    28    3. Exemption. A producer who annually sells, offers for sale, distrib-
    29  utes,  or  imports  in  the  state primary batteries with a total retail
    30  value of less than  five  hundred  dollars  shall  be  exempt  from  the
    31  requirements of this title.
    32  § 27-1605. Primary battery stewardship plan.
    33    1.  Primary  battery  stewardship  plan  required.  On or before April
    34  first, two thousand seventeen, each producer selling, offering for sale,
    35  or offering for promotional purposes a  primary  battery  in  the  state
    36  shall individually or as part of a primary battery stewardship organiza-
    37  tion  submit  a primary battery stewardship plan to the commissioner for
    38  review.
    39    2. Primary battery stewardship plan; minimum requirements. Each prima-
    40  ry battery stewardship plan shall include, at  a  minimum,  all  of  the
    41  following elements:
    42    a. List of producers and brands. Each primary battery stewardship plan
    43  shall list:
    44    (i)  all  participating  producers and contact information for each of
    45  the participating producers; and
    46    (ii) the brands of primary batteries covered by the plan.
    47    b. Free  collection.  Each  primary  battery  stewardship  plan  shall
    48  provide  for  the free collection of primary batteries from consumers. A
    49  producer shall not refuse the collection of a primary battery  based  on
    50  the brand or manufacturer of the primary battery.
    51    c.  Collection;  convenience.  Each  primary  battery stewardship plan
    52  shall:
    53    (i) allow all retailers that sell primary batteries or primary batter-
    54  y-containing products covered under the plan and all  municipalities  to
    55  opt to be a collection facility;

        S. 4522--D                          4
     1    (ii)  provide,  at  a  minimum, no fewer than two permanent collection
     2  facilities in each county in the state; and
     3    (iii)  provide  for  the  acceptance  from  a consumer of up to twenty
     4  batteries per visit. A collection facility may agree to accept more than
     5  twenty batteries per visit from a consumer.
     6    d. Method of disposition. Each primary battery stewardship plan  shall
     7  include a description of the method that will be used to responsibly and
     8  properly  manage  discarded primary batteries and ensure that the compo-
     9  nents of the discarded primary batteries, to the extent economically and
    10  technically feasible, are recycled.
    11    e. Roles and responsibilities.  A  primary  battery  stewardship  plan
    12  shall list all key participants in the primary battery collection chain,
    13  including:
    14    (i) the number and name of the collection facilities accepting primary
    15  batteries  under the plan, including the address and contact information
    16  for each facility;
    17    (ii) the name and contact information of a transporter  or  contractor
    18  collecting primary batteries from collection facilities; and
    19    (iii)  the  name,  address,  and  contact information of the recycling
    20  facilities that process the collected primary batteries.
    21    f. Education and outreach. A primary battery  stewardship  plan  shall
    22  include  an  education  and outreach program. The education and outreach
    23  program may include media  advertising,  retail  displays,  articles  in
    24  trade  and other journals and publications, and other public educational
    25  efforts. The education and outreach program shall describe the  outreach
    26  procedures  that  will be used to provide notice of the program to busi-
    27  nesses, municipalities, retailers, wholesalers, and transporters.  At  a
    28  minimum,  the  education and outreach program shall notify the public of
    29  the following:
    30    (i) that there is a free collection program for all primary batteries;
    31  and
    32    (ii)  the  location  of  collection  points  and  how  to  access  the
    33  collection program.
    34    3. Implementation. A producer or producers shall include provisions in
    35  the plan for the implementation of the program in conjunction with those
    36  retailers  and  municipalities  acting  as collection facilities under a
    37  program. Implementation of the program shall be at no cost to  retailers
    38  or  municipalities  acting  as  collection facilities under a program. A
    39  producer shall provide retailers and municipalities acting as collection
    40  facilities products or equipment for setting up a collection  point  and
    41  for  providing  for the pickup of collected primary batteries, including
    42  arranging for the management of those primary batteries.
    43  § 27-1607. Annual report; plan audit.
    44    1. Annual report. On or before April first, two thousand nineteen, and
    45  annually thereafter, a producer or a primary battery stewardship  organ-
    46  ization  shall  submit  a  report  to the commissioner that contains the
    47  following:
    48    a. the weight of  primary  batteries  collected  by  the  producer  or
    49  producers acting cooperatively in the prior calendar year;
    50    b. the collection rate achieved in the prior calendar year;
    51    c.  specifies  the  collection  facilities that failed in the previous
    52  calendar year to collect a minimum of one hundred pounds  by  weight  of
    53  primary batteries and whether these collection facilities will be elimi-
    54  nated  from the producer's plan or the plan of producers acting coopera-
    55  tively;

        S. 4522--D                          5
     1    d. the locations for all collection points set  up  by  the  producers
     2  covered by the plan and contact information for each location;
     3    e.  examples and description of educational materials used to increase
     4  collection;
     5    f. the manner in which the collected primary batteries were managed;
     6    g. any material change to the primary battery stewardship plan; and
     7    h. the cost of implementation of the program, including the  costs  of
     8  collection, recycling, education, and outreach.
     9    2. Plan audit. Once every five years, a producer or stewardship organ-
    10  ization shall hire an independent third party to audit the plan and plan
    11  operation. The auditor shall examine the effectiveness of the program in
    12  collecting  and  recycling  primary  batteries.  The independent auditor
    13  shall examine the cost-effectiveness of the program and  compare  it  to
    14  that  of  collection  programs  for primary batteries in other jurisdic-
    15  tions.   The independent  auditor  shall  make  recommendations  to  the
    16  commissioner  on  ways  to increase program efficacy and cost-effective-
    17  ness.
    18  § 27-1609. Agency responsibilities.
    19    1. Approval of plan. Within ninety days after receipt  of  a  proposed
    20  stewardship  plan,  the  commissioner  shall  determine whether the plan
    21  complies with the requirements of section 27-1605 of this title. If  the
    22  commissioner  approves  a plan, the commissioner shall notify the appli-
    23  cant of the plan approval in writing.  If  the  commissioner  rejects  a
    24  plan,  the  commissioner  shall  notify  the applicant in writing of the
    25  reasons for rejecting the plan. An applicant whose plan is  rejected  by
    26  the  commissioner shall submit a revised plan to the commissioner within
    27  forty-five days of receiving notice of rejection.
    28    2. Plan amendment; changes. Any changes to a proposed stewardship plan
    29  shall be approved by the commissioner in writing. The  commissioner,  in
    30  his  or  her  discretion  or at the request of a producer, may require a
    31  producer or producers to amend an approved plan.
    32    3. Public  notice.  The  commissioner  shall  post  all  proposed  and
    33  approved primary battery stewardship plans on the department's website.
    34    4.  Public  input.  The  commissioner  shall establish a process under
    35  which a primary battery stewardship plan,  prior  to  plan  approval  or
    36  amendment, is available for public review and comment.
    37    5.  Registrations.  The commissioner shall accept, review, and approve
    38  or deny  primary  battery  stewardship  plans  submitted  under  section
    39  27-1605 of this title.
    40    6.  Agency  website.  The  commissioner  shall maintain a website that
    41  includes the names of producers with approved plans or participation  in
    42  approved  plans.  The  website  shall list all of an approved producer's
    43  brands covered by the stewardship plan filed with the commissioner.  The
    44  commissioner  shall update information on the website within ten days of
    45  receipt of notice of any change to the listed information.
    46    7. Term of  stewardship  plan.  A  primary  battery  stewardship  plan
    47  approved by the commissioner under this section shall have a term not to
    48  exceed five years, provided that the producer remains in compliance with
    49  the requirements of this title and the terms of the approved plan.
    50  § 27-1611. Retailer obligations.
    51    1.  Sale prohibited. Except as set forth under subdivision two of this
    52  section, beginning January first, two  thousand  eighteen,  no  retailer
    53  shall  sell  or offer for sale a primary battery unless the retailer has
    54  reviewed the department's website required in subdivision six of section
    55  27-1609 of this title to determine that  the  producer  of  the  primary
    56  battery is implementing an approved battery stewardship plan.

        S. 4522--D                          6
     1    2.  Inventory  exception;  expiration  or  revocation  of manufacturer
     2  registration. A retailer shall not be responsible for an  unlawful  sale
     3  of a primary battery under this section if:
     4    a.  the retailer purchased the primary battery prior to January first,
     5  two thousand eighteen and sells the battery  or  product  on  or  before
     6  January first, two thousand nineteen; or
     7    b.  the  producer's  stewardship  plan expired or was revoked, and the
     8  retailer took possession of the in-store inventory of primary  batteries
     9  prior  to  the  expiration  or  revocation of the producer's stewardship
    10  plan.
    11  § 27-1613. Administrative fee.
    12    1. Fee assessed. A producer acting individually shall  pay  a  fee  of
    13  seven thousand five hundred dollars annually and a producer acting coop-
    14  eratively  with  at  least one other producer shall pay a fee of fifteen
    15  thousand  dollars  annually  for  operation  under  a  stewardship  plan
    16  approved by the commissioner under section 27-1609 of this title.
    17    2.  Disposition  of  fee.  The fees collected under subdivision one of
    18  this section shall be deposited in the  hazardous  waste  remedial  fund
    19  under section ninety-seven-b of the state finance law.
    20  § 27-1615. Penalties.
    21    A  producer  who  violates  the  requirements  of  this title shall be
    22  subject to a civil penalty not to exceed one thousand  dollars  per  day
    23  for each day of noncompliance.
    24  § 27-1617. Rulemaking; procedure.
    25    The  commissioner  may  adopt  rules  or  procedures  to implement the
    26  requirements of this title.
    27    § 2. The department of  environmental  conservation  shall  work  with
    28  primary  battery manufacturers to explore ways to develop labeling high-
    29  lighting the existence of battery recycling programs.
    30    § 3. This act shall take effect on the one hundred eightieth day after
    31  it shall have become a law.
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