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A05322 Summary:

BILL NOA05322B
 
SAME ASSAME AS S04246-B
 
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, Rozic, McMahon, Kim, Taylor, Clark, Burgos, Sayegh, Solages, Wallace, Benedetto, Jackson, Pretlow, Meeks, Conrad, McDonald, Davila, Williams, Bores, Brown K, Buttenschon
 
MLTSPNSR
 
Add Art 27 Title 34 §§27-3401 - 27-3443, §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--B
 
                               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 --
          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 accordance with Assembly Rule 3, sec. 2
          -- committee discharged, bill amended, 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:
     5                                  TITLE 34
     6            PACKAGING REDUCTION AND RECYCLING INFRASTRUCTURE ACT
     7  Section 27-3401. Definitions.
     8          27-3403. Selection of the packaging reduction organization.
     9          27-3405. Responsibilities of packaging reduction organization.
    10          27-3407. Packaging reduction and recycling organization plan.
    11          27-3409. Packaging reduction and recycling plan approval.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08868-08-4

        A. 5322--B                          2
 
     1          27-3411. Packaging reduction and recycling advisory council.
     2          27-3413. Funding mechanism.
     3          27-3415. Collection and convenience.
     4          27-3417. Producer responsibilities.
     5          27-3419. Department responsibilities.
     6          27-3421. Statewide  packaging  reduction,  reuse,  and recycling
     7                    needs assessment.
     8          27-3423. Education and outreach program.
     9          27-3425. Prohibition on certain toxic substances and materials.
    10          27-3427. Non-reusable packaging reduction standards.
    11          27-3429. Recycled content standards.
    12          27-3431. Recyclability criteria and packaging recycling require-
    13                    ments.
    14          27-3433. Establishment of  the  office  of  recycling  inspector
    15                    general.
    16          27-3435. Penalties and enforcement.
    17          27-3437. Rules and regulations.
    18          27-3439. State preemption.
    19          27-3441. Other assistance programs.
    20          27-3443. Severability.
    21  § 27-3401. Definitions.
    22    As used in this title:
    23    1.  "Advisory  council" or "council" means the packaging reduction and
    24  recycling advisory council established under  section  27-3411  of  this
    25  title.
    26    2. "Beverage container" shall have the same meaning as is set forth in
    27  subdivision two of section 27-1003 of this article.
    28    3.  "Brand"  means  any  mark,  word, name, symbol, design, device, or
    29  graphical element or a combination thereof, including  a  registered  or
    30  unregistered trademark, that identifies and distinguishes a product from
    31  other products.
    32    4. "Contamination" means:
    33    (a)  the  presence  of  materials in a given collected material stream
    34  that are not on the minimum recyclables list maintained by  the  depart-
    35  ment; or
    36    (b)  the  presence of materials in a given recycled material delivered
    37  as a feedstock or commodity that are not  specified  or  accepted  as  a
    38  component of the feedstock or commodity.
    39    5.  "Discarded", "discards", "generated" or "generation" means packag-
    40  ing material that has been used for its intended purpose and is no long-
    41  er needed by consumers, businesses, institutions, and other  users,  and
    42  can be managed through reuse, recycling, or disposal.
    43    6.  "Disposal"  means  the  landfilling or incineration of material or
    44  products.   "Disposal" shall also  include  energy  recovery  or  energy
    45  generation  by  any  means, including, but not limited to, incineration,
    46  combustion, pyrolysis, gasification, or solvolysis, waste-to-energy,  or
    47  waste-to-fuel,  or  any  other  chemical  conversion process. "Disposal"
    48  shall also include the use of materials as landfill cover.
    49    7. "Eco-modulation" means structuring program fees in a way to provide
    50  producers with financial incentives  to  reduce  waste  at  the  source,
    51  increase  recyclability of packaging materials, promote reusable packag-
    52  ing products, including those that are  contained  within  a  reuse  and
    53  refill  system,  discourage  and  decrease contamination, disincentivize
    54  designs or practices that increase the costs and  adverse  environmental
    55  impacts  of  managing the packaging materials, and encourage designs and

        A. 5322--B                          3

     1  processes that improve and facilitate development of infrastructure  and
     2  systems for source reduction, reuse, recycling, and composting.
     3    8.  "Disadvantaged  community"  shall  have the same meaning as is set
     4  forth in subdivision five of 75-0101 of this chapter.
     5    9. "Local government" means any  municipal  corporation,  governmental
     6  subdivision  of  the  state,  local  government  unit, special district,
     7  school, local or regional board, commission, or authority authorized  by
     8  law  to  plan  or  provide  for waste management services for a specific
     9  geographical area.
    10    10. "Packaging material" or "material" means a  discrete  material  or
    11  category  of  material,  regardless  of recyclability, including but not
    12  limited to such material types that are flexible, foam, or rigid materi-
    13  al, including paper, cardboard, plastic, glass, metal, or  multi-materi-
    14  al,  that  is  used for the containment, protection, handling, delivery,
    15  transport, distribution, or presentation  of  another  product  that  is
    16  sold, offered for sale, imported, or distributed in the state, including
    17  through  an  internet  transaction, and single-use plastic products that
    18  frequent the residential waste stream or are plastic products that  have
    19  the effect of disrupting recycling processes, including, but not limited
    20  to, single-use plastic items such as straws, utensils, cups, plates, and
    21  plastic bags. Packaging material does not include:
    22    (a)  Medical  devices  and  packaging which are included with products
    23  regulated as a drug, medical device, or dietary supplement by the United
    24  States food and drug administration under the federal  food,  drug,  and
    25  cosmetic  act,  21  U.S.C.  321  et seq., Sec. 3.2(E) of 21 U.S. code of
    26  federal regulations, or the dietary supplement health and education act;
    27    (b) Animal biologics, including vaccines, bacterins,  antisera,  diag-
    28  nostic  kits, and other products or biological origin, and other packag-
    29  ing materials regulated by the United States department  of  agriculture
    30  under the virus, serum, toxin act, 21 U.S.C. 151-159;
    31    (c)  Packaging  regulated  by  the Federal Insecticide, Fungicide, and
    32  Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other  applicable  federal
    33  law, rule, or regulation;
    34    (d)  Packaging  used  to contain hazardous or flammable products regu-
    35  lated by the 2012 federal Occupational Safety and Health  Administration
    36  Hazard Communications Standard (29 C.F.R. 1910.1200);
    37    (e)  Beverage  containers  subject  to  a returnable container deposit
    38  under title ten of this article;
    39    (f) Infant formula as defined in section 321(z) of  title  21  of  the
    40  United States code of federal regulations;
    41    (g) Medical foods as defined in section 360ee(b)(3) of title 21 of the
    42  United States code of federal regulations; and
    43    (h)  Architectural  paint containers collected and managed pursuant to
    44  title twenty of this article.
    45    11. "Packaging reduction and recycling organization" or "organization"
    46  means a registered  501(c)(3)  not-for-profit  charitable  organization,
    47  pursuant  to  26 U.S.C. 501(c)(3) under contract with the department and
    48  authorized to collect producer fees, assist  producers  with  compliance
    49  with  the  requirements  of  this title, provide technical assistance to
    50  producers and implement the program.
    51    12. "Packaging reduction and recycling plan" or "plan" means  a  docu-
    52  ment in which an organization describes the efforts it will undertake to
    53  comply with the requirements of this title.
    54    13. "Packaging reduction and recycling program" or "program" means the
    55  program  implemented by an organization, and overseen by the department,
    56  to comply with and implement the provisions of this title.

        A. 5322--B                          4
 
     1    14. "Post-consumer recycled  material"  means  new  material  produced
     2  using material resulting from recycling.
     3    15. "Primary packaging" means the packaging in direct contact with the
     4  product itself, also sometimes referred to as a consumer unit.
     5    16.  "Producer" means the following entities, other than local govern-
     6  ments, state governments and the federal government, for compliance with
     7  the requirements for packaging materials  sold,  offered  for  sale,  or
     8  distributed to consumers in or into this state:
     9    (a)  For packaging materials sold or served to consumers at a physical
    10  retail location in this state:
    11    (i) If the packaging materials are sold or served under  the  manufac-
    12  turer's own brand or are sold or served in packaging materials that lack
    13  identification  of  a  brand, the producer of the packaging materials is
    14  the person that manufactures the product;
    15    (ii) If subparagraph (i) of this paragraph does not apply, the produc-
    16  er of the packaging materials is the person that is the  licensee  of  a
    17  brand or trademark under which a product is sold or served to a consumer
    18  in  or  into  this  state, whether or not the trademark is registered in
    19  this state, unless the  manufacturer  of  the  packaging  materials  has
    20  agreed  to accept responsibility; where the producer is a business oper-
    21  ated wholly or in part as a franchise, the producer is  the  franchisor,
    22  if such franchisor has franchisees that are resident in the state;
    23    (iii)  If  there is no person as described in subparagraph (i) or (ii)
    24  of this paragraph within the United States, the producer of the  packag-
    25  ing  material  is  the  person  who  imports the product into the United
    26  States for use in a commercial enterprise that sells, offers  for  sale,
    27  or distributes the product to consumers in this state.
    28    (b) For products sold or distributed to consumers in packaging materi-
    29  als in or into this state via remote sale or distribution:
    30    (i)  The  producer  of packaging materials used to directly protect or
    31  contain the product is the same as the producer defined in paragraph (a)
    32  of this subdivision.
    33    (ii) The producer of packaging materials used to ship the product to a
    34  consumer is the person that manufacturers the shipping material.
    35    17. "Product line" means a group  of  related  products  all  marketed
    36  under  a  single  brand that is sold by the same producer to distinguish
    37  products from each other for better usability for customers.
    38    18. "Recyclable" means a packaging material that meets the criteria in
    39  section 27-3431 of this title.
    40    19. "Recycled" means the  use  of  discarded  packaging  materials  or
    41  products  in  the  production  of a new product or packaging in place of
    42  virgin materials.  "Recycled" material does  not  include  contaminants,
    43  residues,  and  other  process  losses  or  use of materials as landfill
    44  cover.
    45    20. "Recycling" means to separate, dismantle or process the materials,
    46  components   or commodities contained in discards  for  the  purpose  of
    47  preparing  the materials, components, or commodities for use or reuse in
    48  new products or components. "Recycling" does  not  include:  (a)  energy
    49  recovery  or  energy  generation by any means, including but not limited
    50  to, combustion, incineration, pyrolysis,  gasification,  solvolysis,  or
    51  waste-to-fuel;  (b)  any  chemical  conversion  process; or (c) landfill
    52  disposal.
    53    21. "Recycling rate" means the percentage of any given packaging  type
    54  that  is ultimately recycled. The recycling rate for any packaging mate-
    55  rial shall be calculated as the total weight of packaging that is  recy-
    56  cled  in  a given year divided by the total weight of packaging material

        A. 5322--B                          5
 
     1  generated in that year.  Material  losses,  including  contaminants  and
     2  residues,  accruing  during collection, processing and manufacturing new
     3  products do not count as recycled and  shall  not  be  included  in  the
     4  numerator of the equation.
     5    22.  "Reuse"  means  the  return  of  packaging back into the economic
     6  stream for use in the same kind of application intended for the original
     7  packaging, without effectuating a change in the original composition  of
     8  the package, the identity of the product, or the components thereof.
     9    23.  "Reuse  and  refill  system" means a program or set of mechanisms
    10  designed to  facilitate  multiple  uses  of  packaging.  Mechanisms  may
    11  include,   but  are  not  limited  to,  deposits,  incentives,  curbside
    12  collection, collection kiosks, refill stations, dishwashing  facilities,
    13  and re-distribution networks.
    14    24.  "Reusable or refillable packaging and containers" means packaging
    15  material and containers that are specifically designed and  manufactured
    16  to  maintain shape and structure, and be materially durable for repeated
    17  sanitizing, washing, and reuse.
    18    25. "Toxic packaging task force" means the toxic packaging task  force
    19  established by subdivision two of section 27-3425 of this title.
    20    26.  "Toxic  substances" means a chemical or chemical class identified
    21  by a state agency, federal agency, international intergovernmental agen-
    22  cy, accredited research university, or other  scientific  entity  deemed
    23  authoritative  by  the  department  on  the basis of credible scientific
    24  evidence as being one or more of the following:
    25    (a) A chemical or chemical class that is a carcinogen, mutagen, repro-
    26  ductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor.
    27    (b) A chemical or chemical class that is  persistent  or  bioaccumula-
    28  tive.
    29    (c)  A chemical or chemical class that may harm the normal development
    30  of a fetus or child or cause other developmental toxicity in  humans  or
    31  wildlife.
    32    (d)  A  chemical or chemical class that may harm organs or cause other
    33  systemic toxicity.
    34    (e) A chemical or chemical class that may  have  adverse  air  quality
    35  impacts,  adverse  ecological  impacts, adverse soil quality impacts, or
    36  adverse water quality impacts.
    37    (f) A chemical or chemical class that the  department  has  determined
    38  has equivalent toxicity to the above criteria.
    39  § 27-3403. Selection of the packaging reduction organization.
    40    1.  Until the date which is ten years after the effective date of this
    41  title, there shall be only one packaging reduction organization and  all
    42  producers  shall  be  required to register with such packaging reduction
    43  organization.
    44    2. Consistent with the requirements  of  this  title,  within  fifteen
    45  months  of the effective date of this title, the department shall select
    46  and enter into a contract with a not-for-profit organization to  act  as
    47  the initial organization in order to operate the packaging reduction and
    48  recycling program.
    49    3. Within nine months of the effective date of this title and consist-
    50  ent   with  applicable  competitive  bidding  requirements  under  state
    51  purchasing laws,  the department shall issue a request for proposals for
    52  the operation of the packaging  reduction  and  recycling  program.  The
    53  successful  bidder  shall  be  required  to  include,  at a minimum, the
    54  following information:

        A. 5322--B                          6
 
     1    (a) A description of how  the  bidder  will  administer  the  program,
     2  including  the  mechanisms  and  processes  for  providing assistance to
     3  producers to comply with the reporting requirements of this title;
     4    (b) The mechanisms and processes the bidder will use to compile infor-
     5  mation from producers;
     6    (c)  How  the  bidder  intends  to  manage and account for all program
     7  related funds which pass through the organization, including how  timely
     8  reimbursements to local governments will be provided;
     9    (d)  A financial assurance plan that ensures all program funds held by
    10  the organization are immediately and exclusively  forfeited  and  trans-
    11  ferred  to  or otherwise made immediately available to the department if
    12  the organization's contract with the department  is  terminated  by  the
    13  department, or expires;
    14    (e) A proposed budget outlining the anticipated costs of operating the
    15  program  and  a description of the method by which the bidder intends to
    16  determine and collect producer payments during the initial startup peri-
    17  od; and
    18    (f) Any other additional information required by the department.
    19    4. If, at the close of the competitive bidding process under  subdivi-
    20  sion three of this section, the department determines that no bidder has
    21  submitted,  in  accordance  with such subdivision, a proposal that meets
    22  the requirements of this  section,  the  department  shall  operate  the
    23  program  by  itself  or  designate  a   state public body to operate the
    24  program.
    25    5. If after recommendation by the advisory council pursuant to  subdi-
    26  vision  ten  of  section 27-3411 of this title the department determines
    27  that it would be beneficial for there  to  be  additional  organizations
    28  implementing  the  program, beginning ten years after the effective date
    29  of this title, the department may issue  a  request  for  proposals  for
    30  additional  organizations  in a manner consistent with the provisions of
    31  this section. Should  the department determine to have additional organ-
    32  izations,  the    department  shall  promulgate  regulations  to  ensure
    33  consistency and  coordination between all organizations.
    34  § 27-3405. Responsibilities of packaging reduction organization.
    35    1. Producers shall register with a packaging reduction organization to
    36  meet  the  responsibilities of the program pursuant to the provisions of
    37  this section.
    38    2. Each packaging reduction organization shall:
    39    (a) Develop a packaging reduction and recycling plan and  submit  such
    40  plan  to  the  advisory  council  for  review and comment, and after any
    41  modifications in response to such  comments,  submit  the  plan  to  the
    42  commissioner for approval pursuant to section 27-3407 of this title;
    43    (b)  Collect  and  compile  data from producers as required by section
    44  27-3417 of this title;
    45    (c) Collect fees due from producers as required by section 27-3413  of
    46  this title;
    47    (d) Reimburse the department and any other relevant state agencies for
    48  the  costs  associated  with  conducting  the statewide needs assessment
    49  required by section 27-3421 of this title,  the  administration  of  the
    50  program  by the department, and the expenses of the advisory council and
    51  the toxic packaging task force;
    52    (e) Distribute funds to reimburse local governments and private compa-
    53  nies for the costs associated  with  the  implementation  of  reduction,
    54  refill, and reuse programs, and the collection, transportation and recy-
    55  cling, disposal or other processing of packaging materials;

        A. 5322--B                          7
 
     1    (f)  Offer technical support to producers, with an emphasis on support
     2  to small businesses, to assist them with compliance  with  the  require-
     3  ments  of  this  title, including information about procuring affordable
     4  alternatives to non-compliant packaging and reducing packaging.
     5    3. Annually, each organization shall submit a report to the department
     6  that, at a minimum, must include the following information:
     7    (a) Contact information for the organization;
     8    (b)  A list of all (i) producers, (ii) brands, and (iii) products that
     9  each producer sells, offers for sale, or distributes into the state that
    10  are contained, protected, delivered, presented,  or  distributed  in  or
    11  using  packaging,  in each case identified by the Universal Product Code
    12  (UPC) if the product has one;
    13    (c) The total amount, by both weight and number of units, of each type
    14  of packaging material used to contain, protect, handle, deliver,  trans-
    15  port,  distribute,  or  present  products  sold,  offered  for  sale, or
    16  distributed into the state by each individual producer during the  prior
    17  calendar year;
    18    (d)  The  total  amount,  by  both weight and number of units, of each
    19  material used to contain, protect, handle, deliver, transport,  distrib-
    20  ute, or present products sold, offered for sale, or distributed into the
    21  state by all producers during the prior calendar year;
    22    (e) A complete accounting of all payments made to and by the organiza-
    23  tion during the prior calendar year;
    24    (f)  A  list  of producers reasonably believed to be out of compliance
    25  with the requirements of this title, and  the  reason  the  organization
    26  reasonably  believes  the producer to be out of compliance.  Information
    27  on non-compliant producers shall be provided  to  the  commissioner  and
    28  recycling  inspector general's office in a timely fashion and for possi-
    29  ble enforcement action by the office;
    30    (g) A description of the educational and outreach efforts made by  the
    31  organization  in  the  prior  calendar  year, and how those efforts were
    32  designed to reduce packaging waste, and increase reuse and recycling  of
    33  packaging materials;
    34    (h)  An assessment of whether the fee structure adopted by the depart-
    35  ment pursuant to section 27-3413 of this title  has  been  effective  in
    36  incentivizing  improvements to the design of packaging material, includ-
    37  ing actual reduction of packaging, increases in reusable and  refillable
    38  packaging, recycling rates for packaging materials, and decreases in the
    39  amount of packaging;
    40    (i) A description of the reimbursements and expenditures made pursuant
    41  to section 27-3413 of this title;
    42    (j) Audited financial statements;
    43    (k)  The  results of the review conducted pursuant to subdivision four
    44  of this section; and
    45    (l) Any additional information required by the department.
    46    4. Each organization shall conduct an annual review process to  deter-
    47  mine  whether  packaging  materials are recyclable. This review shall be
    48  conducted in consultation with representatives of end markets, including
    49  recycled commodities brokers and manufacturers who purchase post-consum-
    50  er material for use in manufacturing new products, and  in  consultation
    51  with  local  governments.  For  the  purposes  of  calculating  producer
    52  payments and local government reimbursements  in  accordance  with  this
    53  title,  this  annual process shall include a transitional period between
    54  the date the determination is  finalized  and  the  date  it  goes  into
    55  effect.

        A. 5322--B                          8
 
     1    5. Each organization shall conduct public outreach and provide consum-
     2  ers with educational and informational materials related to reducing the
     3  amount of packaging discarded, recycled, and disposed of in the state as
     4  outlined in section 27-3423 of this title.
     5    6.  Each  organization  shall  operate  a  program  that  provides for
     6  collection convenience as described in section 27-3415 of this title.
     7    7. Each organization shall not spend funds  on  lobbying  or  campaign
     8  contributions to any candidates running for office.
     9    8.  An  organization  shall not share, except with the department, the
    10  advisory council, and the toxic packaging task force, or as required  by
    11  law,  any  proprietary  information  that is identified by a producer as
    12  proprietary information.
    13  § 27-3407. Packaging reduction and recycling organization plan.
    14    1. Within two years of the effective date of this title,  the  initial
    15  packaging  reduction  organization, shall develop and submit a packaging
    16  reduction and recycling plan on implementation of the  rules  and  regu-
    17  lations  of this title, including ensuring timely disbursements to local
    18  governments, to the department for approval. The plan shall be submitted
    19  to the advisory council for review pursuant to section 27-3411  of  this
    20  title  prior to the department's approval.  Any subsequent or additional
    21  organization shall develop and submit a packaging reduction and  recycl-
    22  ing  plan and comply with all the requirements of this section, and have
    23  such plan approved pursuant to section 27-3409 of this title.
    24    2. The plan shall cover five years and be  updated  every  five  years
    25  following  the  approval of the original plan. The department shall have
    26  the discretion to require the plan to be reviewed or  revised  prior  to
    27  the five-year period pursuant to section 27-3419 of this title.
    28    3.  Each producer shall begin program implementation within six months
    29  after the date the plan for the initial organization is approved and  in
    30  no  event later than three years of the effective date of this title. If
    31  no plan is approved by that timeframe, the producer shall be subject  to
    32  penalties for noncompliance.
    33    4.  Any  person that becomes a producer after the plan for the initial
    34  organization is approved  shall  register  with  a  packaging  reduction
    35  organization  and begin program implementation within six months thereof
    36  or be subject to penalties for noncompliance.
    37    5. The submitted plan shall include, but not be limited to:
    38    (a) contact information, including the name, electronic  and  physical
    39  address,  and  telephone  number of the authorized representative of the
    40  producer or producers;
    41    (b) the identity of the producer or  producers  participating  in  the
    42  plan;
    43    (c)  a comprehensive list of the types and brands of covered materials
    44  for which the producer or producers are responsible for;
    45    (d) a description of (i) the proposed funding mechanism, identified in
    46  section 27-3413 of this title,  that  meets  the  requirements  of  this
    47  title,  and  (ii) how the organization will maintain a financial reserve
    48  sufficient to operate the program in a fiscally prudent and  responsible
    49  manner;
    50    (e)  an  objective  formula  establishing  a reimbursement rate, which
    51  covers obligations identified in the needs  assessment  and  takes  into
    52  account  variable regional costs, for participating local governments or
    53  private sector service providers;
    54    (f) a description of the process for participating  local  governments
    55  or private sector service providers to recoup reasonable costs as estab-
    56  lished  by  the  objective  formula,  from the producer or organization,

        A. 5322--B                          9
 
     1  including,  as  applicable,  any  administrative,  sorting,  collection,
     2  transportation,  public education, or processing costs, if the organiza-
     3  tion uses existing services through a local government or  obtains  such
     4  services  from  a  private  sector  service  provider, which process and
     5  recoupment may be structured to incentivize improvements  in  management
     6  of  materials  including  without  limitation in the manner described in
     7  paragraph (i) of this subdivision;
     8    (g) a description of the characteristics of  each  type  of  packaging
     9  material that is relevant to the eco-modulating factors set forth pursu-
    10  ant to section 27-3413 of this title;
    11    (h)  if  the  local  government  does  not elect to provide service, a
    12  description of the process used for contracting with  a  private  sector
    13  entity  to provide such services and the recoupment of reasonable costs,
    14  including procedures to ensure that such private sector  entity  is  not
    15  compensated  for such services by both the organization and the consumer
    16  for the same service;
    17    (i) how the producers and/or  organization  will  work  with  existing
    18  waste  haulers,  material  recovery  facilities,  recyclers,  and  local
    19  governments to operate or expand current collection programs to  address
    20  material  collection methods, improve efficiency and yield of processing
    21  materials from  separate  collection  streams,  and  increase  packaging
    22  reduction and reuse;
    23    (j)  a description of how the producers or organization will use open,
    24  competitive, and fair procurement practices should they  directly  enter
    25  into  contractual  agreements  with service providers, including munici-
    26  palities and private entities;
    27    (k) a description of how a local government  will  participate,  on  a
    28  voluntary basis, with collection and how existing local government recy-
    29  cling processing and collection infrastructure will be used;
    30    (l)  a  description of how the producers or organization plans to meet
    31  the convenience requirements set forth in this title;
    32    (m) a description of the process for end-of-life management, including
    33  recycling and disposal of residuals collected for recycling, using envi-
    34  ronmentally sound management practices;
    35    (n) a description of how the organization shall provide the option  to
    36  purchase recycled materials from processors;
    37    (o)  a  description  of how producers are complying with and exceeding
    38  the  waste  reduction,  toxics,  recycling  and  post-consumer   content
    39  requirements of the title;
    40    (p) a description of how the organization will strategically invest in
    41  existing and future reuse and recycling infrastructure and market devel-
    42  opment  in the state in consultation with the department and in a manner
    43  not inconsistent with the needs assessment, including, but  not  limited
    44  to,  installing  or  upgrading  equipment  to improve sorting of covered
    45  materials or mitigating the impacts of materials to other commodities at
    46  existing sorting and processing facilities, and capital expenditures for
    47  new technology, equipment, and facilities;
    48    (q) a process to address concerns and  questions  from  customers  and
    49  residents;
    50    (r)  a  description  of  the  organization's public outreach education
    51  program for consumers and other stakeholders;
    52    (s) a description of how comments of stakeholders were considered  and
    53  addressed in the development of the plan; and
    54    (t)  a detailed description of how the organization consulted with the
    55  advisory council, the public, and other stakeholders in the  development
    56  of  the  plan  prior  to  its  submission to the department, and to what

        A. 5322--B                         10
 
     1  extent the organization specifically incorporated the advisory council's
     2  input into the plan.
     3    6.  The organization shall also provide the advisory council a reason-
     4  able period of time to review and comment upon the draft plan  prior  to
     5  its  submission  to the department in accordance with section 27-3409 of
     6  this title which shall in no event be less than sixty days.  The  organ-
     7  ization  shall make an assessment of comments received and shall provide
     8  a summary and an analysis of the issues raised by the  advisory  council
     9  and  significant  changes suggested by any such comments, a statement of
    10  the reasons why any significant changes were not incorporated  into  the
    11  plan,  and  a description of any changes made to the plan as a result of
    12  such comments.
    13  § 27-3409. Packaging reduction and recycling plan approval.
    14    1. Before approval or denial of a packaging  reduction  and  recycling
    15  plan  can  be made in accordance with this title, the producer or organ-
    16  ization shall submit the plan to the packaging reduction  and  recycling
    17  advisory council.  The advisory council shall then make a recommendation
    18  regarding approval or disapproval of the plan in accordance with section
    19  27-3411 of this title.
    20    2.  Within  sixty days of the advisory council making a recommendation
    21  to the department, the department shall make a determination to  approve
    22  the  plan  as  submitted;  approve the plan with conditions; or deny the
    23  plan, with reasons for the denial.
    24    3.  The department may establish additional plan requirements in addi-
    25  tion to those identified herein to fulfill the  intent  of  this  title;
    26  provided, however, that any additional requirements shall be established
    27  one year prior to a required submission of a plan unless such additional
    28  requirements  are  in  relation  to  the power granted to the department
    29  section 27-3419 of this title.
    30    4. No later than six months after the date the plan is  approved,  the
    31  organization  shall  implement  the  approved  plan.  The department may
    32  rescind the approval of an approved plan at any time for cause and  with
    33  documented justification.
    34  § 27-3411. Packaging reduction and recycling advisory council.
    35    1.  There  is  hereby  established  within  the department a packaging
    36  reduction and recycling advisory council to receive and review the pack-
    37  aging reduction and recycling plans required under  section  27-3407  of
    38  this title, to make recommendations to the department regarding approval
    39  of the plans, and to review the annual reports produced by organizations
    40  and  to  make  recommendations  to  the  department and organizations as
    41  required by this section.
    42    2. The advisory council shall convene for the first time no later than
    43  one year after the effective date of this title.  The  advisory  council
    44  shall  be composed of thirteen members.  Seven shall be appointed by the
    45  commissioner, three shall be appointed by the speaker of  the  assembly,
    46  and  three  shall be appointed by the temporary president of the senate.
    47  The advisory council shall include at least one member from each of  the
    48  following:
    49    (a)  a  local  government  association  or  local  government program,
    50  including an additional local government representative from cities with
    51  a population of one million or more residents;
    52    (b) a statewide environmental organization;
    53    (c) a representative of an environmental justice community affected by
    54  solid waste infrastructure;
    55    (d) an environmental justice organization;
    56    (e) a statewide waste disposal or recycling association;

        A. 5322--B                         11
 
     1    (f) a materials recovery facility located within the state;
     2    (g) a recycling collection provider;
     3    (h)  a  manufacturer  of  packaging  materials utilizing post-consumer
     4  recycled content;
     5    (i) a consumer advocate;
     6    (j) a retailer;
     7    (k) a public health specialist; and
     8    (l) a producer and an organization established  under  this  title  as
     9  non-voting members.
    10    3.  Appointments  to  the  advisory  council  are  term-limited to ten
    11  consecutive years of service; the chair shall be chosen through a major-
    12  ity vote of its members and shall serve no longer than three consecutive
    13  years.
    14    4. Advisory council members shall serve without  compensation,  except
    15  that  a  member  of the committee who is a state officer or employee may
    16  receive his or her regular compensation while engaging in  the  business
    17  of the committee, but shall be entitled to receive reimbursement for any
    18  actual, necessary expenses incurred in the course of performing business
    19  for the committee.
    20    5.  All  decisions  made  by  the advisory council shall be decided by
    21  voting and votes shall only be valid when a quorum is present. A  quorum
    22  shall  exist when greater than fifty percent of voting members are pres-
    23  ent. The advisory council shall meet at least once a year by the call of
    24  the chair or by request of more than half the members.  The decisions of
    25  the advisory council shall be by vote of the majority of its membership.
    26    6. The council  shall  determine  whether  the  plan  submitted  under
    27  section  27-3409  of  this title meets the criteria and objectives under
    28  such section in making its recommendation.
    29    7. The advisory council shall, within ninety days of the submission of
    30  a packaging reduction and recycling plan, either:
    31    (a) forward the plan to the commissioner with its  recommendation  for
    32  approval; or
    33    (b)  forward  the  plan  to  the commissioner with its disapproval and
    34  stated reasons therefor, including any recommended changes to  the  plan
    35  necessary for approval.
    36    8.  An  organization  may resubmit a packaging reduction and recycling
    37  plan for approval at any time.  Upon  such  resubmission,  the  advisory
    38  council  shall, within ninety days, forward the plan to the commissioner
    39  with its recommendation for approval or disapproval.
    40    9. The advisory council shall review the submitted annual reports  and
    41  make  such  recommendations  to  the department and the organization for
    42  improving future administration of the program and compliance with  this
    43  title.
    44    10.  Thirty months from the date the department adopts rules and regu-
    45  lations pursuant to this title, and every three  years  thereafter,  the
    46  advisory  council shall conduct a review of all relevant data, including
    47  annual reports, the latest  scientific  data  available,  any  pertinent
    48  statewide  waste and reuse data, and any other information deemed impor-
    49  tant, to make recommendations to the following:
    50    (a) organizations for any changes in administration  of  the  program,
    51  including  feedback on the education and outreach program as outlined in
    52  section 27-3423 of this title;
    53    (b) the department for any necessary changes to regulations, the fund-
    54  ing mechanism, reimbursement and  expenditure  policies  or  whether  it
    55  would  be beneficial for there to be additional organizations implement-
    56  ing the program; and

        A. 5322--B                         12
 
     1    (c) the legislature for recommended statutory changes. Such  recommen-
     2  dations shall include a recommendation as to whether to modify the defi-
     3  nition of recycling under this title.
     4  § 27-3413. Funding mechanism.
     5    1.    All costs of the program, including administration, enforcement,
     6  and all other state costs of the program and organizations' costs of the
     7  program, including but not limited to those costs described in  subdivi-
     8  sion  three  of  this section shall be covered by producer payments. The
     9  department shall promulgate rules and regulations in the manner required
    10  by section 27-3419 of this title  setting  forth  the  manner  in  which
    11  producer  payments  on  packaging  materials  shall  be  calculated  and
    12  assessed. Payments shall be calculated based on:
    13    (a) The packaging material type;
    14    (b) The quantity of each packaging material type, by weight, that  the
    15  producer sells, offers for sale, or distributes in the state;
    16    (c)  Eco-modulation,  including  as  described in subdivision seven of
    17  this section.
    18    2. The list of packaging material types for which there is a  specific
    19  fee shall include, at a minimum, the following material types:
    20    (a) Paper;
    21    (b) Cardboard;
    22    (c) Corrugated cardboard;
    23    (d) Wood;
    24    (e) Glass;
    25    (f) Polyethylene terephthalate (PET);
    26    (g) High density polyethylene (HDPE);
    27    (h) Expanded polystyrene (EPS);
    28    (i) Polystyrene;
    29    (j) Bio-plastics;
    30    (k) Generic plastics;
    31    (l) Plastic film;
    32    (m) Other plastics;
    33    (n) Steel or ferrous;
    34    (o) Aluminum;
    35    (p) Tinplate;
    36    (q) Generic metals; and
    37    (r)  Mixed materials including laminates and packaging containing more
    38  than one of the above materials.
    39    3. Packaging fees shall be designed to cover, at  minimum,  the  total
    40  costs associated with:
    41    (a)  Costs to provide curbside collection or other form of residential
    42  service that is, at  minimum,  as  convenient  as  detailed  in  section
    43  27-3415 of this title;
    44    (b)  The department's and other state agencies' administration of this
    45  title;
    46    (c) Organizations' administration of this title;
    47    (d) The cost associated with the development of the needs  assessment,
    48  as required in section 27-3421 of this title;
    49    (e) The costs associated with the advisory council and the toxic pack-
    50  aging task force;
    51    (f)  The  costs  associated  with establishing packaging reduction and
    52  reuse infrastructure;
    53    (g) The cost of providing recycling services, including the collection
    54  cost, processing cost for each recyclable  material,  cost  of  handling
    55  non-recyclable  material  types  collected as part of a recycling opera-
    56  tion, transportation cost of recycling for each material type; and

        A. 5322--B                         13
 
     1    (h) Any other factors determined by the department.
     2    4.  The  department  may  adjust fees to be paid by producers based on
     3  factors that affect system costs. At a minimum, fees shall  be  variable
     4  based on:
     5    (a)  costs  to process packaging materials for acceptance by secondary
     6  material markets;
     7    (b) whether the packaging material would typically be readily-recycla-
     8  ble as determined by the department after consultation with the advisory
     9  council, except that as a consequence of the packaging design, the pack-
    10  aging product has the effect of disrupting recycling  processes  or  the
    11  product  includes labels, inks, and adhesives containing heavy metals or
    12  other toxic substances that would result in contamination of the recycl-
    13  ing process;
    14    (c) whether the packaging material  is  specifically  designed  to  be
    15  reusable or refillable and has high reuse or refill rate;
    16    (d)  the commodity value of a packaging material, as determined by the
    17  department after consultation with the advisory council; and
    18    (e) any other factors determined by the department.
    19    5. The fees shall be adjusted, or the  producers  may  be  provided  a
    20  credit,  based  upon  the  percentage of post-consumer recycled material
    21  content and such percentage of post-consumer recycled content  shall  be
    22  verified  by  the  organization  or  through  an independent third party
    23  approved to perform verification services to ensure that such percentage
    24  exceeds the minimum requirements in the packaging, as long as the  recy-
    25  cled  content  does not, in the determination of the department, disrupt
    26  the potential for future recycling.
    27    6. In addition to the annual schedule  of  fees,  the  department  fee
    28  schedule  may  include  a  special  assessment on specific categories of
    29  packaging materials at the request of responsible entities  representing
    30  and  approved  by  the  advisory  council if the nature of the packaging
    31  material imposes unusual costs in collection or processing  or  requires
    32  special  actions  to address effective access to recycling or successful
    33  processing in local government recycling facilities,  as  determined  by
    34  the department after consultation with the advisory council.
    35    7.  The  program charges shall be structured to provide producers with
    36  financial incentives to encourage:
    37    (a) A reduction in total packaging as measured by unit weight used  by
    38  producers,  and  discarded  by  consumers, businesses, institutions, and
    39  other users. Weight reductions shall not  be  achieved  by  substituting
    40  plastic for other materials types;
    41    (b) An increase in the proportion of a producer's total packaging that
    42  is managed within a reuse and refill system;
    43    (c) An increase in the proportion of a producer's total packaging that
    44  is  deemed  recyclable  as  determined  by  an  annual review process as
    45  described in section 27-3405 of this title;
    46    (d) An increase in the proportion of a producer's total packaging that
    47  is ultimately recycled;
    48    (e) A reduction in toxic components in packaging materials; and
    49    (f) A reduction in litter from packaging materials.
    50    8. There shall be no fee assessed on packaging that  is  designed  for
    51  reuse and refill and contained within a reuse or refill system.
    52    9.  Any  funds  directly collected pursuant to this title shall not be
    53  used to carry out lobbying activities on behalf of an organization.
    54    10. No retailer may charge a point-of-sale or other fee  to  consumers
    55  to facilitate a producer to recoup the costs associated with meeting the
    56  obligations under this title.

        A. 5322--B                         14
 
     1    11.  Nothing in this title shall require a local government to partic-
     2  ipate in the program.
     3    12.  The  department  shall update and revise the fees with input from
     4  the advisory council every three years.
     5  § 27-3415. Collection and convenience.
     6    1. The program shall provide for widespread, convenient, and equitable
     7  access to collection opportunities for recyclable packaging materials at
     8  no additional cost. Such opportunities shall be provided  to  all  resi-
     9  dents  of  the state in a manner that is as convenient as the collection
    10  of municipal solid waste.
    11    2. Participation in the program shall not  restrict  a  jurisdiction's
    12  consumer's  ability  to  contract  directly with third parties to obtain
    13  recycling collection services if consumers have the option to enter into
    14  such contracts as of the effective date of this title, as  long  as  the
    15  consumer  still  voluntarily chooses to contract directly with the third
    16  party.   The local government shall not  provide  disbursement  to  such
    17  third  party  should  the  local government provide widespread recycling
    18  services either directly or through a contract that  is  different  from
    19  the  contract  with  such  third party, and there shall be procedures in
    20  place to ensure that no service provider is compensated more  than  once
    21  for the same service.
    22    3.  All  local government or private recycling service providers shall
    23  provide for the collection and  recycling  of  all  packaging  materials
    24  contained on the minimum recyclables lists, based on geographic regions,
    25  in  order  to  be eligible for reimbursement; provided, however, nothing
    26  shall penalize a local  government  or  private  recycling  service  for
    27  recovering  and  recycling  materials  that  are  generated in the local
    28  government or geographic region that are not  included  on  the  minimum
    29  recyclables  lists as long as it can be demonstrated that such materials
    30  have a consistent regional market for  purchase  as  determined  by  the
    31  department in consultation with the producer or organization.
    32    4.  Reimbursement  shall  cover  reduction, as contemplated by section
    33  27-3413 of this title, collection, processing, transportation, and recy-
    34  cling and disposal of all packaging materials so  long  as  the  program
    35  includes at least the minimum recyclables list. The department may grant
    36  an  exception  of  the  requirements  in this subdivision upon a written
    37  showing by the  local  government  or  private  recycling  service  that
    38  compliance with the requirements is not practicable for a specific iden-
    39  tified product or material and if the department finds it is in the best
    40  interest  of  the  intent of this title to grant an exception; provided,
    41  however, that any such exception granted by  the  department  shall  not
    42  exceed twelve months.
    43    5.  The  department  shall  promulgate rules and regulations to ensure
    44  that program funds shall be used for investment in  collection  systems,
    45  transportation   systems, reuse systems, washing systems, redistribution
    46  systems, technology for tracking and data collection,  capital  expendi-
    47  tures  on  new  and  emerging technology that is focused on reusable and
    48  refillable packaging, as well as equipment, and  facilities,  and  other
    49  projects    determined   by   the department to facilitate the goals and
    50  objectives of this title.
    51    6. Nothing in this title shall be  deemed  to  automatically  void  or
    52  nullify  any  collection contracts in effect as of the effective date of
    53  this title.
    54  § 27-3417. Producer responsibilities.
    55    1. Beginning thirty months after the effective date of this  title,  a
    56  producer  shall not sell, offer for sale, or distribute into the state a

        A. 5322--B                         15
 
     1  product contained, protected, delivered, presented,  or  distributed  in
     2  packaging  unless the producer is registered with an organization and in
     3  full compliance with all requirements of this title.
     4    2.  Either when the producer registers, or within thirty months of the
     5  effective date of this title, whichever is later and annually  thereaft-
     6  er,  each  producer  shall  provide  the organization with the following
     7  information:
     8    (a) Contact information, including the name, electronic  and  physical
     9  address,  and  telephone  number of the authorized representative of the
    10  producer;
    11    (b) A comprehensive list of the types and brands of packaging  materi-
    12  als for which the producer or producers are responsible for;
    13    (c)  The  total amount, in units and weight, of each type of packaging
    14  material sold, offered for sale, or distributed for sale into the  state
    15  by the producer in the prior calendar year; and
    16    (d) Any other information required by the department.
    17    3. Producers are responsible for payment of fees, through an organiza-
    18  tion,  based  on  the quantity, type of packaging used in the state, and
    19  other factors.
    20    4. Producers are responsible for meeting the toxic substances, packag-
    21  ing reduction, post-consumer content, and recycling standards under this
    22  title.
    23    5. A producer  shall  electronically  submit  annually,  to  both  the
    24  department  and  the  packaging  reduction and recycling organization, a
    25  written declaration signed by its chief executive officer, verifying the
    26  producer's compliance with:
    27    (a) The packaging material reduction requirements of this title;
    28    (b) The packaging  material  recycled  content  requirements  of  this
    29  title;
    30    (c) The packaging material recycling requirements of this title;
    31    (d) The toxic substance reduction requirements of this title; and
    32    (e)  Any  reimbursement  obligations they have to local governments or
    33  third party service providers in connection with this title.
    34    6. A producer is exempt from the requirements and prohibitions of this
    35  title in a calendar year in which:
    36    (a) The producer realized less than  five  million  dollars  in  total
    37  gross revenue during the prior calendar year; or
    38    (b)  The  producer  sold,  offered  for  sale, or distributed for sale
    39  products contained, protected, delivered, presented, or  distributed  in
    40  or  using  less  than two tons of packaging material in total during the
    41  prior calendar year.
    42    7. A producer claiming an exemption pursuant  to  subdivision  six  of
    43  this section shall provide the department with sufficient information to
    44  demonstrate that the claimant is eligible for an exemption.
    45    8. Nothing in this title shall impair a producer's eligibility for tax
    46  credits  or  other  business  incentives  for which they would otherwise
    47  qualify.
    48  § 27-3419. Department responsibilities.
    49    1. Within eighteen months of the effective date  of  this  title,  the
    50  department  shall,  in  accordance  with  section 27-3437 of this title,
    51  promulgate all rules and regulations necessary to implement, administer,
    52  and enforce the provisions of this title,  including  setting  standards
    53  for  consumer  protection when the organization directly disburses funds
    54  to third parties. These rules and regulations shall include  prohibiting
    55  certain  packaging  toxins pursuant to section 27-3425 of this title and
    56  setting recommended  producers'  program  fees,  after  consulting  with

        A. 5322--B                         16
 
     1  multiple  stakeholders,  including local governments, businesses, insti-
     2  tutions, and other extended producer  responsibility  programs.  Program
     3  fees shall be set as required by section 27-3413 of this title.
     4    2.  The  department  shall revise recommended program fees every three
     5  years, beginning three years after the first  set  of  program  fees  is
     6  established, to reflect new data received about material use and manage-
     7  ment,  or  whenever  the targets set in this title are not met, to drive
     8  compliance with such targets.
     9    3. Beginning two years after the effective date  of  this  title,  and
    10  annually  thereafter,  the  department shall work with each organization
    11  to:
    12    (a) Calculate the amount of packaging that was  generated  during  the
    13  prior calendar year;
    14    (b)  Calculate  the  recycling rate for all packaging during the prior
    15  calendar year;
    16    (c) Calculate the recycling rate  for  each  packaging  material  type
    17  during the prior calendar year;
    18    (d)  Develop  a  list  of  producers  reasonably believed to be out of
    19  compliance with the requirements of this title; and
    20    (e) Utilize this information with input from the advisory  council  to
    21  produce  an  annual  report to be shared with the legislature and posted
    22  publicly on the department's website.
    23    4. In the event that the department determines that  the  organization
    24  no  longer  meets  the requirements of this title, or fails to implement
    25  and administer the requirements of this title in a manner that  effectu-
    26  ates  the  purposes  of this title, after reasonable opportunity to cure
    27  such deficiencies, the department shall  revoke  its  approval  of  such
    28  organization  and  shall  either  select  a new organization pursuant to
    29  section 27-3403 of this title or elect to operate the program itself.
    30  § 27-3421. Statewide packaging reduction,  reuse,  and  recycling  needs
    31               assessment.
    32    1.  No  later than one year after the effective date of this title and
    33  every five years thereafter, the department shall complete or  cause  to
    34  be completed a statewide packaging reduction, reuse, and recycling needs
    35  assessment to determine the current state of packaging reuse, recycling,
    36  and  disposal,  and  identify  barriers  and opportunities to reduce the
    37  amount of packaging discarded and disposed of, and increase  the  reusa-
    38  bility and recyclability of packaging.
    39    2. The needs assessment, at a minimum, shall cover the following:
    40    (a)  The  current  recycling  rate for each type of packaging material
    41  material;
    42    (b) The amount, by weight and material  type,  of  packaging  material
    43  recycled  at  each  recycling  facility that accepts discarded packaging
    44  generated in the state;
    45    (c) The processing capacity, market conditions, and  opportunities  in
    46  the state and regionally for recyclable materials generally, and packag-
    47  ing material categories specifically;
    48    (d)  The  net  cost  of  end-of-life management of discarded packaging
    49  material  in  the  state,  including  the  cost  associated   with   the
    50  collection,  transportation,  sortation, recycling, littering, landfill-
    51  ing, or incineration of discarded packaging;
    52    (e) The availability of  opportunities  in  the  recycling  and  reuse
    53  system for minority- and women-owned businesses;
    54    (f)  Current  barriers  affecting recycling access and availability in
    55  the state;

        A. 5322--B                         17
 
     1    (g) Current barriers to  the  marketability  of  recyclable  materials
     2  generated in the state;
     3    (h)  Opportunities  for  the  creation of packaging material reuse and
     4  refill programs in the state;
     5    (i) Opportunities for the improvement of packaging material  recycling
     6  in  the  state,  including  the  development of end markets for recycled
     7  packaging materials.
     8    (j) Current barriers affecting  the  creation  and  implementation  of
     9  packaging material reuse and refill programs;
    10    (k)  Consumer  education  needs in the state with respect to packaging
    11  material waste reduction, recycling, and reducing contamination in recy-
    12  cling, and reuse and refill systems for packaging material; and
    13    (l) Landfill capacity.
    14    3. The cost incurred by the department associated with conducting  the
    15  needs assessment shall be paid for by the organization.
    16    4.  The department shall report the results of the needs assessment to
    17  the public, the state legislature, and the governor, and shall post  the
    18  results on its website.
    19  § 27-3423. Education and outreach program.
    20    1.  The  organization  shall  develop  and  implement  an  educational
    21  outreach program designed to educate the public  about  waste  reduction
    22  and  improve  the  effectiveness of local government recycling and, at a
    23  minimum, include:
    24    (a) Educational and informational materials for consumers  related  to
    25  reducing the amount of packaging discarded, recycled, and disposed of in
    26  the state;
    27    (b) A description of the environmental, social, economic, and environ-
    28  mental  justice  impacts  associated with improper disposal of packaging
    29  material and failure to reuse or recycle packaging materials;
    30    (c) Information on the  proper  end-of-life  management  of  packaging
    31  material, including reuse, recycling, composting, and disposal;
    32    (d)  The  location  and  availability of curbside collection and addi-
    33  tional drop-off collection opportunities for packaging material, includ-
    34  ing deposit and take-back programs;
    35    (e) How to prevent litter of packaging  material  in  the  process  of
    36  collection;
    37    (f)  Recycling  instructions  that are consistent statewide, except as
    38  necessary to take into account differences among local laws and process-
    39  ing capabilities, easy to understand, and easily accessible; and
    40    (g) Any other information required by the department.
    41    2. The educational outreach program shall incorporate, at  a  minimum,
    42  electronic,  print,  web-based  and social media elements, including for
    43  use by local governments at their discretion, as  well  as  including  a
    44  variety  of  outreach  and  education  tools.  Such educational outreach
    45  programs shall ensure materials are widely accessible and  available  in
    46  multiple languages.
    47    3.  The  educational  outreach  program  shall be coordinated with and
    48  assist local government programs, local government contracted  programs,
    49  solid waste collection companies, and other entities providing services.
    50    4. The educational outreach program shall be developed to ensure envi-
    51  ronmental justice communities receive targeted outreach and support.
    52    5.  The educational outreach program shall include a plan to work with
    53  producers to label  or  mark  packaging  material,  in  accordance  with
    54  reasonable  labeling  standards, with information to assist consumers in
    55  responsibly managing and recycling covered products.

        A. 5322--B                         18
 
     1    6. The organization shall consult with local governments on the devel-
     2  opment of educational materials and may coordinate  with  local  govern-
     3  ments on outreach and communication.
     4    7.  The  organization  shall  be  authorized  to provide producers and
     5  retailers  with  educational  materials  related  to   the   responsible
     6  reduction,  reuse, recycling, or disposal of discarded packaging materi-
     7  al. The educational and informational materials provided to the retailer
     8  under this subdivision may include, but need not be limited to,  printed
     9  materials,  signage,  templates  of  materials that can be reproduced by
    10  retailers and provided thereby to consumers at the time of  a  product's
    11  purchase, and advertising materials that promote and encourage consumers
    12  to properly reuse, recycle, or dispose of packaging material.
    13    8. The organization shall make information on relevant tax credits and
    14  other business incentives available to producers.
    15  § 27-3425. Prohibition on certain toxic substances and materials.
    16    1. Beginning two years after the promulgation of rules and regulations
    17  pursuant  to this title, no person or entity shall sell, offer for sale,
    18  or distribute into the state any packaging containing any of the follow-
    19  ing toxic substances:
    20    (a) Ortho-phthalates;
    21    (b) Bisphenols;
    22    (c) Per- and polyfluoroalkyl substances (PFAS);
    23    (d) Heavy metals and compounds, including lead,  hexavalent  chromium,
    24  cadmium, and mercury;
    25    (e) Benzophenone and its derivatives;
    26    (f) Halogenated flame retardants;
    27    (g) Perchlorate;
    28    (h) Formaldehyde;
    29    (i) Toluene;
    30    (j) Antimony and compounds;
    31    (k) Carbon black;
    32    (l) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol);
    33    (m) Polyvinyl chloride, including polyvinylidene chloride;
    34    (n) Polystyrene; or
    35    (o) Polycarbonate.
    36    2.(a)  There is hereby established within the department a toxic pack-
    37  aging task force to review the toxicity in packaging in the  state,  and
    38  to  recommend  to  the  department  the  designation of additional toxic
    39  substances which shall be subject  to  the  same  prohibition  as  those
    40  substances listed in subdivision one of this section.
    41    (b)  The  toxic  packaging task force shall have seven members, one of
    42  whom shall be the commissioner or their designee who shall be chair, and
    43  one of whom shall be the commissioner of health or their  designee.  The
    44  other  members  shall  include:    (i) a representative of the packaging
    45  industry; (ii) a representative of an  environmental  justice  organiza-
    46  tion; and (iii) a representative from the chemical industry; all of whom
    47  shall  be  appointed by the commissioner. The remaining members shall be
    48  persons with significant professional or academic  expertise  in  public
    49  health  and  toxicology, one of whom shall be appointed by the temporary
    50  president of the senate and one of whom shall be appointed by the speak-
    51  er of the assembly.  Appointments to the toxic packaging task force  are
    52  term limited to five consecutive years of service.
    53    (c)  The  task  force shall meet at least twice per year to review and
    54  recommend  to  the  department  whether  there  are   additional   toxic
    55  substances  or  classes  of  toxic  substances for use in packaging that

        A. 5322--B                         19
 
     1  should no longer be sold, offered for sale,  distributed  for  sale,  or
     2  distributed for such use in this state.
     3    3.  Within  one  hundred eighty days of the toxic packaging task force
     4  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    4. Any producer that violates this section,  or  any  rules  or  regu-
    11  lations promulgated pursuant to this section, shall be subject to a fine
    12  for each violation not to exceed ten thousand dollars per violation. For
    13  the  purposes  of  this section, each product line that is sold, offered
    14  for sale, or distributed to  consumers,  via  retail  commerce,  in  the
    15  state,  including  through an internet transaction shall be considered a
    16  separate violation.
    17  § 27-3427. Non-reusable packaging reduction standards.
    18    1. Each individual producer is required to meet the following  packag-
    19  ing reduction requirements:
    20    (a)  Beginning  three  years  after a producer first registers with an
    21  organization, such producer shall reduce the amount of  primary  plastic
    22  packaging and the amount of non-primary packaging for all materials used
    23  to  contain,  protect, deliver, present, or distribute the products they
    24  sell, offer for sale, or distribute for sale  into  the  state,  by  ten
    25  percent by unit weight.
    26    (b)  Beginning  five  years  after  a producer first registers with an
    27  organization, such producer shall reduce the amount of  primary  plastic
    28  packaging and the amount of non-primary packaging for all materials used
    29  to  contain,  protect, deliver, present, or distribute the products they
    30  sell, offer for sale, or distribute for sale into the state,  by  twenty
    31  percent by unit weight.
    32    (c)  Beginning  eight  years  after a producer first registers with an
    33  organization, such producer shall reduce the amount of  primary  plastic
    34  packaging and the amount of non-primary packaging for all materials used
    35  to  contain,  protect, deliver, present, or distribute the products they
    36  sell, offer for sale, or distribute for sale into the state,  by  thirty
    37  percent by unit weight.
    38    (d)  Beginning  ten  years  after  a  producer first registers with an
    39  organization, such producer shall reduce the amount of  primary  plastic
    40  packaging and the amount of non-primary packaging for all materials used
    41  to  contain,  protect, deliver, present, or distribute the products they
    42  sell, offer for sale, or distribute for sale into the  state,  by  forty
    43  percent by unit weight.
    44    (e)  Beginning  twelve  years after a producer first registers with an
    45  organization, such producer shall reduce the amount of  primary  plastic
    46  packaging and the amount of non-primary packaging for all materials used
    47  to  contain,  protect, deliver, present, or distribute the products they
    48  sell, offer for sale, or distribute for sale into the  state,  by  fifty
    49  percent by unit weight.
    50    2.  The  reductions required by this section shall be measured against
    51  the total amount of packaging the producer  used  to  contain,  protect,
    52  deliver,  present,  or  distribute  the  products they sold, offered for
    53  sale, or distributed for sale,  during  the  first  year  such  producer
    54  registered with the packaging reduction organization.
    55    3.  These reductions shall be achieved by eliminating single-use pack-
    56  aging, including secondary or tertiary packaging, elimination of packag-

        A. 5322--B                         20
 
     1  ing components, reduction of packaging components, or  by  transitioning
     2  to reusable or refillable packaging systems.
     3    4.  The  reductions  required by this section shall not be achieved by
     4  substituting non-plastic materials with plastic materials or  substitut-
     5  ing recyclable materials with non-recyclable materials.
     6    5.  In  the  case of a producer for which, as of the effective date of
     7  this title or upon entry into the market after such  effective  date,  a
     8  portion  of  its  packaging is reusable and contained within a reuse and
     9  refill system, such producer may apply to the department  for  a  waiver
    10  from  the  packaging reduction requirements set forth in subdivision one
    11  of this section with respect to that percentage  of  its  packaging,  by
    12  unit weight, which is contained within a reuse and refill system.
    13    6.  In  the case of a producer that demonstrates in a manner satisfac-
    14  tory to the department that, for the period beginning five  years  prior
    15  to  the effective date of this title and ending on the date which is two
    16  years after the effective date of this title, the producer  reduced  the
    17  amount  of  packaging  used  to  contain,  protect, deliver, present, or
    18  distribute the products the producer sells, offers for sale, or distrib-
    19  utes for sale into the state, such  producer may apply to the department
    20  for a waiver from the packaging reduction requirements of  this  section
    21  with  respect to that percentage of its packaging, by unit weight, which
    22  was reduced during such five-year period.
    23    7. A producer may apply to  the  department  for  a  waiver  from  the
    24  reduction  requirements  of this section if compliance is impossible due
    25  to federal law. Such waiver must be  applied  for  annually.    In  such
    26  application  the  producer shall provide the department and the advisory
    27  council with sufficient information, in the determination of the depart-
    28  ment in consultation with the advisory council, to make a  determination
    29  on  such  application,  including  proof that the producer has taken all
    30  feasible actions to achieve the reductions required by this section.
    31    8. Nothing in this section shall preclude a producer from going beyond
    32  the reduction standards in subdivision one of this section.
    33  § 27-3429. Recycled content standards.
    34    1. Each individual producer shall meet the recycling  content  targets
    35  contained in this section.
    36    2. Beginning two years after the effective date of this section:
    37    (a) all glass containers manufactured in the state used by the produc-
    38  er shall contain, on average, at least thirty-five percent post-consumer
    39  recycled content;
    40    (b) all paper carryout bags sold, offered for sale, or given away free
    41  in  the  state  by  a producer shall contain, on average, at least forty
    42  percent post-consumer recycled content; except that a paper carryout bag
    43  that holds eight pounds or less shall only be required  to  contain,  on
    44  average, at least twenty percent post-consumer recycled content; and
    45    (c)  all plastic trash bags sold or offered for sale in the state by a
    46  producer shall contain, on average, at least twenty percent post-consum-
    47  er recycled content.
    48    3. The requirements of this section shall not  apply  to  reusable  or
    49  refillable packaging or containers.
    50    4.  Beginning  two  years  after  plan  implementation  begins for the
    51  initial organization, the department is authorized, in consultation with
    52  the advisory council, to:
    53    (a) establish content requirements for materials not listed in  subdi-
    54  vision two of this section; and
    55    (b)  modify the post-consumer recycled content targets for the materi-
    56  als set forth in subdivision two of this section, provided that  modifi-

        A. 5322--B                         21
 
     1  cations  do not result in a lesser percentage or an earlier year for the
     2  respective target.
     3  § 27-3431. Recyclability criteria and packaging recycling requirements.
     4    1. Beginning two years after the effective date of this section, pack-
     5  aging materials used by a producer shall meet the following recyclabili-
     6  ty criteria:
     7    (a)  be  capable  of  being sorted by entities that process recyclable
     8  material generated in the state;
     9    (b) has a consistent regional market for purchase, by end users in the
    10  production of new products;
    11    (c) does not contain the following:
    12    (i) non-detectable pigments,  including  but  not  limited  to  carbon
    13  black;
    14    (ii)  the  toxic  substances  set  forth in subdivision one of section
    15  27-3425 of this title and those designated by the toxic  packaging  task
    16  force pursuant to subdivision two of section 27-3425 of this title;
    17    (iii) opaque or pigmented polyethylene terephthalate;
    18    (iv) oxo-degradable additives, including oxo-biodegradable additives;
    19    (v) polyethylene terephthalate glycol in rigid packaging;
    20    (vi)  label  constructions,  including  adhesives, inks, materials and
    21  formats, or features that render a package non-recyclable or  disruptive
    22  to  the  recycling process, as determined by the department in consulta-
    23  tion with the advisory council; and
    24    (vii) DoPS - polystyrene, including EPS (expanded polystyrene);
    25    (d) meets the post-consumer content requirements of this title; and
    26    (e) any other criteria determined by the department.
    27    2. The department shall maintain a list of packing material that  meet
    28  these  criteria  and  are  deemed to be recyclable. The department shall
    29  update this list annually.
    30    3. Each individual producer shall be required to  meet  the  following
    31  recycling rate standards:
    32    (a) With respect to the producer's non-plastic packaging:
    33    (i)  Beginning  January first, two thousand twenty-eight, a minimum of
    34  thirty-five percent of packaging material reported by the producer or an
    35  organization as supplied into the state shall  be  reused  or  recycled,
    36  with a minimum of five percent being reused;
    37    (ii)  Beginning  January first, two thousand thirty-five, a minimum of
    38  fifty percent of packaging material  reported  by  the  producer  or  an
    39  organization  as  supplied  into  the state shall be reused or recycled,
    40  with a minimum of ten percent being reused; and
    41    (iii) Beginning January first, two thousand fifty, a minimum of seven-
    42  ty-five percent of packaging material reported by  the  producer  or  an
    43  organization  as  supplied  into  the state shall be reused or recycled,
    44  with a minimum of twenty percent being reused.
    45    (b) With respect to plastic packaging:
    46    (i) Beginning January first, two thousand twenty-eight, a  minimum  of
    47  twenty-five  percent  of  plastic  packaging  material  reported  by the
    48  producer or an organization as supplied into the state shall  be  reused
    49  or recycled;
    50    (ii)  Beginning  January first, two thousand thirty-five, a minimum of
    51  fifty percent of plastic packaging material reported by the producer  or
    52  an  organization as supplied into the state shall be reused or recycled;
    53  and
    54    (iii) Beginning January first, two thousand fifty, a minimum of seven-
    55  ty-five percent of plastic packaging material reported by  the  producer

        A. 5322--B                         22
 
     1  or  an  organization as supplied into the state shall be reused or recy-
     2  cled.
     3    4.  The department may adjust the recycling rates in subdivision three
     4  of this section by rulemaking based on information gathered through  the
     5  needs  assessment or provided in producer plans and reports, or based on
     6  consideration of environmental, technical and  economic  conditions.  An
     7  adjustment  to the statewide recycling and reuse performance targets may
     8  not adjust the recycling rate target to less than thirty-five percent or
     9  more than seventy-five percent.
    10    5. A producer may apply to  the  department  for  a  waiver  from  the
    11  reduction  requirements  of this section if compliance is impossible due
    12  to federal law. Such waiver shall  be  applied  for  annually.  In  such
    13  application  the  producer shall provide the department and the advisory
    14  council with sufficient information, in the determination of the depart-
    15  ment in consultation with the advisory council, to make a  determination
    16  on  such  application,  including  proof that the producer has taken all
    17  feasible actions to achieve the reductions required by this section.
    18    6. The requirements of subdivision three of  this  section  shall  not
    19  apply to reusable or refillable packaging or containers.
    20  § 27-3433. Establishment of the office of recycling inspector general.
    21    1. The commissioner shall establish an independent office of recycling
    22  inspector general within the department. The recycling inspector general
    23  shall  evaluate the programs created pursuant to this title on an annual
    24  basis and shall ensure such programs are functioning properly, and  that
    25  all producers are in compliance with the requirements of this title.
    26    2.  The recycling inspector general shall have the authority to inves-
    27  tigate the  compliance  of  producers  and  the  organization  with  all
    28  provisions of this title and to bring enforcement actions for violations
    29  of  this  title  pursuant  to  the provisions of section 27-3435 of this
    30  title.
    31  § 27-3435. Penalties and enforcement.
    32    1. Failure to comply with the requirements of this title shall subject
    33  the organization or an individual producer to penalties for  violations.
    34  The  department,  recycling  inspector general, or attorney general, may
    35  conduct investigations, including inspecting operations, facilities, and
    36  records of producers and organizations, and performing audits of produc-
    37  ers and organizations, to determine whether such producers and organiza-
    38  tions are complying with the requirements of this title.
    39    2. The department, the recycling inspector general,  or  the  attorney
    40  general,  shall  notify  an  organization  or producer of any conduct or
    41  practice that does not comply with the requirements of this title and of
    42  any inconsistencies identified in an audit.
    43    3. The department, the recycling inspector general, and  the  attorney
    44  general,  may  issue a notice of violation to, and impose an administra-
    45  tive civil penalty not to  exceed  one  thousand  dollars  per  day  per
    46  violation  on any entity not in compliance with this title or any of the
    47  regulations the department adopts  to  implement  this  title.  For  the
    48  purposes  of  this  section, each product line that is sold, offered for
    49  sale, or distributed to consumers via  retail  commerce  in  the  state,
    50  including  through  an internet transaction, shall be considered a sepa-
    51  rate violation.
    52    4. Civil penalties under this section shall be assessed by the depart-
    53  ment after an opportunity to be heard  pursuant  to  the  provisions  of
    54  section  71-1709  of  this  chapter,  or  by  the court in any action or
    55  proceeding pursuant to section 71-2727 of this chapter, and in  addition
    56  thereto,  such  person or entity may by similar process be enjoined from

        A. 5322--B                         23
 
     1  continuing such violation and any permit, registration or other approval
     2  issued by the department may  be  revoked  or  suspended  or  a  pending
     3  renewal denied.
     4  § 27-3437. Rules and regulations.
     5    1.  Within  eighteen  months after the effective date of this section,
     6  the department shall promulgate all rules and regulations  necessary  to
     7  implement, administer, and enforce the provisions of this title.
     8    2. When promulgating rules pursuant to the provisions of this section,
     9  the  department shall solicit input from the public of any draft rule or
    10  regulation to implement this section, including at a minimum  a  ninety-
    11  day comment period and one public hearing on such draft rules.
    12  § 27-3439. State preemption.
    13    Jurisdiction in all matters pertaining to costs and funding mechanisms
    14  of  packaging  reduction  and  recycling  organizations  relating to the
    15  recovery of packaging materials shall, by this title, be  vested  exclu-
    16  sively in the state; provided, however, that nothing in this title shall
    17  preclude  any  city,  town,  village  or other local planning units from
    18  determining what materials shall be included for recycling  in  a  local
    19  government  recycling  collection  program  or shall preclude any person
    20  from coordinating, for recycling or reuse, the collection  of  packaging
    21  materials and products.
    22  § 27-3441. Other assistance programs.
    23    Nothing  in  this  title shall impact any producer eligibility for any
    24  state or local incentive or assistance program to which they are  other-
    25  wise eligible.
    26  § 27-3443. Severability.
    27    The  provisions  of  this  title shall be severable and if any phrase,
    28  clause, sentence or provision of this title or the applicability thereof
    29  to any person or circumstance shall be held invalid,  the  remainder  of
    30  this title and the application thereof shall not be affected thereby.
    31    §  3.  The  environmental  conservation law is amended by adding a new
    32  section 37-0202 to read as follows:
    33  § 37-0202. Applicability.
    34    This article shall only have effect to the extent  that  the  prohibi-
    35  tions  in  this title are not otherwise substantially given effect or in
    36  conflict with the provisions of title thirty-four of article twenty-sev-
    37  en of this chapter.
    38    § 4. This act shall take effect immediately.
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