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A05322 Summary:

BILL NOA05322D
 
SAME ASSAME AS S04246-D
 
SPONSORGlick
 
COSPNSRBurdick, Rosenthal L, Thiele, Paulin, Shimsky, Colton, Reyes, Carroll, Darling, Rajkumar, Dickens, Gonzalez-Rojas, Lunsford, Gallagher, Burke, Steck, Kelles, Levenberg, Raga, Simon, Cunningham, Simone, Shrestha, De Los Santos, Tapia, O'Donnell, Fahy, Eachus, Lavine, Seawright, Dinowitz, Epstein, Hevesi, Alvarez, Forrest, Otis, Gibbs, Stirpe, Ardila, Rivera, Cruz, Anderson, Sillitti, Aubry, Ramos, Weprin, Zinerman, Mamdani, Gunther, Mitaynes, Bichotte Hermelyn, Lee, Barrett, Jacobson, Stern, McMahon, Kim, Taylor, Clark, Burgos, Sayegh, Solages, Wallace, Benedetto, Jackson, Pretlow, Meeks, Conrad, McDonald, Davila, Williams, Bores, Brown K, Bronson, Lucas
 
MLTSPNSR
 
Add Art 27 Title 34 §§27-3401 - 27-3445, §37-0202, En Con L
 
Enacts the "packaging reduction and recycling infrastructure act" to require companies selling, offering for sale, or distributing packaging materials and products to register with a packaging reduction organization to develop a packaging reduction and recycling plan.
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A05322 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5322--D
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 7, 2023
                                       ___________
 
        Introduced  by  M.  of  A. GLICK, BURDICK, L. ROSENTHAL, THIELE, PAULIN,
          SHIMSKY, COLTON, REYES, CARROLL, DARLING,  RAJKUMAR,  DICKENS,  GONZA-
          LEZ-ROJAS, LUNSFORD, GALLAGHER, BURKE, STECK, KELLES, LEVENBERG, RAGA,
          SIMON,  CUNNINGHAM, SIMONE, SHRESTHA, DE LOS SANTOS, TAPIA, O'DONNELL,
          FAHY, EACHUS, LAVINE, SEAWRIGHT, DINOWITZ, EPSTEIN,  HEVESI,  ALVAREZ,
          FORREST,  OTIS, GIBBS, STIRPE, ARDILA, RIVERA, CRUZ, ANDERSON, SILLIT-
          TI,  AUBRY,  RAMOS,  WEPRIN,  ZINERMAN,  MAMDANI,  GUNTHER,  MITAYNES,
          BICHOTTE HERMELYN, LEE, BARRETT, JACOBSON, STERN, ROZIC, McMAHON, KIM,
          TAYLOR,  CLARK,  BURGOS, SAYEGH, SOLAGES, WALLACE, BENEDETTO, JACKSON,
          PRETLOW, MEEKS, CONRAD, McDONALD, DAVILA, WILLIAMS,  BORES,  K. BROWN,
          JEAN-PIERRE, BRONSON, LUCAS -- read once and referred to the Committee
          on  Environmental  Conservation -- committee discharged, bill amended,
          ordered reprinted as amended and  recommitted  to  said  committee  --
          recommitted  to the Committee on Environmental Conservation in accord-
          ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- reported and referred to the Committee on Codes -- reported and
          referred to the Committee on Ways and Means -- reported  and  referred
          to the Committee on Rules -- Rules Committee discharged, bill amended,
          ordered reprinted as amended and recommitted to the Committee on Rules
          --  again  reported  from  said  committee  with  amendments,  ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          enacting the packaging reduction and recycling infrastructure act
 
          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 "packaging reduction and recycling infrastructure act".
     3    §  2.  Article  27 of the environmental conservation law is amended by
     4  adding a new title 34 to read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08868-22-4

        A. 5322--D                          2
 
     1                                  TITLE 34
     2            PACKAGING REDUCTION AND RECYCLING INFRASTRUCTURE ACT
     3  Section 27-3401. Definitions.
     4          27-3403. Selection  of  packaging reduction and recycling organ-
     5                    izations.
     6          27-3405. Responsibilities of packaging reduction  and  recycling
     7                    organizations.
     8          27-3407. Packaging reduction and recycling organization plan.
     9          27-3409. Packaging reduction and recycling plan approval.
    10          27-3411. Packaging reduction and recycling advisory council.
    11          27-3413. Funding mechanism.
    12          27-3415. Collection and convenience.
    13          27-3417. Producer responsibilities.
    14          27-3419. Department responsibilities.
    15          27-3421. Statewide  packaging  reduction,  reuse,  and recycling
    16                    needs assessment.
    17          27-3423. Education and outreach program.
    18          27-3425. Prohibition on certain toxic substances and materials.
    19          27-3427. Non-reusable packaging reduction standards.
    20          27-3429. Recycled content standards.
    21          27-3431. Recyclability criteria and packaging recycling require-
    22                    ments.
    23          27-3433. Establishment of  the  office  of  recycling  inspector
    24                    general.
    25          27-3435. Penalties and enforcement.
    26          27-3437. Rules and regulations.
    27          27-3439. State preemption.
    28          27-3441. Other assistance programs.
    29          27-3443. Antitrust protections.
    30          27-3445. Severability.
    31  § 27-3401. Definitions.
    32    As used in this title:
    33    1.  "Advisory  council" or "council" means the packaging reduction and
    34  recycling advisory council established under  section  27-3411  of  this
    35  title.
    36    2.  "Affiliate" means a person who directly, or indirectly through one
    37  or more intermediaries, controls, is controlled by, or is  under  common
    38  control with a producer.
    39    3. "Beverage container" shall have the same meaning as is set forth in
    40  subdivision two of section 27-1003 of this article.
    41    4.  "Brand"  means  any  mark,  word, name, symbol, design, device, or
    42  graphical element or a combination thereof, including  a  registered  or
    43  unregistered trademark, that identifies and distinguishes a product from
    44  other products.
    45    5. "Contamination" means:
    46    (a)  the  presence  of  materials in a given collected material stream
    47  that are not on the minimum recyclables list maintained by  the  depart-
    48  ment; or
    49    (b)  the  presence of materials in a given recycled material delivered
    50  as a feedstock or commodity that are not  specified  or  accepted  as  a
    51  component of the feedstock or commodity.
    52    6.   "Control", including the terms "controlling", "controlled by" and
    53  "under common control with", means the possession, directly or indirect-
    54  ly, of the power to direct or cause the direction of (a) the  management
    55  and policies of a person, (b) the operation of a person, or (c) substan-

        A. 5322--D                          3
 
     1  tially  all  of the assets of a person, whether through the ownership of
     2  voting securities, by contract,  or  otherwise.
     3    7.  "Discarded", "discards", "generated" or "generation" means packag-
     4  ing material that has been used for its intended purpose and is no long-
     5  er needed by consumers, businesses, institutions, and other  users,  and
     6  can be managed through reuse, recycling, or disposal.
     7    8.  "Disposal"  means  the  landfilling or incineration of material or
     8  products.   "Disposal" shall also  include  energy  recovery  or  energy
     9  generation  by  any  means, including, but not limited to, incineration,
    10  combustion, pyrolysis, gasification, or solvolysis, waste-to-energy,  or
    11  waste-to-fuel,  or  any  other  chemical  conversion process. "Disposal"
    12  shall also include the use of materials for landfill cover.
    13    9. "Eco-modulation" means structuring program fees in a way to provide
    14  producers with financial incentives  to  reduce  waste  at  the  source,
    15  increase  recyclability of packaging materials, promote reusable packag-
    16  ing products, including those that are  contained  within  a  reuse  and
    17  refill  system,  discourage  and  decrease contamination, disincentivize
    18  designs or practices that increase the costs and  adverse  environmental
    19  impacts  of  managing the packaging materials, and encourage designs and
    20  processes that improve and facilitate development of infrastructure  and
    21  systems for source reduction, reuse, recycling, and composting.
    22    10.  "Disadvantaged  community"  shall have the same meaning as is set
    23  forth in subdivision five of 75-0101 of this chapter.
    24    11. "Intentionally added substance" means a substance or material that
    25  serves an intended function or technical effect in the product or  prod-
    26  uct  component,  including    as  an intentional breakdown product of an
    27  added chemical that also has a functional or  technical  effect  in  the
    28  product or product component.
    29    12.  "Local  government" means any municipal corporation, governmental
    30  subdivision of the  state,  local  government  unit,  special  district,
    31  school,  local or regional board, commission, or authority authorized by
    32  law to plan or provide for waste  management  services  for  a  specific
    33  geographical area.
    34    13.  "Minimum  recyclables list" means a list of those materials that,
    35  identified by the department in regulations, must be managed through the
    36  packaging reduction and recycling program and by the  local  governments
    37  and  service  providers  that  receive funding or reimbursement from the
    38  program as approved by the department in accordance with section 27-3419
    39  of this title.
    40    14. "Packaging material" or "material" means a  discrete  material  or
    41  category  of  material,  regardless  of recyclability, including but not
    42  limited to such material types that are flexible, foam, or rigid materi-
    43  al, including paper, cardboard, plastic, glass, metal, or  multi-materi-
    44  al,  that  is  used for the containment, protection, handling, delivery,
    45  transport, distribution, or presentation  of  another  product  that  is
    46  sold, offered for sale, imported, or distributed in the state, including
    47  through  an internet transaction, and single-use plastic products. Pack-
    48  aging material does not include:
    49    (a) Medical devices and packaging which  are  included  with  products
    50  regulated as a drug, medical device, or dietary supplement by the United
    51  States  food  and  drug administration under the federal food, drug, and
    52  cosmetic act, 21 U.S.C. 321 et seq., Sec. 3.2(E)  of  21  U.S.  code  of
    53  federal regulations, or the dietary supplement health and education act;
    54    (b)  Animal  biologics, including vaccines, bacterins, antisera, diag-
    55  nostic kits, and other products of biological origin, and other  packag-

        A. 5322--D                          4
 
     1  ing  materials  regulated by the United States department of agriculture
     2  under the virus, serum, toxin act, 21 U.S.C. 151-159;
     3    (c)  Packaging  regulated  by  the Federal Insecticide, Fungicide, and
     4  Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other  applicable  federal
     5  law, rule, or regulation;
     6    (d)  Packaging  used  to contain hazardous or flammable products regu-
     7  lated by the 2012 federal Occupational Safety and Health  Administration
     8  Hazard Communications Standard, 29 C.F.R. 1910.1200;
     9    (e)  Plastic  packaging  containers  used to contain and ship products
    10  that are classified for transportation as dangerous goods  or  hazardous
    11  materials under 40 C.F.R. 178;
    12    (f)  Beverage  containers  subject  to  a returnable container deposit
    13  under title ten of this article;
    14    (g) Infant formula as defined in section 321(z) of  title  21  of  the
    15  United States code of federal regulations;
    16    (h) Medical foods as defined in section 360ee(b)(3) of title 21 of the
    17  United States code of federal regulations; and
    18    (i)  Architectural  paint containers collected and managed pursuant to
    19  title twenty of this article.
    20    15. "Packaging reduction and recycling organization" or "organization"
    21  means a not-for-profit organization registered  pursuant  to  26  U.S.C.
    22  501(c)(3)  designated by the department for the initial organization, or
    23  by a group of producers for subsequent organizations, to act as an agent
    24  on behalf  of  each  producer  to  develop  and  implement  a  packaging
    25  reduction  and  recycling plan pursuant to section 27-3407 of this title
    26  and  comply  with  the  organization's  responsibilities  under  section
    27  27-3405 of this title.
    28    16.  "Packaging  reduction and recycling plan" or "plan" means a docu-
    29  ment in which an organization describes the efforts it will undertake to
    30  comply with the requirements of this title.
    31    17. "Packaging reduction and recycling program" or "program" means the
    32  program implemented by an organization, and overseen by the  department,
    33  to comply with and implement the provisions of this title.
    34    18.  "Post-consumer  recycled  material"  means  new material produced
    35  using material resulting from recycling.
    36    19. "Primary packaging" means the packaging in direct contact with the
    37  product itself, also sometimes referred to as a consumer unit.
    38    20. "Producer" means the following entities, other than local  govern-
    39  ments, state governments and the federal government, for compliance with
    40  the  requirements  for  packaging  materials  sold, offered for sale, or
    41  distributed to consumers in or into this state:
    42    (a) For products sold or served to  consumers  at  a  physical  retail
    43  location in this state which are not single use plastics:
    44    (i)  If  the  product is sold or served in or with packaging under the
    45  product manufacturer's own brand or is sold or served in packaging mate-
    46  rials that lack identification of a brand, the producer  is  the  person
    47  who manufactures the packaged product;
    48    (ii) If there is no person to which subparagraph (i) of this paragraph
    49  applies,  the  producer is the person who is licensed to manufacture and
    50  sell or serve the packaged product  under  the  brand  or  trademark  of
    51  another  manufacturer  or person, whether or not the trademark is regis-
    52  tered in this state, unless the manufacturer of the packaging  materials
    53  has agreed to accept responsibility;
    54    (iii)  If there is no person to which subparagraph (i) or (ii) of this
    55  paragraph applies, the producer is the brand owner of the  product  that
    56  is packaged;

        A. 5322--D                          5
 
     1    (iv)  If  there  is  no  person described in subparagraph (i), (ii) or
     2  (iii) of this paragraph within the United States, the  producer  is  the
     3  person  who  is the importer of record for the packaged product into the
     4  United States for use in a commercial enterprise that sells, offers  for
     5  sale, or distributes the product in this state; or
     6    (v)  If  there  is no person to which subparagraph (i), (ii), (iii) or
     7  (iv) of this paragraph applies, the producer is  the  person  who  first
     8  distributes the packaged product in or into the state.
     9    (b)  For  single  use plastics and for products sold or distributed to
    10  consumers in packaging materials in or into this state via  remote  sale
    11  or distribution:
    12    (i)  The  producer  of packaging materials used to directly protect or
    13  contain the product is the same as the producer defined in paragraph (a)
    14  of this subdivision.
    15    (ii) For packaging materials used to ship the product to  a  consumer,
    16  the  producer  is  the person who packages the item to be shipped to the
    17  consumer.
    18    (c) For any single use plastic product:
    19    (i) If the single use plastic product is sold under the manufacturer's
    20  own brand, the producer is the person who manufactures  the  single  use
    21  plastic product;
    22    (ii) If there is no person to which subparagraph (i) of this paragraph
    23  applies,  the  producer  is the person who is the owner or licensee of a
    24  brand or trademark under which the single use plastic product is used in
    25  a commercial enterprise, sold, offered for sale, or  distributed  in  or
    26  into  this  state,  whether  or  not the trademark is registered in this
    27  state;
    28    (iii) If there is no person to which subparagraph (i) or (ii) of  this
    29  paragraph  applies,  the  producer  is the brand owner of the single use
    30  plastic product;
    31    (iv) If there is no person described in  subparagraph  (i),  (ii),  or
    32  (iii)  of  this  paragraph within the United States, the producer is the
    33  person who imports the single use plastic product into the United States
    34  for use in a commercial enterprise  that  sells,  offers  for  sale,  or
    35  distributes the single use plastic product in this state; or
    36    (v)  If  there is no person described in subparagraph (i), (ii), (iii)
    37  or (iv) of this paragraph, the producer is the person who first distrib-
    38  utes the single use plastic product in or into this state.
    39    (d) Where the producer pursuant to paragraph (a) or (c) of this subdi-
    40  vision is a business operated wholly or in  part  as  a  franchise,  the
    41  producer is the franchisor, if such franchisor has franchisees that have
    42  a commercial presence in the state.
    43    21.  "Product  line"  means  a  group of related products all marketed
    44  under a single brand that is sold by the same  producer  to  distinguish
    45  products from each other for better usability for customers.
    46    22. "Recyclable" means a packaging material that meets the criteria in
    47  subdivision one of section 27-3431 of this title.
    48    23.  "Recycled"  means  the  use  of  discarded packaging materials or
    49  products in the production of a new product or  packaging  in  place  of
    50  virgin  materials.    "Recycled" material does not include contaminants,
    51  residues, and other process losses  or  use  of  materials  as  landfill
    52  cover.
    53    24. "Recycling" means to separate, dismantle or process the materials,
    54  components    or  commodities  contained  in discards for the purpose of
    55  preparing the materials, components, or commodities for use or reuse  in
    56  new  products  or  components.  "Recycling" does not include: (a) energy

        A. 5322--D                          6

     1  recovery or energy generation by any means, including  but  not  limited
     2  to,  combustion,  incineration,  pyrolysis, gasification, solvolysis, or
     3  waste-to-fuel; (b) any chemical  conversion  process;  or  (c)  landfill
     4  disposal.
     5    25.  "Recycling  rate"  means  the percentage of any given material or
     6  category of material that is ultimately recycled. The recycling rate for
     7  any packaging material shall be calculated as the total weight of  pack-
     8  aging  material  that  is  recycled in a given year divided by the total
     9  weight of packaging material generated in that year.
    10    26. "Reuse" means the return  of  packaging  material  back  into  the
    11  economic stream for use in the same kind of application intended for the
    12  original packaging, without effectuating a change in the original compo-
    13  sition  of  the  package, the identity of the product, or the components
    14  thereof.
    15    27. "Reuse and refill system" means a program  or  set  of  mechanisms
    16  designed  to  facilitate  multiple  uses  of  packaging.  Mechanisms may
    17  include,  but  are  not  limited  to,  deposits,  incentives,   curbside
    18  collection,  collection kiosks, refill stations, dishwashing facilities,
    19  and re-distribution networks.
    20    28. "Reusable or refillable packaging and containers" means  packaging
    21  material  and containers that are specifically designed and manufactured
    22  to maintain shape and structure, and be materially durable for  repeated
    23  sanitizing,  washing,  and reuse; provided, however, that such packaging
    24  and containers must comply with the high reuse and refill  rate  as  set
    25  forth in the plan and approved by the department.
    26    29.  "Single  use  plastic"  means  single  use  plastic products that
    27  frequent the residential waste stream or are plastic products that  have
    28  the effect of disrupting recycling processes, including, but not limited
    29  to, single use plastic items such as straws, utensils, cups, plates, and
    30  plastic bags.
    31    30.  "Toxic packaging task force" means the toxic packaging task force
    32  established by subdivision two of section 27-3425 of this title.
    33    31. "Toxic substances" means a chemical or chemical  class  identified
    34  by a state agency, federal agency, international intergovernmental agen-
    35  cy,  accredited  research  university, or other scientific entity deemed
    36  authoritative by the department on  the  basis  of  credible  scientific
    37  evidence as being one or more of the following:
    38    (a) A chemical or chemical class that is a carcinogen, mutagen, repro-
    39  ductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor.
    40    (b)  A  chemical  or chemical class that is persistent or bioaccumula-
    41  tive.
    42    (c) A chemical or chemical class that may harm the normal  development
    43  of  a  fetus or child or cause other developmental toxicity in humans or
    44  wildlife.
    45    (d) A chemical or chemical class that may harm organs or  cause  other
    46  systemic toxicity.
    47    (e)  A  chemical  or  chemical class that may have adverse air quality
    48  impacts, adverse ecological impacts, adverse soil  quality  impacts,  or
    49  adverse water quality impacts.
    50    (f)  A  chemical  or chemical class that the department has determined
    51  has equivalent toxicity to the above criteria.
    52    32. "Unit weight" means the weight of packaging material per  unit  of
    53  product sold.
    54  § 27-3403. Selection of packaging reduction and recycling organizations.
    55    1.  Until the date which is ten years after the effective date of this
    56  title, there shall be only one packaging reduction organization and  all

        A. 5322--D                          7

     1  producers  shall  be  required to register with such packaging reduction
     2  organization.
     3    2. Within six months of the effective date of this title, any not-for-
     4  profit seeking to serve as the initial packaging reduction and recycling
     5  organization shall submit an application on a form and format prescribed
     6  by the department.
     7    3.  Consistent with the requirements of this title, within nine months
     8  of the effective date of this title, the department shall select a  not-
     9  for-profit  organization  applicant  to  act  as  the  initial packaging
    10  reduction and recycling organization to operate the packaging  reduction
    11  and  recycling  program,  and such organization shall then register with
    12  the department in the manner prescribed by the department.
    13    4. Regulations promulgated pursuant to  this  title  may  provide  for
    14  additional organizations beginning ten years after the effective date of
    15  this  title  if,  after ten years and the recommendation by the advisory
    16  council pursuant to subdivision ten of section 27-3411  of  this  title,
    17  the  department  determines  that it would be beneficial for there to be
    18  additional organizations  implementing  the  program,  such  regulations
    19  shall ensure:
    20    (a) consistency and  coordination between all organizations;
    21    (b) responsibilities carried out are consistent and seamless;
    22    (c) local governments and service providers are reimbursed for recycl-
    23  ing services as required under this title; and
    24    (d)  that  packaging  material requirements are not reported as gener-
    25  ated, supplied or managed by more than one organization.
    26  § 27-3405. Responsibilities of packaging reduction and recycling  organ-
    27               izations.
    28    1. Producers shall register with a packaging reduction organization to
    29  meet  the  responsibilities of the program pursuant to the provisions of
    30  this section, and each organization shall be responsible for implementa-
    31  tion of the program on behalf of producers registered with  such  organ-
    32  ization.
    33    2.    Each  organization involved in the administration of the program
    34  shall:
    35    (a) Develop a packaging reduction and recycling plan and  submit  such
    36  plan  to  the  advisory  council  for  review and comment, and after any
    37  modifications in response to such  comments,  submit  the  plan  to  the
    38  commissioner for approval pursuant to section 27-3407 of this title;
    39    (b)  Collect  and  compile  data from producers as required by section
    40  27-3417 of this title;
    41    (c)  Calculate  reimbursement  rates  through  the  objective  formula
    42  approved  by the department as contemplated by paragraph (e) of subdivi-
    43  sion four of section 27-3407 of this  title  for  the  costs  associated
    44  with  this  title, the implementation   of  reduction, refill, and reuse
    45  programs, and the collection, transportation  and  recycling,  or  other
    46  processing of packaging materials;
    47    (d)  Collect fees due from producers as required by section 27-3413 of
    48  this title;
    49    (e) Reimburse the department and any other relevant state agencies for
    50  the costs associated with  conducting  the  statewide  needs  assessment
    51  required  by  section  27-3421  of this title, the administration of the
    52  program by the department, and the expenses of the advisory council  and
    53  the toxic packaging task force;
    54    (f) Distribute funds to reimburse local governments and private compa-
    55  nies for the costs associated with this title, including the implementa-
    56  tion  of  reduction,  refill,  and  reuse  programs, and the collection,

        A. 5322--D                          8

     1  transportation and recycling, disposal or other processing of  packaging
     2  materials;
     3    (g)  Undertake  an  effective  statewide education and public outreach
     4  program as required by section 27-3423 of this title;
     5    (h) Offer technical support to producers, with an emphasis on  support
     6  to  small  businesses,  to assist them with compliance with the require-
     7  ments of this title, including information  about  procuring  affordable
     8  alternatives  to non-compliant packaging material and reducing packaging
     9  material; and
    10    (i) Make recommendations to the department  regarding  investments  in
    11  reduction,   refill,   reuse,   collection,  transportation,  recycling,
    12  disposal, and other processing of packaging  materials  consistent  with
    13  this title.
    14    3. Annually, each organization shall submit a report to the department
    15  that, at a minimum, must include the following information:
    16    (a) Contact information for the organization;
    17    (b)  A list of all (i) producers, (ii) brands, and (iii) products that
    18  each producer sells, offers for sale, or distributes into the state that
    19  are contained, protected, delivered, presented,  or  distributed  in  or
    20  using packaging material, in each case identified by the Universal Prod-
    21  uct Code (UPC) if the product has one;
    22    (c) The total amount, by both weight and number of units, which may be
    23  estimated  if  an exact amount is infeasible to provide, of each type of
    24  packaging material used to contain, protect, handle, deliver, transport,
    25  distribute, or present products sold, offered for sale,  or  distributed
    26  into  the  state  by  each individual producer during the prior calendar
    27  year;
    28    (d) The total amount, by both weight and  number  of  units,  of  each
    29  material  used to contain, protect, handle, deliver, transport, distrib-
    30  ute, or present products sold, offered for sale, or distributed into the
    31  state by all producers during the prior calendar year;
    32    (e) The total amount, by weight, of each material category recycled as
    33  a result of activities undertaken by the organization, either   directly
    34  or through reimbursement or contractual arrangement;
    35    (f)  A  calculation  of  the  recycling rate of each material category
    36  which is derived by dividing the amount of each material category  recy-
    37  cled,  as reported in paragraph (e) of this subdivision by the amount of
    38  each material category generated, as reported in paragraph (d)  of  this
    39  subdivision;
    40    (g) A complete accounting of all payments made to and by the organiza-
    41  tion during the prior calendar year;
    42    (h)  An  analysis  of  the  average  time it took to reimburse munici-
    43  palities during the prior calendar year;
    44    (i) A list of producers reasonably believed to be  out  of  compliance
    45  with  the  requirements  of  this title, and the reason the organization
    46  reasonably believes the producer to be out of compliance.    Information
    47  on  non-compliant  producers  shall  be provided to the commissioner and
    48  recycling inspector general's office in a timely fashion and for  possi-
    49  ble enforcement action by the office;
    50    (j)  A description of the educational and outreach efforts made by the
    51  organization in the prior calendar year,  and  how  those  efforts  were
    52  designed  to reduce packaging waste, and increase reuse and recycling of
    53  packaging materials;
    54    (k) An assessment of whether the fee structure adopted by  the  organ-
    55  ization  pursuant to section 27-3413 of this title has been effective in
    56  incentivizing improvements to the design of packaging material,  includ-

        A. 5322--D                          9
 
     1  ing  actual  reduction  of packaging material, increases in reusable and
     2  refillable packaging material, recycling rates for packaging  materials,
     3  and decreases in the amount of packaging material;
     4    (l)  A  description  of the reimbursements and expenditures, including
     5  the timeliness of such reimbursements, made pursuant to section  27-3413
     6  of this title;
     7    (m) A recommended minimum recyclables list that meets the requirements
     8  of  subdivision one of section 27-3431 of this title, based on the needs
     9  assessment, information gathered from end markets,  including  commodity
    10  brokers  and  manufacturers who purchase post-consumer materials for use
    11  in manufacturing new products, and available collection  and  processing
    12  infrastructure information;
    13    (n) Audited financial statements;
    14    (o)  The  results of the review conducted pursuant to subdivision four
    15  of this section; and
    16    (p) Any additional information required by the department.
    17    4. Each organization shall conduct an annual review process to  deter-
    18  mine  whether  packaging  materials are recyclable. This review shall be
    19  conducted in consultation with representatives of end markets, including
    20  recycled commodities brokers and manufacturers who purchase post-consum-
    21  er material for use in manufacturing new products, and  in  consultation
    22  with  local  governments.  For  the  purposes  of  calculating  producer
    23  payments and local government reimbursements  in  accordance  with  this
    24  title,  this  annual process shall include a transitional period between
    25  the date the determination is  finalized  and  the  date  it  goes  into
    26  effect.
    27    5. Each organization shall conduct public outreach and provide consum-
    28  ers with educational and informational materials related to reducing the
    29  amount of packaging discarded, recycled, and disposed of in the state as
    30  outlined in section 27-3423 of this title.
    31    6.  Each  organization  shall  operate  a  program  that  provides for
    32  collection convenience as described in section 27-3415 of this title.
    33    7. An organization shall not share, except with  the  department,  the
    34  advisory  council, and the toxic packaging task force, or as required by
    35  law, any proprietary information that is identified  by  a  producer  as
    36  proprietary information without prior written consent.
    37  § 27-3407. Packaging reduction and recycling organization plan.
    38    1.  Within  two years of the effective date of this title, the initial
    39  packaging reduction organization shall develop and  submit  a  packaging
    40  reduction  and  recycling plan for implementation of the rules and regu-
    41  lations of this title, including ensuring timely disbursements to  local
    42  governments, to the department for approval. The plan shall be submitted
    43  to  the  advisory council for review pursuant to section 27-3411 of this
    44  title prior to the department's approval.  Any subsequent or  additional
    45  organization  shall develop and submit a packaging reduction and recycl-
    46  ing plan and comply with all the requirements of this section, and  have
    47  such plan approved pursuant to section 27-3409 of this title.
    48    2.  The  plan  shall  cover five years and be updated every five years
    49  following the approval of the original plan. The department  shall  have
    50  the  discretion  to  require the plan to be reviewed or revised prior to
    51  the five-year period pursuant to section 27-3419 of this title.
    52    3. Each producer shall begin program implementation within six  months
    53  after  the date the plan for the initial organization is approved and in
    54  no event later than three years of the effective date of this title.  If
    55  no   plan  is  approved  by  that  timeframe,  the  department,  in  its
    56  discretion, shall either approve  a  plan  with  conditions  or  specify

        A. 5322--D                         10
 
     1  modifications  that  must  be made within forty-five days to conform the
     2  submitted plan to the requirements of this section.   If a  producer  is
     3  not  making  good  faith efforts to comply with the requirements of this
     4  title  during  such forty-five day period, the producer shall be subject
     5  to penalties for noncompliance.
     6    4. The submitted plan shall include, but not be limited to:
     7    (a) contact information, including the name, e-mail address,  physical
     8  address,  and  telephone  number of the authorized representative of the
     9  producer or producers;
    10    (b) the identity of the producer or  producers  participating  in  the
    11  plan;
    12    (c)  a comprehensive list of the types and brands of covered materials
    13  for which the producer or producers are responsible for;
    14    (d) a description of how the organization will implement the  program,
    15  including  the  mechanisms  and  processes  for  providing assistance to
    16  producers to comply with the reporting requirements of this title;
    17    (e) in relation to funding the program:
    18    (i) a proposed budget outlining the anticipated costs of operating the
    19  program and a description  of  the  method  by  which  the  organization
    20  intends  to  determine  and collect producer payments during the initial
    21  startup period;
    22    (ii) a description of the proposed funding  mechanism,  identified  in
    23  section  27-3413  of  this  title,  that  meets the requirements of this
    24  title;
    25    (iii) a description of how the organization will maintain a  financial
    26  reserve  sufficient  to  operate  the  program in a fiscally prudent and
    27  responsible manner; and
    28    (iv) a description of how  the  organization  intends  to  manage  and
    29  account  for  all program related funds which pass through the organiza-
    30  tion, including how timely reimbursements to local governments  will  be
    31  provided;
    32    (f)  an  objective  formula  establishing  a reimbursement rate, which
    33  covers obligations identified in the needs assessment  and  the  minimum
    34  recyclables  list  and  takes  into account variable regional costs, for
    35  participating local governments or private sector service providers;
    36    (g) a description of the process for participating  local  governments
    37  or private sector service providers to recoup reasonable costs as estab-
    38  lished  by  the  objective  formula,  from the producer or organization,
    39  including,  as  applicable,  any  administrative,  sorting,  collection,
    40  transportation,  public education, or processing costs, if the organiza-
    41  tion uses existing services through a local government or  obtains  such
    42  services from a private sector service provider;
    43    (h)  at  a  minimum,  the following funding mechanism details shall be
    44  provided in the plan:
    45    (i) proposed program fees, provided as a table listing the  rate  paid
    46  for  each  material category, including at a minimum those identified in
    47  subdivision three of section 27-3413, which in sum, will generate suffi-
    48  cient funding to cover obligations identified in  the  needs  assessment
    49  and the requirements of this title; and
    50    (ii)  proposed  program  fee adjustments to incorporate eco-modulation
    51  factors;
    52    (i) a description of the characteristics of  each  type  of  packaging
    53  material that is relevant to the eco-modulating factors set forth pursu-
    54  ant to section 27-3413 of this title;
    55    (j)  if  the  local  government  does  not elect to provide service, a
    56  description of the process used for contracting with  a  private  sector

        A. 5322--D                         11
 
     1  entity  to provide such services and the recoupment of reasonable costs,
     2  including procedures to ensure that such private sector  entity  is  not
     3  compensated  for such services by both the organization and the consumer
     4  for  the  same  service, provided, however, that the packaging recycling
     5  and reduction organization  and  any  such  private  sector  entity  has
     6  entered into a labor peace agreement with a bona-fide labor organization
     7  that  is actively engaged in representing or attempting to represent its
     8  employees and its contractors' employees;
     9    (k) a description of how the  organization  will  work  with  existing
    10  waste  haulers,  material  recovery  facilities,  recyclers,  and  local
    11  governments to operate or expand current collection programs to  address
    12  material  collection methods, improve efficiency and yield of processing
    13  materials from  separate  collection  streams,  and  increase  packaging
    14  reduction and reuse;
    15    (l)  a description of how the organization will use open, competitive,
    16  and fair procurement practices should they directly enter into  contrac-
    17  tual  agreements  with  service  providers, including municipalities and
    18  private entities;
    19    (m) a description of how a local government  will  participate,  on  a
    20  voluntary basis, with collection and how existing local government recy-
    21  cling processing and collection infrastructure will be used;
    22    (n)  a  description  of how the organization plans to meet the conven-
    23  ience requirements set forth in this title;
    24    (o) a description of the process for end-of-life management, including
    25  recycling and disposal of residuals collected for recycling, using envi-
    26  ronmentally sound management practices;
    27    (p) a description of how the organization shall provide the option  to
    28  purchase recycled materials from processors;
    29    (q)  a  description  of  how  producers  are  complying with the waste
    30  reduction, toxics, recycling and post-consumer content  requirements  of
    31  this  title,  and  the  process  for verifying compliance, including any
    32  third party verification services;
    33    (r) a description of how:  (i)  the  organization  will  strategically
    34  invest  in  existing  and  future reuse and recycling infrastructure and
    35  market development in the state in consultation with the department  and
    36  in  a  manner not inconsistent with the needs assessment, including, but
    37  not limited to, installing or upgrading equipment to improve the sorting
    38  of covered materials or mitigating the impacts  of  materials  on  other
    39  commodities  at  existing sorting and processing facilities, and capital
    40  expenditures for new technology, equipment, and facilities; and (ii) how
    41  the process to offer and select opportunities will be  conducted  in  an
    42  open, competitive, and fair manner;
    43    (s)  a  description of how the organization's recycling infrastructure
    44  and market development investments (i) were informed by the  results  of
    45  the needs assessment, and (ii) will utilize the state's existing infras-
    46  tructure;
    47    (t)  a  process  to  address concerns and questions from customers and
    48  residents;
    49    (u) a description of  the  organization's  public  outreach  education
    50  program for consumers and other stakeholders;
    51    (v)  a description of how the comments of stakeholders were considered
    52  and addressed in the development of the plan;
    53    (w) a detailed description of how the organization consulted with  the
    54  advisory  council, the public, and other stakeholders in the development
    55  of the plan prior to its submission  to  the  department,  and  to  what

        A. 5322--D                         12
 
     1  extent the organization specifically incorporated the advisory council's
     2  input into the plan;
     3    (x)  a comprehensive contingency plan demonstrating how the activities
     4  in the plan will continue to be carried out by  some  other  entity,  if
     5  needed,  such  as  an  escrow  company, until such time as a new plan is
     6  submitted and approved by the department:
     7    (i) upon the expiration of an approved plan;
     8    (ii) in the event that the  organization  has  been  notified  by  the
     9  department  that  it must transfer implementation responsibility for the
    10  plan to a different organization;
    11    (iii) in the event that the organization notifies the department  that
    12  it will cease to implement an approved plan; or
    13    (iv)  in any other event that the organization can no longer carry out
    14  plan implementation; and
    15    (y) any other additional information required by the department.
    16    5. The organization shall also provide the advisory council a  reason-
    17  able  period  of time to review and comment upon the draft plan prior to
    18  its submission to the department in accordance with section  27-3409  of
    19  this  title which shall in no event be less than sixty days.  The organ-
    20  ization shall make an assessment of comments received and shall  provide
    21  a  summary  and an analysis of the issues raised by the advisory council
    22  and significant changes suggested by any such comments, a  statement  of
    23  the  reasons  why any significant changes were not incorporated into the
    24  plan, and a description of any changes made to the plan as a  result  of
    25  such comments.
    26  § 27-3409. Packaging reduction and recycling plan approval.
    27    1.  Before  approval  or denial of a packaging reduction and recycling
    28  plan can be made in accordance with this title, the producer  or  organ-
    29  ization  shall  submit the plan to the packaging reduction and recycling
    30  advisory council.  The advisory council shall then make a recommendation
    31  regarding approval or disapproval of the plan in accordance with section
    32  27-3411 of this title.
    33    2. Within sixty days of the advisory council making  a  recommendation
    34  to  the department, the department shall make a determination to approve
    35  the plan as submitted; approve the plan with  conditions;  or  deny  the
    36  plan, with reasons for the denial.
    37    3.  The department may establish additional plan requirements in addi-
    38  tion  to  those  identified  herein to fulfill the intent of this title;
    39  provided, however, that any additional requirements shall be established
    40  one year prior to a required submission of a plan.
    41    4. The department may rescind the approval of an approved plan at  any
    42  time for cause and with documented justification.
    43    5. The maintenance of a labor peace agreement as contemplated by para-
    44  graph  (j) of subdivision four of section 27-3407 of this title shall be
    45  an ongoing  material condition of plan approval.
    46    6. For the purposes of this title, "labor peace  agreement"  means  an
    47  agreement  between  an entity and labor organization that, at a minimum,
    48  protects the state's proprietary interests by prohibiting  labor  organ-
    49  izations  and  members  from  engaging  in  picketing,  work  stoppages,
    50  boycotts, and any other economic interference.
    51  § 27-3411. Packaging reduction and recycling advisory council.
    52    1. There is hereby  established  within  the  department  a  packaging
    53  reduction and recycling advisory council to receive and review the pack-
    54  aging  reduction  and  recycling plans required under section 27-3407 of
    55  this title, to make recommendations to the department regarding approval
    56  of the plans, to review the annual reports produced by organizations and

        A. 5322--D                         13
 
     1  to make recommendations to the department and organizations as  required
     2  by this section.
     3    2. The advisory council shall convene for the first time no later than
     4  one  year  after  the effective date of this title. The advisory council
     5  shall be composed of seventeen members.  Nine shall be appointed by  the
     6  commissioner,  three  shall be appointed by the speaker of the assembly,
     7  one shall be appointed by the minority leader  of  the  assembly,  three
     8  shall  be  appointed  by  the  temporary president of the senate and one
     9  shall be appointed by the minority leader of the  senate.  The  advisory
    10  council shall include at least one member from each of the following:
    11    (a)  a  local  government  association  or  local  government program,
    12  including an additional local government representative from cities with
    13  a population of one million or more residents;
    14    (b) a statewide environmental organization;
    15    (c) a representative of a disadvantaged community  affected  by  solid
    16  waste infrastructure;
    17    (d) an environmental justice organization;
    18    (e) a statewide waste disposal or recycling association;
    19    (f) a materials recovery facility located within the state;
    20    (g) a recycling collection provider;
    21    (h)  a  manufacturer  of  packaging  materials utilizing post-consumer
    22  recycled content;
    23    (i) a consumer advocate;
    24    (j) a retailer;
    25    (k) a public health specialist;
    26    (l) a producer and an organization established  under  this  title  as
    27  non-voting members;
    28    (m)  a  representative  of  a  labor  organization  representing waste
    29  collection employees; and
    30    (n) a representative of a labor  organization  representing  municipal
    31  solid waste and recycling processing employees.
    32    3.  Appointments  to  the  advisory  council  are  term-limited to ten
    33  consecutive years of service; the chair shall be chosen through a major-
    34  ity vote of its members and shall serve no longer than three consecutive
    35  years.
    36    4. Advisory council members shall serve without  compensation,  except
    37  that  a  member  of the committee who is a state officer or employee may
    38  receive their regular compensation while engaging in the business of the
    39  committee, but shall be entitled to receive reimbursement for any  actu-
    40  al, necessary expenses incurred in the course of performing business for
    41  the committee.
    42    5.  All  decisions  made  by  the advisory council shall be decided by
    43  voting and votes shall only be valid when a quorum is present. A  quorum
    44  shall  exist when greater than fifty percent of voting members are pres-
    45  ent. The advisory council shall meet at least once a year by the call of
    46  the chair or by request of more than half the members.  The decisions of
    47  the advisory council shall be by vote of the majority of its membership.
    48    6. The council  shall  determine  whether  the  plan  submitted  under
    49  section  27-3409  of  this title meets the criteria and objectives under
    50  such section in making its recommendation.
    51    7. The advisory council shall, within sixty days of the submission  of
    52  a packaging reduction and recycling plan, either:
    53    (a)  forward  the plan to the commissioner with its recommendation for
    54  approval; or

        A. 5322--D                         14
 
     1    (b) forward the plan to the  commissioner  with  its  disapproval  and
     2  stated  reasons  therefor, including any recommended changes to the plan
     3  necessary for approval.
     4    8.  An  organization  may resubmit a packaging reduction and recycling
     5  plan for approval at any time.  Upon  such  resubmission,  the  advisory
     6  council  shall,  within sixty days, forward the plan to the commissioner
     7  with its recommendation for approval or disapproval.
     8    9. The advisory council shall review the submitted annual reports  and
     9  make  such  recommendations  to  the department and the organization for
    10  improving future administration of the program and compliance with  this
    11  title.
    12    10.  Thirty months from the date the department adopts rules and regu-
    13  lations pursuant to this title, and every three  years  thereafter,  the
    14  advisory  council shall conduct a review of all relevant data, including
    15  annual reports, the latest  scientific  data  available,  any  pertinent
    16  statewide  waste and reuse data, and any other information deemed impor-
    17  tant, to make recommendations to the following:
    18    (a) organizations  for  any  changes  in  the  administration  of  the
    19  program,  including  feedback  on  the education and outreach program as
    20  outlined in section 27-3423 of this title;
    21    (b) the department for any necessary changes to regulations, the fund-
    22  ing mechanism, reimbursement and expenditure  policies,  or  whether  it
    23  would  be beneficial for there to be additional organizations implement-
    24  ing the program; and
    25    (c) the legislature for recommended statutory changes. Such  recommen-
    26  dations shall include a recommendation as to whether to modify the defi-
    27  nition of recycling under this title.
    28  § 27-3413. Funding mechanism.
    29    1. An organization shall establish such program participation fees for
    30  producers  through  the  plan pursuant to section 27-3407 of this title,
    31  which shall be sufficient to cover all costs of the  program,  including
    32  administration,  enforcement,  the  statewide  needs assessment, and all
    33  other state costs  of  the  program  and  organizations'  costs  of  the
    34  program,  including but not limited to those costs described in subdivi-
    35  sion four of this section.
    36    2. An organization shall structure program fees to  provide  producers
    37  with  financial  incentives  through eco-modulation, to reward waste and
    38  source  reduction and recycling compatibility innovations and practices,
    39  and to disincentivize designs or practices that increase costs of manag-
    40  ing the products or materials that contain toxic substances.
    41    3. An organization may adjust fees to  be    paid    by  participating
    42  producers  based on factors that affect system costs. At a minimum, fees
    43  shall be variable based on:
    44    (a) The category of packaging material, provided that the list of such
    45  packaging material categories for which there is a specific producer fee
    46  shall include, at a minimum, the following material types:
    47    (i) Paper;
    48    (ii) Cardboard;
    49    (iii) Corrugated cardboard;
    50    (iv) Wood;
    51    (v) Glass;
    52    (vi) Polyethylene terephthalate (PET);
    53    (vii) High density polyethylene (HDPE);
    54    (viii) Expanded polystyrene (EPS);
    55    (ix) Polystyrene;
    56    (x) Bio-plastics;

        A. 5322--D                         15
 
     1    (xi) Generic plastics;
     2    (xii) Plastic film;
     3    (xiii) Other plastics;
     4    (xiv) Ferrous metals;
     5    (xv) Aluminum;
     6    (xvi) Tinplate;
     7    (xvii) Generic metals; and
     8    (xviii)  Mixed  materials including laminates and packaging containing
     9  more than one of the above materials;
    10    (b) The quantity of each packaging material type, by weight, that  the
    11  producer sells, offers for sale, or distributes in the state;
    12    (c)  Eco-modulation, including as described in subdivision two of this
    13  section.
    14    4. Producer fees shall be designed to cover,  at  minimum,  the  total
    15  costs associated with:
    16    (a) Providing curbside collection or other form of residential service
    17  that  is, at minimum, as convenient as is detailed in section 27-3415 of
    18  this title;
    19    (b) The department's and  other  state  agencies'  administration  and
    20  enforcement of this title;
    21    (c) Organizations' administration of this title;
    22    (d)  The cost associated with the development of the needs assessment,
    23  as required in section 27-3421 of this title;
    24    (e) The costs associated with the advisory council and the toxic pack-
    25  aging task force;
    26    (f) The costs associated with  establishing  packaging  reduction  and
    27  reuse infrastructure;
    28    (g)  The  cost of reimbursement for, or providing, recycling services,
    29  including the collection cost, processing cost for each recyclable mate-
    30  rial, cost of handling non-recyclable material types collected  as  part
    31  of  a  recycling  operation,  transportation  cost of recycling for each
    32  material type; and
    33    (h) Any other factors determined by the department.
    34    5. An organization may adjust producer  fees  based  on  factors  that
    35  affect  system  costs  provided  that  the  specific  parameters of such
    36  adjustments and fees are included in the plan approved  by  the  depart-
    37  ment.  At a minimum, fees shall be variable based on:
    38    (a)  costs  to provide curbside collection or another form of residen-
    39  tial service that is, at minimum, as convenient as  curbside  collection
    40  or  as  convenient  as  the  previous  recycling  collection plan in the
    41  particular jurisdiction should recycling collection not be provided;
    42    (b) costs to process packaging materials for acceptance  by  secondary
    43  material markets;
    44    (c) whether the packaging material would typically be readily-recycla-
    45  ble, except that as a consequence of the packaging design, the packaging
    46  product  has the effect of disrupting recycling processes or the product
    47  includes labels, inks, and adhesives containing heavy  metals  or  other
    48  toxic  substances  that  would  result in contamination of the recycling
    49  process;
    50    (d) whether the packaging material  is  specifically  designed  to  be
    51  reusable or refillable and has high reuse or refill rate; and
    52    (e)  the  commodity  value  of  a  packaging  material,  as defined by
    53  published indices.
    54    6. The fees shall be adjusted, or the  producers  may  be  provided  a
    55  credit,  as detailed in the plan, based upon the percentage of post-con-
    56  sumer recycled material content and  such  percentage  of  post-consumer

        A. 5322--D                         16
 
     1  recycled  content  shall  be  verified by the organization or through an
     2  independent third party approved to  perform  verification  services  to
     3  ensure  that  such  percentage  exceeds  the minimum requirements in the
     4  packaging,  as  long as the recycled content does not disrupt the poten-
     5  tial for future recycling.
     6    7. In addition to the annual schedule of fees approved in the plan, an
     7  organization fee schedule may include a special assessment  on  specific
     8  categories of packaging materials, identified in the plan, if the nature
     9  of  the  packaging material imposes unusual costs in collection or proc-
    10  essing or requires special actions to address effective access to  recy-
    11  cling or successful processing in local government recycling facilities.
    12    8.  The  fees  shall be structured to provide producers with financial
    13  incentives to encourage:
    14    (a) A reduction in total packaging as measured by unit weight used  by
    15  producers,  and  discarded  by  consumers, businesses, institutions, and
    16  other users. Weight reductions shall not  be  achieved  by  substituting
    17  plastic for other materials types;
    18    (b) An increase in the proportion of a producer's total packaging that
    19  is managed within a reuse and refill system;
    20    (c) An increase in the proportion of a producer's total packaging that
    21  is  deemed  recyclable  as  determined  by  an  annual review process as
    22  described in section 27-3405 of this title;
    23    (d) An increase in the proportion of a producer's total packaging that
    24  is ultimately recycled;
    25    (e) A reduction in toxic components in packaging materials; and
    26    (f) A reduction in litter from packaging materials.
    27    9. An organization shall be responsible for calculating and disbursing
    28  funding at a reasonable rate  developed  through  an  objective  formula
    29  approved by the department, and such reasonable rate may be varied based
    30  on  population  density  rates,  for  municipal  services utilized by an
    31  organization if the municipality elects to be compensated by the  organ-
    32  ization  in  the  collection,  recovery,  recycling,  and  processing of
    33  covered materials and  products,  whether  such  services  are  provided
    34  directly by the municipality or through a contracted service provider.
    35    10. If a municipality does not elect to provide service, the organiza-
    36  tion  shall  be  responsible  for  contracting with a private entity for
    37  services and shall be responsible for calculating and disbursing funding
    38  at a reasonable recycling program rate for collection, recycling, recov-
    39  ery, and processing services  provided  by  the  private  sector  entity
    40  contracted  to provide such service.  Any such contract shall be subject
    41  to a labor peace agreement as contemplated by paragraph (j) of  subdivi-
    42  sion four of section 27-3407 of this title.
    43    11.  To facilitate an organization's cost reimbursement determination,
    44  participating municipalities and private sector haulers contracting with
    45  the organization shall report data related to their costs and the  value
    46  of  materials  to  the  organization.  Cost calculations shall take into
    47  consideration the amount received  from  the  sale  of  source-separated
    48  materials.
    49    12. There shall be no fee assessed on reusable or refillable packaging
    50  and containers contained within a reuse or refill system.
    51    13.  Any  funds directly collected pursuant to this title shall not be
    52  used to carry out lobbying activities on behalf of an organization.
    53    14. No retailer may charge a point-of-sale or other fee  to  consumers
    54  to  facilitate a producer or organization to recoup the costs associated
    55  with meeting the obligations under this title.

        A. 5322--D                         17
 
     1    15. Nothing in this title shall require a local government to  partic-
     2  ipate  in  the  program,  provided  that a local government must give at
     3  least three months' notice of its intent to cease participation.
     4  § 27-3415. Collection and convenience.
     5    1. The program shall provide for widespread, convenient, and equitable
     6  access to collection opportunities for recyclable packaging materials at
     7  no  additional  cost.  Such opportunities, including curbside recycling,
     8  shall be provided to all residents of the state in a manner that  is  as
     9  convenient  as the collection of solid waste as provided to the consumer
    10  as of the effective date of this  title.    Organizations  shall  ensure
    11  services  continue  for  curbside recycling programs as of the effective
    12  date of this title, either directly or through  a  contract  to  provide
    13  services,  and that such services are continued through such producer or
    14  organization's plan pursuant to section 27-3405 of this title.
    15    2. Participation in the program shall not  restrict  a  jurisdiction's
    16  consumer's  ability  to  contract  directly with third parties to obtain
    17  recycling collection services if consumers have the option to enter into
    18  such contracts as of the effective date of this title, as  long  as  the
    19  consumer  still  voluntarily chooses to contract directly with the third
    20  party.   The local government shall not  provide  disbursement  to  such
    21  third  party  should  the  local government provide widespread recycling
    22  services either directly or through a contract that  is  different  from
    23  the  contract  with  such  third party, and there shall be procedures in
    24  place to ensure that no service provider is compensated more  than  once
    25  for the same service.
    26    3. Organizations may rely on a range of means to collect various cate-
    27  gories  of  packaging  materials  so  long as collection options include
    28  curbside recycling collection services provided by  municipal  programs,
    29  municipal  contracted  programs,  solid  waste  collection companies, or
    30  other approved entities as identified by the department if at a minimum:
    31    (a) the category of packaging materials is on the minimum  recyclables
    32  list,  is suitable for residential curbside recycling collection and can
    33  be effectively sorted by the facilities receiving the curbside collected
    34  material;
    35    (b) the category of packaging  materials  is  not  handled  through  a
    36  deposit and return scheme or buy back system that relies on a collection
    37  system other than curbside or multi-family collection;
    38    (c)  the  provider  of  the  curbside  recycling service agrees to the
    39  organization's service provider costs arrangement; and
    40    (d) any private contract for such services is subject to a labor peace
    41  agreement as contemplated  by  paragraph  (j)  of  subdivision  four  of
    42  section 27-3407.
    43    4.  All  local government or private recycling service providers shall
    44  provide for the collection and  recycling  of  all  packaging  materials
    45  contained on the minimum recyclables lists, based on geographic regions,
    46  in  order  to  be eligible for reimbursement; provided, however, nothing
    47  shall penalize a local  government  or  private  recycling  service  for
    48  recovering  and  recycling  materials  that  are  generated in the local
    49  government or geographic region that are not  included  on  the  minimum
    50  recyclables  lists as long as it can be demonstrated that such materials
    51  have a consistent regional market for  purchase  as  determined  by  the
    52  department in consultation with the producer or organization.
    53    5.  Reimbursement  shall cover collection, processing, transportation,
    54  and recycling and disposal of all packaging materials  so  long  as  the
    55  program  includes  at least the minimum recyclables list. The department
    56  may grant an exception to the requirements in this  subdivision  upon  a

        A. 5322--D                         18

     1  written  showing  by  the  local government or private recycling service
     2  that compliance with the requirements is not practicable for a  specific
     3  identified  product or material and if the department finds it is in the
     4  best  interest  of  the  intent  of  this  title  to grant an exception;
     5  provided, however, that any such exception  granted  by  the  department
     6  shall not exceed twelve months.
     7    6.  Program  funds shall be used for investment in collection systems,
     8  transportation  systems, reuse systems, washing systems,  redistribution
     9  systems,  technology  for tracking and data collection, capital expendi-
    10  tures on new and emerging technology that is  focused  on  reusable  and
    11  refillable  packaging,  as  well as equipment, and facilities, and other
    12  projects  determined  by   the department to facilitate  the  goals  and
    13  objectives of this title.
    14    7.  Nothing  in  this  title  shall be deemed to automatically void or
    15  nullify any  collection contracts in effect as of the effective date  of
    16  this title.
    17  § 27-3417. Producer responsibilities.
    18    1.  Beginning with the required program implementation date as contem-
    19  plated by subdivision three of section 27-3407 of this title and  in  no
    20  event  later  than three years after the effective date of this title, a
    21  producer shall not sell, offer for sale, or distribute into the state  a
    22  product  contained,  protected,  delivered, presented, or distributed in
    23  packaging unless the producer is registered with an organization and  in
    24  full  compliance  with  all  requirements of this title. Producers shall
    25  register with the initial organization within  eighteen  months  of  the
    26  effective  date  of  this  title; provided, however, that any person who
    27  becomes a producer thereafter shall register with  an  organization  and
    28  begin  program implementation within six months thereof or be subject to
    29  penalties for noncompliance.
    30    2. Either when the producer registers, or within  eighteen  months  of
    31  the effective date of this title, whichever is later and annually there-
    32  after,  each  producer shall provide the organization with the following
    33  information:
    34    (a) Contact information, including the name, e-mail address,  physical
    35  address,  and  telephone  number of the authorized representative of the
    36  producer;
    37    (b) A comprehensive list of the categories  and  brands  of  packaging
    38  materials for which the producer or producers are responsible;
    39    (c) The total amount, in units and weight, of each category of packag-
    40  ing  material  sold,  offered for sale, or distributed for sale into the
    41  state by the producer in the prior calendar year; and
    42    (d) Any other information required by the department.
    43    3. Producers are responsible for payment of fees, through an organiza-
    44  tion, based on the quantity, category of packaging material used in  the
    45  state, and other factors.
    46    4. Producers are responsible for meeting the toxic substances, packag-
    47  ing  material  reduction, post-consumer content, and recycling standards
    48  under this title.
    49    5. A producer  shall  electronically  submit  annually,  to  both  the
    50  department  and  the  packaging  reduction and recycling organization, a
    51  written declaration signed by its chief executive officer, verifying the
    52  producer's compliance with:
    53    (a) The packaging material reduction requirements of this title;
    54    (b) The packaging  material  recycled  content  requirements  of  this
    55  title;
    56    (c) The packaging material recycling requirements of this title;

        A. 5322--D                         19

     1    (d) The toxic substance reduction requirements of this title;
     2    (e)  Their  obligations  to  pay  fees to the organization pursuant to
     3  section 27-3413 of this title and subdivision three of this section; and
     4    (f) Any reimbursement obligations they have to  local  governments  or
     5  third party service providers in connection with this title.
     6    6. A producer is exempt from the requirements and prohibitions of this
     7  title in a calendar year in which:
     8    (a)  The  producer  and its affiliates collectively realized less than
     9  five million dollars in total gross revenue during  the  prior  calendar
    10  year;
    11    (b)  The  producer  and  its affiliates collectively sold, offered for
    12  sale, or distributed for sale products contained, protected,  delivered,
    13  presented,  or  distributed  in or using less than two tons of packaging
    14  material in total during the prior calendar year;
    15    (c) The producer is a not-for-profit  corporation  that  is  primarily
    16  engaged  in  preparing    and  delivering  medically  tailored meals and
    17  medical  nutrition  therapy.  As  used  in  this  paragraph,  "medically
    18  tailored  meals and medical nutrition therapy" means nutritional assess-
    19  ment, nutritional therapy, and  nutritional  counseling  provided  by  a
    20  certified  dietician or certified nutritionist, and the provision of any
    21  food indicated by such assessment, therapy or counseling and ordered  by
    22  a  health care professional acting within their lawful scope of practice
    23  under title eight of the education law, for the purpose of treating  one
    24  or  more  chronic  conditions  for an individual who is limited in their
    25  activities of daily living; or
    26    (d) is an agricultural cooperative  with  less  than  fifty  employees
    27  engaged in the production of dairy products.
    28    7.  A  producer  claiming  an exemption pursuant to subdivision six of
    29  this section shall provide the department with sufficient information to
    30  demonstrate that the claimant is eligible for an exemption.
    31    8. Nothing in this title shall impair a producer's eligibility for tax
    32  credits or other business incentives  for  which  they  would  otherwise
    33  qualify.
    34  § 27-3419. Department responsibilities.
    35    1.  Within  eighteen  months  of the effective date of this title, the
    36  department shall, in accordance with  section  27-3435  of  this  title,
    37  promulgate all rules and regulations necessary to implement, administer,
    38  and  enforce  the  provisions of this title, including setting standards
    39  for consumer protection when the organization directly  disburses  funds
    40  to  third parties. These rules and regulations shall include prohibiting
    41  certain toxics in packaging pursuant to section  27-3425 of  this  title
    42  as of the dates set forth therein.
    43    2.  Beginning two years after the required program implementation date
    44  as contemplated by subdivision three of section 27-3407  of  this  title
    45  and  in no event later than three years after the effective date of this
    46  title, and annually thereafter, the department shall utilize the  infor-
    47  mation  obtained  pursuant to paragraphs (b), (c), (d), (e), (f) and (g)
    48  of subdivision three of section 27-3405 of this  title,  and  any  other
    49  information  available  to  the department, with input from the advisory
    50  council, to produce an annual report to be shared with  the  legislature
    51  and posted publicly on the department's website.
    52    3. The department shall establish and maintain the minimum recyclables
    53  list  by  regulation.  The  department  shall update this list annually,
    54  after the initial organization's plan  is  first  approved,  considering
    55  recommendations from organizations and the advisory council. The minimum
    56  recyclables  list  may  vary  by geographic region depending on regional

        A. 5322--D                         20
 
     1  markets and regional collection and processing infrastructure, but shall
     2  in all cases meet the requirements of subdivision one of section 27-3431
     3  of this title.
     4    4.  In  the event that the department determines that the organization
     5  no longer meets the requirements of this title, or  fails  to  implement
     6  and  administer the requirements of this title in a manner that effectu-
     7  ates the purposes of this title, after reasonable  opportunity  to  cure
     8  such  deficiencies,  the  department  shall  revoke its approval of such
     9  organization and, subject to the contingency plan contemplated by  para-
    10  graph  (w)  of  subdivision four of section 27-3407 of this title, shall
    11  select a new organization pursuant to section 27-3403 of this title.
    12  § 27-3421. Statewide packaging reduction,  reuse,  and  recycling  needs
    13               assessment.
    14    1.  No  later than one year after the effective date of this title and
    15  every five years thereafter, the department shall complete or  cause  to
    16  be  completed a statewide packaging material reduction, reuse, and recy-
    17  cling needs assessment to determine the current state of packaging mate-
    18  rial reuse, recycling, and disposal, identify barriers and opportunities
    19  to reduce the amount of packaging material discarded  and  disposed  of,
    20  and increase the reusability and recyclability of packaging material.
    21    2. The needs assessment, at a minimum, shall cover the following:
    22    (a) The current recycling rate for each type of packaging material;
    23    (b)  The  amount,  by  weight and material type, of packaging material
    24  recycled at each recycling facility  that  accepts  discarded  packaging
    25  material generated in the state;
    26    (c)  The  processing capacity, market conditions, and opportunities in
    27  the state and regionally for recyclable materials generally, and packag-
    28  ing material categories specifically;
    29    (d) The net cost of  end-of-life  management  of  discarded  packaging
    30  material   in   the  state,  including  the  cost  associated  with  the
    31  collection, transportation, sortation, recycling,  littering,  landfill-
    32  ing, or incineration of discarded packaging;
    33    (e)  The  availability  of  opportunities  in  the recycling and reuse
    34  system for minority- and women-owned businesses;
    35    (f) Current barriers affecting recycling access  and  availability  in
    36  the state;
    37    (g)  Current  barriers  to  the  marketability of recyclable materials
    38  generated in the state;
    39    (h) Opportunities for the creation of  packaging  material  reuse  and
    40  refill programs in the state;
    41    (i)  Opportunities for the improvement of packaging material recycling
    42  in the state, including the development  of  end  markets  for  recycled
    43  packaging materials;
    44    (j)  Current  barriers  affecting  the  creation and implementation of
    45  packaging material reuse and refill programs;
    46    (k) Consumer education needs in the state with  respect  to  packaging
    47  material waste reduction, recycling, and reducing contamination in recy-
    48  cling, and reuse and refill systems for packaging material; and
    49    (l) Landfill capacity.
    50    3.  The cost incurred by the department associated with conducting the
    51  needs assessment shall be paid for by the organization.
    52    4. The department shall report the results of the needs assessment  to
    53  the  public, the state legislature, and the governor, and shall post the
    54  results on its website.
    55  § 27-3423. Education and outreach program.

        A. 5322--D                         21
 
     1    1.  The  organization  shall  develop  and  implement  an  educational
     2  outreach  program  designed  to educate the public about waste reduction
     3  and improve the effectiveness of local government recycling  and,  at  a
     4  minimum, include:
     5    (a)  Educational  and informational materials for consumers related to
     6  reducing the amount of packaging discarded, recycled, and disposed of in
     7  the state;
     8    (b) A description of the environmental, social, economic, and environ-
     9  mental justice impacts associated with improper  disposal  of  packaging
    10  material and failure to reuse or recycle packaging materials;
    11    (c)  Information  on  the  proper  end-of-life management of packaging
    12  material, including reuse, recycling, composting, and disposal;
    13    (d) The location and availability of  curbside  collection  and  addi-
    14  tional drop-off collection opportunities for packaging material, includ-
    15  ing deposit and take-back programs;
    16    (e)  How  to  prevent  litter  of packaging material in the process of
    17  collection;
    18    (f) Recycling instructions that are consistent  statewide,  except  as
    19  necessary to take into account differences among local laws and process-
    20  ing capabilities, easy to understand, and easily accessible; and
    21    (g) Any other information required by the department.
    22    2.  The  educational outreach program shall incorporate, at a minimum,
    23  electronic, print, web-based and social media  elements,  including  for
    24  use  by  local  governments  at their discretion, as well as including a
    25  variety of outreach  and  education  tools.  Such  educational  outreach
    26  programs  shall  ensure materials are widely accessible and available in
    27  multiple languages.
    28    3. The educational outreach program  shall  be  coordinated  with  and
    29  assist  local government programs, local government contracted programs,
    30  solid waste collection companies, and other entities providing services.
    31    4. The educational outreach  program  shall  be  developed  to  ensure
    32  disadvantaged communities receive targeted outreach and support.
    33    5.  The educational outreach program shall include a plan to work with
    34  producers to label  or  mark  packaging  material,  in  accordance  with
    35  reasonable  labeling  standards, with information to assist consumers in
    36  responsibly managing and recycling covered products.
    37    6. The organization shall consult with local governments on the devel-
    38  opment of educational materials and may coordinate  with  local  govern-
    39  ments on outreach and communication.
    40    7.  The  organization  shall  be  authorized  to provide producers and
    41  retailers  with  educational  materials  related  to   the   responsible
    42  reduction,  reuse, recycling, or disposal of discarded packaging materi-
    43  al. The educational and informational materials provided to the retailer
    44  under this subdivision may include, but need not be limited to,  printed
    45  materials,  signage and templates of materials that can be reproduced by
    46  retailers and provided thereby to consumers at the time of  a  product's
    47  purchase, and advertising materials that promote and encourage consumers
    48  to properly reuse, recycle, or dispose of packaging material.
    49    8. The organization shall make information on relevant tax credits and
    50  other business incentives available to producers.
    51  § 27-3425. Prohibition on certain toxic substances and materials.
    52    1.  Notwithstanding  title two of article thirty-seven of this chapter
    53  to the contrary, (a) Beginning three years  after  the  promulgation  of
    54  rules  and regulations pursuant to this title, no person or entity shall
    55  sell, offer for  sale,  or  distribute  into  the  state  any  packaging

        A. 5322--D                         22
 
     1  containing  any  of  the  following  toxic substances or materials as an
     2  intentionally added substance:
     3    (i) Ortho-phthalates;
     4    (ii) Bisphenols;
     5    (iii) Per- and polyfluoroalkyl substances (PFAS);
     6    (iv)  Heavy metals and compounds, including lead, hexavalent chromium,
     7  cadmium, and mercury,  but  excluding  copper  phthalocyanine  (chemical
     8  abstracts service registry number 147-14-8);
     9    (v) Benzophenone and its derivatives;
    10    (vi) Halogenated flame retardants;
    11    (vii) Perchlorate;
    12    (viii) Formaldehyde;
    13    (ix) Toluene;
    14    (x) Antimony and compounds;
    15    (xi) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol);
    16    (xii) Polyvinyl chloride, including polyvinylidene chloride;
    17    (xiii) Polystyrene but excluding EPS (expanded polystyrene); or
    18    (xiv) Polycarbonate.
    19    (b)  Beginning  five  years  after the promulgation of rules and regu-
    20  lations pursuant to this title, no person or entity  shall  sell,  offer
    21  for  sale,  or distribute into the state any packaging containing any of
    22  the toxic substances listed in paragraph (a) of this  subdivision,  even
    23  if  they  are  not an intentionally added substance, at or above a level
    24  that the department shall establish by regulation  that  is  the  lowest
    25  level that can feasibly be achieved; provided, however, that the depart-
    26  ment  shall  review  such level every five years to determine whether it
    27  should be lowered.
    28    2. (a) There is hereby established within the department a toxic pack-
    29  aging task force to review the toxicity in packaging in the  state,  and
    30  to  recommend  to  the  department  the  designation of additional toxic
    31  substances which shall be subject  to  the  same  prohibition  as  those
    32  substances listed in subdivision one of this section.
    33    (b)  The  toxic  packaging  task force shall have nine members, one of
    34  whom shall be the commissioner or their designee who shall be chair, and
    35  one of whom shall be the commissioner of health or their  designee.  The
    36  other  members  shall  include:    (i) a representative of the packaging
    37  industry; (ii) a representative of an  environmental  justice  organiza-
    38  tion;  (iii) a representative from the chemical industry; (iv) a profes-
    39  sional or academic expert in  toxicology;  and  (v)  a  professional  or
    40  academic  expert  in public health risk assessment; all of whom shall be
    41  appointed by the commissioner. The remaining members  shall  be  persons
    42  with significant professional or academic expertise in maternal or child
    43  health,  epidemiology,  chemical  safety or public health policy, one of
    44  whom shall be appointed by the temporary president of the senate and one
    45  of whom shall be appointed by the speaker of the assembly.  Appointments
    46  to the toxic packaging task force are term limited to  five  consecutive
    47  years of service.
    48    (c)  The  task  force shall meet at least twice per year to review and
    49  recommend to the department  whether  (i)  there  are  additional  toxic
    50  substances  or  classes  of  toxic  substances for use in packaging that
    51  should no longer be sold, offered for sale,  distributed  for  sale,  or
    52  distributed  for  such  use  in  this  state,  and  (ii) there should be
    53  substance or material-specific exceptions to the  prohibitions  provided
    54  for in subdivision one of this section, provided such recommendation may
    55  be made only upon a demonstration of substantial and convincing evidence

        A. 5322--D                         23
 
     1  that  such  substance or material does not meet the criteria for classi-
     2  fication as a toxic substance or material.
     3    3.  (a)  Within  one  hundred  eighty days of the toxic packaging task
     4  force recommending the designation of an additional toxic substance, the
     5  department shall adopt rules and regulations to designate such substance
     6  as a toxic substance under this section and prohibit  the  use  of  such
     7  toxic  substance  in  packaging  in  the  same  manner  as  those  toxic
     8  substances listed in subdivision one of this section, with an  effective
     9  date  no  later  than  two  years after the date of such recommendation,
    10  unless the department determines that  such  two-year  period  would  be
    11  unduly  burdensome,  in  which  case  the  department shall establish an
    12  effective date for such prohibition no later than four years  after  the
    13  date of such recommendation.
    14    (b) The department may evaluate recommendations from the toxic packag-
    15  ing  task  force for exceptions as provided in paragraph (c) of subdivi-
    16  sion two of this section, and upon a demonstration  of  substantial  and
    17  convincing  evidence  that  such substance or material does not meet the
    18  criteria for classification as a toxic substance or material, may  adopt
    19  rules  and  regulations to except such substance as a toxic substance or
    20  material.
    21    4. Any producer that violates this section,  or  any  rules  or  regu-
    22  lations promulgated pursuant to this section, shall be subject to a fine
    23  for each violation not to exceed ten thousand dollars per violation. For
    24  the  purposes  of  this section, each product line that is sold, offered
    25  for sale, or distributed to  consumers,  via  retail  commerce,  in  the
    26  state,  including  through an internet transaction shall be considered a
    27  separate violation.
    28  § 27-3427. Non-reusable packaging reduction standards.
    29    1. Each individual producer is required to meet the following  packag-
    30  ing reduction requirements:
    31    (a)  Beginning  three  years after the program implementation date set
    32  forth in subdivision three of section 27-3407 or January  first  of  the
    33  third  year  following the date on which a producer first registers with
    34  an organization if a producer registers after the program implementation
    35  date, such producer shall reduce the amount of primary plastic packaging
    36  material, and the amount of all other packaging material, in each  case,
    37  by ten percent either on a company-wide basis or by unit weight, for all
    38  packaging  materials  used  to  contain,  protect,  deliver, present, or
    39  distribute the products they sell, offer for  sale,  or  distribute  for
    40  sale in the state.
    41    (b)  Beginning  five  years  after the program implementation date set
    42  forth in subdivision three of section 27-3407 or January  first  of  the
    43  fifth  year  following the date on which a producer first registers with
    44  an organization if a producer registers after the program implementation
    45  date, such producer shall reduce the amount of primary plastic packaging
    46  material, and the amount of all other packaging material, in each  case,
    47  by fifteen percent either on a company-wide basis or by unit weight, for
    48  all  packaging  materials used to contain, protect, deliver, present, or
    49  distribute the products they sell, offer for  sale,  or  distribute  for
    50  sale in the state.
    51    (c)  Beginning  eight  years after the program implementation date set
    52  forth in subdivision three of section 27-3407 or January  first  of  the
    53  eighth  year following the date on which a producer first registers with
    54  an organization if a producer registers after the program implementation
    55  date, such producer shall reduce the amount of primary plastic packaging
    56  material, and the amount of all other packaging material, for all  mate-

        A. 5322--D                         24
 
     1  rials  used  to  contain,  protect,  deliver, present, or distribute the
     2  products they sell, offer for sale, or  distribute  for  sale  into  the
     3  state, in each case, by twenty percent either on a company-wide basis or
     4  by  unit  weight,  for all packaging materials used to contain, protect,
     5  deliver, present, or distribute the products they sell, offer for  sale,
     6  or distribute for sale in the state.
     7    (d)  Beginning  ten  years  after  the program implementation date set
     8  forth in subdivision three of section 27-3407 or January  first  of  the
     9  tenth  year  following the date on which a producer first registers with
    10  an organization if a producer registers after the program implementation
    11  date, such producer shall reduce the amount of primary plastic packaging
    12  material, and the amount of all other packaging material, for all  mate-
    13  rials  used  to  contain,  protect,  deliver, present, or distribute the
    14  products they sell, offer for sale, or  distribute  for  sale  into  the
    15  state,  in  each  case,  by twenty-five percent either on a company-wide
    16  basis or by unit weight for all packaging  materials  used  to  contain,
    17  protect,  deliver,  present, or distribute the products they sell, offer
    18  for sale, or distribute for sale in the state.
    19    (e) Beginning twelve years after the program implementation  date  set
    20  forth  in  subdivision  three of section 27-3407 or January first of the
    21  twelfth year following the date on which a producer first registers with
    22  an organization if a producer registers after the program implementation
    23  date, such producer shall reduce the amount of primary plastic packaging
    24  material, and the amount of all other packaging material, for all  mate-
    25  rials  used  to  contain,  protect,  deliver, present, or distribute the
    26  products they sell, offer for sale, or  distribute  for  sale  into  the
    27  state, in each case, by thirty percent either on a company-wide basis or
    28  by  unit  weight,  for all packaging materials used to contain, protect,
    29  deliver, present, or distribute the products they sell, offer for  sale,
    30  or distribute for sale in the state.
    31    2.  The  reductions required by this section shall be measured against
    32  the packaging material the producer used  during  the  first  year  such
    33  producer registered with an organization.
    34    3.  These reductions shall be achieved by eliminating single-use pack-
    35  aging material, including  secondary  or  tertiary  packaging  material,
    36  elimination  of  packaging  material  components, reduction of packaging
    37  material components, or by transitioning to reusable or refillable pack-
    38  aging systems. Reductions may also be achieved by  substituting  plastic
    39  packaging  material  with  non-plastic  packaging material. However, the
    40  reductions required by this section shall not be achieved by  substitut-
    41  ing non-plastic materials with plastic materials or substituting recycl-
    42  able materials with non-recyclable materials.
    43    4.  In  the  case of a producer for which, as of the effective date of
    44  this title or upon entry into the market after such  effective  date,  a
    45  portion  of  its  packaging is reusable and contained within a reuse and
    46  refill system, such producer may apply to the department  for  a  waiver
    47  from  the  packaging reduction requirements set forth in subdivision one
    48  of this section with respect to that percentage  of  its  packaging,  by
    49  unit weight, which is contained within a reuse and refill system.
    50    5.  In  the case of a producer that demonstrates in a manner satisfac-
    51  tory to the department that, for the period beginning ten years prior to
    52  the effective date of this title and ending on the  date  which  is  two
    53  years  after  the effective date of this title, the producer reduced the
    54  amount of packaging used  to  contain,  protect,  deliver,  present,  or
    55  distribute the products the producer sells, offers for sale, or distrib-
    56  utes for sale into the state, such  producer may apply to the department

        A. 5322--D                         25
 
     1  for  a  waiver from the packaging reduction requirements of this section
     2  with respect to that percentage of its packaging, by unit weight,  which
     3  was reduced during such twelve-year period.
     4    6.  A  producer  may  apply  to  the  department for a waiver from the
     5  reduction requirements of this section if compliance is  impossible  due
     6  to  federal  law  or  otherwise conflicts with federal law.  Such waiver
     7  must be applied for annually.  In such application  the  producer  shall
     8  provide the department and the advisory council with sufficient informa-
     9  tion,  in  the  determination of the department in consultation with the
    10  advisory council, to make a determination on such application, including
    11  proof that the producer has taken all feasible actions  to  achieve  the
    12  reductions required by this section.
    13    7. Nothing in this section shall preclude a producer from going beyond
    14  the reduction standards in subdivision one of this section.
    15  § 27-3429. Recycled content standards.
    16    1.  Each  individual producer shall meet the recycling content targets
    17  contained in this section.
    18    2. Beginning two years after promulgation  of  rules  and  regulations
    19  pursuant to this title:
    20    (a) all glass containers manufactured in the state used by the produc-
    21  er shall contain, on average, at least thirty-five percent post-consumer
    22  recycled content;
    23    (b) all paper carryout bags sold, offered for sale, or given away free
    24  in  the  state  by  a producer shall contain, on average, at least forty
    25  percent post-consumer recycled content; except that a paper carryout bag
    26  that holds eight pounds or less shall only be required  to  contain,  on
    27  average, at least twenty percent post-consumer recycled content; and
    28    (c)  all plastic trash bags sold or offered for sale in the state by a
    29  producer shall contain, on average, at least twenty percent post-consum-
    30  er recycled content.
    31    3. The requirements of this section shall not  apply  to  reusable  or
    32  refillable packaging or containers.
    33    4.  Beginning  two  years  after  plan  implementation  begins for the
    34  initial organization, the department is authorized, in consultation with
    35  the advisory council, to:
    36    (a) establish content requirements for materials not listed in  subdi-
    37  vision two of this section; and
    38    (b)  modify the post-consumer recycled content targets for the materi-
    39  als set forth in subdivision two of this section, provided that  modifi-
    40  cations  do not result in a lesser percentage or an earlier year for the
    41  respective target.
    42  § 27-3431. Recyclability criteria and packaging recycling requirements.
    43    1. Beginning two years after the promulgation of rules and regulations
    44  pursuant to this title, packaging materials used  by  a  producer  shall
    45  meet the following recyclability criteria:
    46    (a)  be  capable  of  being sorted by entities that process recyclable
    47  material generated in the state;
    48    (b) have a consistent regional market for purchase, by  end  users  in
    49  the production of new products;
    50    (c) not contain the following:
    51    (i) opaque or pigmented polyethylene terephthalate;
    52    (ii) oxo-degradable additives, including oxo-biodegradable additives;
    53    (iii) polyethylene terephthalate glycol in rigid packaging;
    54    (iv)  label  constructions,  including  adhesives, inks, materials and
    55  formats, or features that render a package non-recyclable or  disruptive
    56  to the recycling process; and

        A. 5322--D                         26
 
     1    (v) DoPS - polystyrene, excluding EPS (expanded polystyrene);
     2    (d) meet the post-consumer content requirements of this title; and
     3    (e) any other criteria determined by the department.
     4    2.  Each  individual  producer shall be required to meet the following
     5  recycling rate standards:
     6    (a) With respect to the producer's non-plastic packaging:
     7    (i) Beginning January first, two thousand twenty-nine,  a  minimum  of
     8  thirty-five percent of packaging material reported by the producer or an
     9  organization  as  supplied  into  the state shall be reused or recycled,
    10  with a minimum of five percent being reused;
    11    (ii) Beginning January first, two thousand thirty-six,  a  minimum  of
    12  fifty  percent  of  packaging  material  reported  by the producer or an
    13  organization as supplied into the state shall  be  reused  or  recycled,
    14  with a minimum of ten percent being reused; and
    15    (iii)  Beginning  January  first, two thousand fifty-one, a minimum of
    16  seventy-five percent of packaging material reported by the  producer  or
    17  an  organization as supplied into the state shall be reused or recycled,
    18  with a minimum of twenty percent being reused.
    19    (b) With respect to plastic packaging:
    20    (i) Beginning January first, two thousand twenty-nine,  a  minimum  of
    21  twenty-five  percent  of  plastic  packaging  material  reported  by the
    22  producer or an organization as supplied into the state shall  be  reused
    23  or recycled;
    24    (ii)  Beginning  January  first, two thousand thirty-six, a minimum of
    25  fifty percent of plastic packaging material reported by the producer  or
    26  an  organization as supplied into the state shall be reused or recycled;
    27  and
    28    (iii) Beginning January first, two thousand fifty-one,  a  minimum  of
    29  seventy-five  percent  of  plastic  packaging  material  reported by the
    30  producer or an organization as supplied into the state shall  be  reused
    31  or recycled.
    32    3. The department may adjust the recycling rates in subdivision two of
    33  this  section  by  rulemaking  based on information gathered through the
    34  needs assessment or provided in producer plans and reports, and/or based
    35  on consideration of environmental, technical and economic conditions. An
    36  adjustment to the statewide recycling and reuse performance targets  may
    37  not adjust the recycling rate target to less than thirty percent or more
    38  than seventy-five percent.
    39    4.  A producer may apply to the department for a waiver from the recy-
    40  cling rate requirements of this section if compliance is impossible  due
    41  to  federal  law  or  otherwise conflicts with federal law.  Such waiver
    42  shall be applied for annually. In such application  the  producer  shall
    43  provide the department and the advisory council with sufficient informa-
    44  tion,  in  the  determination of the department in consultation with the
    45  advisory council, to make a determination on such application, including
    46  proof that the producer has taken all feasible actions  to  achieve  the
    47  reductions required by this section.
    48    5. The requirements of subdivision two of this section shall not apply
    49  to reusable or refillable packaging or containers.
    50  § 27-3433. Establishment of the office of recycling inspector general.
    51    1. The commissioner shall establish an independent office of recycling
    52  inspector general within the department. The recycling inspector general
    53  shall  evaluate  the programs and organizations created pursuant to this
    54  title on an annual basis and shall ensure such programs are  functioning
    55  properly,  and  that  all  organizations and producers are in compliance
    56  with the requirements of this title.

        A. 5322--D                         27
 
     1    2. The recycling inspector general shall have the authority to  inves-
     2  tigate  the  compliance  of  producers  and  the  organization  with all
     3  provisions of this title and to bring enforcement actions for violations
     4  of this title pursuant to the provisions  of  section  27-3435  of  this
     5  title.   A violation by the organization as the result of actions by one
     6  or more producers shall be enforceable by the recycling inspector gener-
     7  al as violations against such producers.
     8  § 27-3435. Penalties and enforcement.
     9    1. Failure to comply with the requirements of this title shall subject
    10  the organization or an individual producer to penalties for  violations.
    11  The  department,  recycling  inspector general, or attorney general, may
    12  conduct investigations, including inspecting operations, facilities, and
    13  records of producers and organizations, and performing audits of produc-
    14  ers and organizations, to determine whether such producers and organiza-
    15  tions are complying with the requirements of this title.
    16    2. The department, the recycling inspector general,  or  the  attorney
    17  general,  shall  notify  an  organization  or producer of any conduct or
    18  practice that does not comply with the requirements of this title and of
    19  any inconsistencies identified in an audit.
    20    3. The department, the recycling inspector general, and  the  attorney
    21  general,  may  issue a notice of violation to, and impose an administra-
    22  tive civil penalty not to  exceed  one  thousand  dollars  per  day  per
    23  violation  on any entity not in compliance with this title or any of the
    24  regulations the department adopts  to  implement  this  title.  For  the
    25  purposes  of  this  section, each product line that is sold, offered for
    26  sale, or distributed to consumers via  retail  commerce  in  the  state,
    27  including  through  an internet transaction, shall be considered a sepa-
    28  rate violation.
    29    4. Civil penalties under this section shall be assessed by the depart-
    30  ment after an opportunity to be heard  pursuant  to  the  provisions  of
    31  section  71-1709  of  this  chapter,  or  by  the court in any action or
    32  proceeding pursuant to section 71-2727 of this chapter, and in  addition
    33  thereto,  such  person or entity may by similar process be enjoined from
    34  continuing such violation and any permit, registration or other approval
    35  issued by the department may  be  revoked  or  suspended  or  a  pending
    36  renewal denied.
    37  § 27-3437. Rules and regulations.
    38    1.  Within  eighteen  months after the effective date of this section,
    39  the department shall promulgate all rules and regulations  necessary  to
    40  implement, administer, and enforce the provisions of this title.
    41    2. When promulgating rules pursuant to the provisions of this section,
    42  the  department shall solicit input from the public of any draft rule or
    43  regulation to implement this section, including at a minimum  a  ninety-
    44  day comment period and one public hearing on such draft rules.
    45  § 27-3439. State preemption.
    46    Jurisdiction in all matters pertaining to costs and funding mechanisms
    47  of  packaging  reduction  and  recycling  organizations  relating to the
    48  recovery of packaging materials shall, by this title, be  vested  exclu-
    49  sively in the state; provided, however, that nothing in this title shall
    50  preclude  any  city,  town,  village  or other local planning units from
    51  determining what materials shall be included for recycling  in  a  local
    52  government  recycling  collection  program  or shall preclude any person
    53  from coordinating, for recycling or reuse, the collection  of  packaging
    54  materials and products.
    55  § 27-3441. Other assistance programs.

        A. 5322--D                         28
 
     1    Nothing  in  this  title shall impact any producer eligibility for any
     2  state or local incentive or assistance program to which they are  other-
     3  wise eligible.
     4  § 27-3443. Antitrust protections.
     5    A  producer  shall not be liable for any claim of a violation of anti-
     6  trust, restraint of trade, or unfair trade practice arising from conduct
     7  undertaken in order to comply with this title; provided,  however,  this
     8  section  shall  not apply to any agreement establishing or affecting the
     9  price of packaging material, or the output or production of  any  agree-
    10  ment  restricting  the  geographic  area or customers to which packaging
    11  material will be sold.
    12  § 27-3445. Severability.
    13    The provisions of this title shall be severable  and  if  any  phrase,
    14  clause, sentence or provision of this title or the applicability thereof
    15  to  any  person  or circumstance shall be held invalid, the remainder of
    16  this title and the application thereof shall not be affected thereby.
    17    § 3. The environmental conservation law is amended  by  adding  a  new
    18  section 37-0202 to read as follows:
    19  § 37-0202. Applicability.
    20    This  article  shall  only have effect to the extent that the prohibi-
    21  tions in this title are not otherwise substantially given effect  or  in
    22  conflict with the provisions of title thirty-four of article twenty-sev-
    23  en of this chapter.
    24    § 4. This act shall take effect immediately.
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