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S05027 Summary:

BILL NOS05027
 
SAME ASNo Same As
 
SPONSORKAVANAGH
 
COSPNSRMAY
 
MLTSPNSR
 
Add Art 27 Title 32 §§27-3201 - 27-3243, En Con L; add §92-kk, St Fin L
 
Relates to establishing the carpet stewardship program; establishes a carpet stewardship advisory board; requires the establishment of a carpet stewardship plan to be approved by the commissioner of environmental conservation; establishes the carpet administrative fund.
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S05027 Actions:

BILL NOS05027
 
02/22/2021REFERRED TO ENVIRONMENTAL CONSERVATION
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S05027 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5027
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    February 22, 2021
                                       ___________
 
        Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
 
        AN ACT to amend the environmental conservation law and the state finance
          law, in relation to establishing a carpet stewardship program

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Declaration of legislative findings and intent. The legis-
     2  lature finds and declares that it is the policy of the state of New York
     3  to promote the recyclability of products and materials  and  to  promote
     4  policies  that encourage the optimal goal of closed-loop recycling and a
     5  circular economy. The legislature finds  and  declares  that  the  solid
     6  waste management plan adopted by the department of environmental conser-
     7  vation  on December 27, 2010 entitled "Beyond Waste, A Sustainable Mate-
     8  rials Management Strategy for New York State" promotes  and  supports  a
     9  system   of   sustainable   solid  waste  management  and  favors  waste
    10  prevention, reuse, and recycling over the  disposal  of  materials.  The
    11  legislature  finds  and declares that in the solid waste management plan
    12  product stewardship was identified as a centerpiece  of  the  new  solid
    13  waste  management plan for the state, and carpet was one of the products
    14  identified as most suited to a stewardship approach  based  on  research
    15  and  feedback  from  stakeholders.    According  to  the  report, carpet
    16  accounted for 1.4 percent of total solid waste generation  in  New  York
    17  state,  or  roughly 512 million pounds.  Carpet waste is heavy and bulky
    18  and imposes significant solid waste management  cost  on  municipalities
    19  because  it  is  expensive  to  dispose  of.  The  legislature finds and
    20  declares that perfluoroalkyl and  polyfluoroalkyl  substances,  or  PFAS
    21  chemicals,  which  are harmful to humans are increasingly being found in
    22  household products, including carpets produced by  major  United  States
    23  carpet producers. The legislature further finds and declares that reduc-
    24  ing  the  toxic  components  in  carpet will not only reduce exposure to
    25  toxic chemicals in our homes and workplaces,  but  also  improve  market
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09864-01-1

        S. 5027                             2
 
     1  opportunities for carpet to be recycled back into carpet materials.  The
     2  legislature  finds  and  declares that enactment of this act will reduce
     3  carpet waste, encourage closed-loop  carpet  recycling,  and  provide  a
     4  mechanism  for  carpet  producer  stewardship of its product through its
     5  life cycle.
     6    § 2. Article 27 of the environmental conservation law  is  amended  by
     7  adding a new title 32 to read as follows:
     8                                  TITLE 32
     9                             CARPET STEWARDSHIP
    10  Section 27-3201. Short title and definitions.
    11          27-3203. Labeling, warranty, and design requirements.
    12          27-3205. Post-consumer content and adhesive requirements.
    13          27-3207. Carpet stewardship advisory board.
    14          27-3209. Stewardship organization responsibilities.
    15          27-3211. Stewardship plan.
    16          27-3213. Submission to the commissioner and approval timing.
    17          27-3215. Collection convenience standard requirements.
    18          27-3217. Stewardship assessment.
    19          27-3219. Administrative fee.
    20          27-3221. Producer responsibilities.
    21          27-3223. Retailer and distributor responsibilities.
    22          27-3225. Requirements for program collectors.
    23          27-3227. Requirement for recycling.
    24          27-3229. Department responsibilities.
    25          27-3231. Rules and regulations.
    26          27-3233. Annual audit and report.
    27          27-3235. Enforcement and penalties.
    28          27-3237. State preemption.
    29          27-3239. Procurement.
    30          27-3241. Anti-competitive conduct.
    31          27-3243. Severability.
    32  § 27-3201. Short title and definitions.
    33    1.  This title may be known as and may be cited as the "New York state
    34  carpet stewardship law".
    35    2. The definitions in this section apply throughout the  title  unless
    36  the context clearly requires otherwise:
    37    (a)  "Brand"  means  a name, symbol, word, or mark that attributes the
    38  product to the owner or licensee of the brand as the producer.
    39    (b) "Carpet" means a manufactured article that is (i) used in  commer-
    40  cial  buildings  or  single  or  multifamily residential buildings, (ii)
    41  affixed or placed on the floor or building walking surface as a  decora-
    42  tive  or  functional  building  interior  or exterior feature, and (iii)
    43  primarily constructed of a top surface  of  synthetic  or  natural  face
    44  fibers  or yarns or tufts attached to a backing system made of synthetic
    45  or natural materials. "Carpet"  includes,  but  is  not  limited  to,  a
    46  commercial  or  residential  broadloom carpet, modular carpet tiles, and
    47  artificial turf, pad or underlayment used in conjunction with a  carpet.
    48  "Carpet" does not include handmade rugs, area rugs, or mats.
    49    (c)"Carpet  stewardship  advisory board" means the board created under
    50  section 27-3207 of this title.
    51    (d) "Closed-loop recycling" means a process where discarded carpet  is
    52  collected, recycled, and then used again to make carpet.
    53    (e)  "Collection  rate"  means  the  amount of carpet collected and is
    54  determined by dividing the amount  of  discarded  carpet  collected  for
    55  recycling  or reuse by the total amount of carpet discarded in a program
    56  year.

        S. 5027                             3
 
     1    (f) "Collection site" means a permanent location in the state at which
     2  discarded carpet may be returned for recycling by a consumer.
     3    (g)  "Collector"  means a person who collects discarded carpet for the
     4  purpose of supplying the recyclers.
     5    (h) "Commissioner" means the commissioner of  environmental  conserva-
     6  tion.
     7    (i)  "Consumer"  means  a  person  located in the state who purchases,
     8  owns, leases, or uses carpet, including but not limited to  an  individ-
     9  ual, a business, corporation, limited partnership, not-for-profit corpo-
    10  ration, the state, a public corporation, public school, school district,
    11  private  or  parochial  school,  or  board  of  cooperative  educational
    12  services or governmental entity.
    13    (j) "Department" means the department of environmental conservation.
    14    (k) "Discarded carpet" means carpet  that  a  consumer  has  used  and
    15  disposed of in the state.
    16    (l) "Distributor" or "wholesaler" means a person who buys or otherwise
    17  acquires  carpet and sells or offers to sell carpet to retailers in this
    18  state.
    19    (m) "Energy recovery" means the process by which all or a  portion  of
    20  solid waste materials are processed or combusted in order to utilize the
    21  heat  content  or  other  forms  of energy derived from such solid waste
    22  materials.
    23    (n) "Perfluoroalkyl and polyfluoroalkyl substances"  or  "PFAS  chemi-
    24  cals" means a class of fluorinated organic chemicals containing at least
    25  one fully fluorinated carbon atom.
    26    (o)  "Producer"  means any person who manufactures or renovates carpet
    27  that is sold, offered for sale, or distributed in the state.  "Producer"
    28  includes:
    29    (i)  the  owner  of  a  trademark or brand under which carpet is sold,
    30  offered for sale, or distributed in this  state,  whether  or  not  such
    31  trademark or brand is registered in the state; and
    32    (ii) any person who imports carpet into the United States that is sold
    33  or  offered  for  sale in the state and that is manufactured by a person
    34  who does not have a presence in the United States.
    35    (p) "Proprietary information" means information that is a trade secret
    36  or  is  production,  commercial,  or  financial  information,  that   if
    37  disclosed  would  impair  the  competitive position of the submitter and
    38  would make available information not otherwise publicly available.
    39    (q) "Recycling" means the process by which discarded carpet  is  proc-
    40  essed and returned to the economic mainstream for the purpose of prepar-
    41  ing  the  materials,  components, or commodities for use or reuse in new
    42  products or components. "Recycling" does not include energy recovery  or
    43  energy  generation  by  means  of  combustion  or  landfill  disposal of
    44  discarded carpet.
    45    (r) "Recycling rate" means the percentage of discarded carpet products
    46  that is managed through recycling or reuse, as defined  by  this  title,
    47  and is computed by dividing the amount of discarded carpet collected and
    48  recycled  or  reused  by  the total amount of discarded carpet collected
    49  over a program year.
    50    (s) "Recycler" means a person that engages in recycling.
    51    (t) "Retailer" means any person who sells or offers for sale carpet to
    52  a consumer in the state.
    53    (u) "Reuse" means donating or selling a discarded carpet product  back
    54  into the market for its original intended use, when the discarded carpet
    55  product retains its original performance characteristics and can be used
    56  for its original purpose.

        S. 5027                             4

     1    (v) "Sale" or "sell" means a transfer of title of carpet for consider-
     2  ation,  including  a remote sale conducted through a sales outlet, cata-
     3  log, website, telephone, or through similar electronic means. "Sale"  or
     4  "sell"  includes  a lease through which carpet is provided to a consumer
     5  in the state by a producer, distributor, or retailer.
     6    (w)  "Stewardship  organization" means a nonprofit entity representing
     7  producers and other designated representatives who are cooperating  with
     8  one  another to collectively establish and operate a stewardship program
     9  for the purpose of complying with this title.
    10    (x) "Stewardship program" means a program financed and implemented  by
    11  producers  through  a stewardship organization that provides for, but is
    12  not limited to, the collection,  transportation,  reuse,  recycling,  or
    13  proper management through disposal, or an appropriate combination there-
    14  of, of discarded carpet.
    15  § 27-3203. Labeling, warranty, and design requirements.
    16    1.  On  and  after  the  effective  date of this title, carpet sold or
    17  offered for sale in the state shall  be  accompanied  by  the  following
    18  identifying information:
    19    (a) Name of the producer and contact information;
    20    (b) Carpet material, composition, and type of construction.
    21    2.  On and after the effective date of this title, all carpet shall be
    22  accompanied by an all-inclusive warranty for a period  of  seven  years,
    23  with exceptions for inappropriate use and damage.
    24    3.  On  and after a date that is two years after the effective date of
    25  this title, no carpet sold or  offered  for  sale  in  the  state  shall
    26  contain  or be treated with PFAS chemicals to provide a specific charac-
    27  teristic, appearance or quality, to perform a specific function, or  for
    28  any other purpose.
    29  § 27-3205. Post-consumer content and adhesive requirements.
    30    1.  On  and after a date that is two years after the effective date of
    31  this title, all carpet sold in the state shall be  manufactured  with  a
    32  minimum of ten percent from post-consumer sources; and four years there-
    33  after,  a minimum of twenty percent from post-consumer sources; and five
    34  years thereafter, a minimum of thirty percent from such sources.
    35    2. On and after a date which is two years after the effective date  of
    36  this  title,  no  permanent adhesives may be used in the installation of
    37  carpet. All carpet shall be  designed  and  installed  so  as  to  allow
    38  removal without significant damage to the carpet.
    39  § 27-3207. Carpet stewardship advisory board.
    40    1.  There  is  hereby  established  within  the  department the carpet
    41  stewardship advisory board  to  receive  and  review  stewardship  plans
    42  required  by  this  title  and  make recommendations to the commissioner
    43  regarding their approval.
    44    2. The board  shall  be  composed  of  eleven  voting  members  to  be
    45  appointed by the commissioner. Such members shall include:
    46    (a) one representative of carpet producers;
    47    (b) one representative of carpet retailers;
    48    (c) one representative of carpet recyclers;
    49    (d) one representative of carpet collectors;
    50    (e)  two representatives of companies that utilize discarded carpet to
    51  manufacture a new product;
    52    (f) one representative of a carpet installer association;
    53    (g) one representative from a statewide environmental organization;
    54    (h) one representative from a statewide waste disposal association;
    55    (i) one representative from the New York product stewardship  council;
    56  and

        S. 5027                             5
 
     1    (j) one at-large member.
     2    3.  Such  appointments  shall  be  made no later than the first day of
     3  January following the date on which this title takes effect.
     4    4. The members shall designate a  chair  from  among  the  members  by
     5  majority  vote. Board members shall receive no compensation but shall be
     6  entitled to their necessary and actual expenses incurred in the perform-
     7  ance of their board duties.
     8    5. The board shall meet at least quarterly by call of the chair.
     9    6. Each carpet stewardship plan prepared by a stewardship organization
    10  pursuant to this title shall be submitted to the advisory  board,  which
    11  shall  consider  whether  the  plan meets the criteria and objectives of
    12  this title.
    13    7. The board shall, within ninety days of such submission, either:
    14    (a) forward the plan to the commissioner with its  recommendation  for
    15  approval; or
    16    (b)  return the plan with its disapproval and stated reasons therefor,
    17  including any recommended changes to the plan necessary for approval.
    18    8. A stewardship organization may resubmit a plan for approval at  any
    19  time. Upon such resubmission, the board shall within ninety days forward
    20  the  plan  to  the  commissioner with its recommendation for approval or
    21  disapproval.
    22    9. The board shall review the submitted annual reports and  make  such
    23  recommendations  to  the department and stewardship organization with an
    24  approved plan for improving the plan.   10. The decision  of  the  board
    25  shall be by vote of the majority of its membership.
    26  § 27-3209. Stewardship organization responsibilities.
    27    1.  A  stewardship  organization shall be created and financed collec-
    28  tively by carpet producers.
    29    2. The stewardship organization shall demonstrate  to  the  department
    30  the  management capability and financial capacity to operate a statewide
    31  program.
    32    3. The stewardship organization shall not control, be  controlled  by,
    33  nor  be  under  common  control  of any single manufacturer, third-party
    34  organization, vendor, collector, or industry-wide trade association.
    35    4. The stewardship  organization  shall  have  a  board  of  directors
    36  composed of the following:
    37    (a) two representatives of carpet producers;
    38    (b) two representatives of carpet recyclers;
    39    (c)  two  representatives of manufacturers who utilize recycled carpet
    40  materials but are not carpet producers;
    41    (d) one representative of retailers;
    42    (e) one representative of  a  New  York-based  environmental  advocacy
    43  organization; and
    44    (f)  one  representative  of  an  organization  that  represents local
    45  government.
    46    5. On or before the first of  July  following  the  formation  of  the
    47  carpet  stewardship  advisory  board,  a  stewardship organization shall
    48  submit a stewardship plan to the carpet stewardship advisory board.
    49    6. A stewardship organization operating a  stewardship  program  shall
    50  update  the stewardship plan every three years, at a minimum, and submit
    51  the updated plan to the department for review and approval.
    52    7. The stewardship organization shall  notify  the  department  within
    53  thirty  days  of any significant changes or modifications to the plan or
    54  its implementation. Within thirty days of the  notification,  a  written
    55  plan  amendment  shall  be  submitted  to  the department for review and
    56  approval.

        S. 5027                             6
 
     1    8. The stewardship organization shall meet with the carpet stewardship
     2  advisory board at least twice per year.
     3    9.  The  stewardship  organization shall be responsible for producers'
     4  compliance with the requirements of this title, including: the  prepara-
     5  tion  and  implementation  of  a  stewardship  plan, the preparation and
     6  submission of annual audits, and reports to the commissioner as provided
     7  in section 27-3233 of this title.
     8  § 27-3211. Stewardship plan.
     9    1. The stewardship plan shall include, at a minimum:
    10    (a)  Certification  that  the  stewardship  program  will  accept  for
    11  collection all discarded carpet;
    12    (b)  Contact information for each individual representing the steward-
    13  ship organization, including the address of the stewardship organization
    14  where the department will send any  notifications  and  for  service  of
    15  process,  designation of a program manager responsible for administering
    16  the program, a list of all producers participating  in  the  stewardship
    17  program,  and  contact  information  for  each  producer,  including the
    18  address for service of process, and the brands covered  by  the  product
    19  stewardship program;
    20    (c)  A  description  of  the methods by which discarded carpet will be
    21  collected;
    22    (d) An explanation of how the stewardship program will achieve,  at  a
    23  minimum, a convenience standard under section 27-3215 of this title;
    24    (e)  A description of how the effectiveness of the stewardship program
    25  will be monitored, evaluated, and maintained;
    26    (f) The names and locations of  collection  sites,  transporters,  and
    27  recyclers who will manage discarded carpet;
    28    (g)  A  description  of  how  the  discarded carpet will be safely and
    29  securely transported, tracked, and handled from collection through final
    30  recycling and processing;
    31    (h) A description of the methods  to  be  used  to  reuse  or  recycle
    32  discarded  carpet to ensure that the components, to the extent feasible,
    33  are transformed or remanufactured into finished products for use;
    34    (i) A description of the methods to be used to manage  or  dispose  of
    35  discarded carpet that cannot be recycled or reused;
    36    (j) Establish goals for each year of the plan that increase the annual
    37  percent  of discarded carpet that is collected (collection rate) and the
    38  annual percent that is recycled (recycling  rate)  and  the  percent  of
    39  which,  pending  available markets, should be closed-loop recycled. This
    40  calculation is to be based on the previous three-year average amount  of
    41  carpet sold in the state so that the following goals are met:
    42    (i)  Five  years  after  the effective date of this title, twenty-five
    43  percent recycled, of which ten percent should be closed-loop recycling;
    44    (ii) Ten years after the effective date of this title,  fifty  percent
    45  recycled, of which twenty percent should be closed-loop recycling; and
    46    (iii)  Fifteen  years after the effective date of this title, seventy-
    47  five percent recycled, of which  forty  percent  should  be  closed-loop
    48  recycling.
    49    (k)  A description of the outreach and educational materials that must
    50  be provided to consumers, retailers, collection sites, and  transporters
    51  of  discarded carpet, and how such outreach will be evaluated for effec-
    52  tiveness. These materials shall include:
    53    (i)  information  about  collection  opportunities  for  post-consumer
    54  carpet; efforts to promote the source reduction, reuse, and recycling of
    55  carpet; and

        S. 5027                             7
 
     1    (ii) a program that shall be implemented to train carpet installers on
     2  how to properly manage discarded carpet.
     3    (l) An up-to-date stewardship organization website and toll-free tele-
     4  phone  number through which a consumer can easily learn how and where to
     5  return their discarded carpet for recycling;
     6    (m) An evaluation of the status of end markets  for  discarded  carpet
     7  and what, if any, additional end markets are needed to improve the func-
     8  tioning of the programs;
     9    (n)  A funding mechanism that demonstrates sufficient funding to carry
    10  out the plan, including the  administrative,  operational,  and  capital
    11  costs of the plan;
    12    (o) A description of a process by which an independent auditor will be
    13  selected  for  the  purposes  of section 27-3233 of this title. The plan
    14  shall identify the criteria used  by  the  stewardship  organization  in
    15  selecting an independent auditor, including:
    16    (i)  identify,  in  detail, the operational plans for interacting with
    17  retailers on the proper handling and management of post-consumer carpet;
    18    (ii) define the methodology for  calculating  the  fees  necessary  to
    19  achieve the annual collection and recycling rates;
    20    (iii)  ensure that fees collected are sufficient for implementation of
    21  this title.
    22    (p) Any other information required by regulations promulgated  by  the
    23  department.
    24    2. By the first of July after the effective date of this title, and by
    25  July  first  of each year thereafter, the stewardship organization shall
    26  submit a report to  the  department  that  includes,  for  the  previous
    27  program  year,  a description of the stewardship program, including, but
    28  not limited to, the following:
    29    (a) a description of the methods used to collect, transport, and proc-
    30  ess discarded covered products in regions of the state;
    31    (b) identification of all collection sites in the state;
    32    (c) the weight of all discarded covered products collected and  reused
    33  or recycled in all regions of the state;
    34    (d) an evaluation of whether the performance goals and recycling rates
    35  established in the stewardship plan have been achieved; and
    36    (e)  an  estimated weight of discarded covered products and any compo-
    37  nent materials that were collected pursuant to the stewardship plan, but
    38  not recycled.
    39  § 27-3213. Submission to the commissioner and approval timing.
    40    1. Before rejection or approval of a stewardship plan can be  made  in
    41  accordance  with  this  title, the stewardship organization shall submit
    42  the plan to the carpet stewardship advisory board.
    43    2. Within sixty days of submission of  the  stewardship  plan  to  the
    44  commissioner  upon the recommendation of the advisory board, the commis-
    45  sioner shall either approve the plan, or return it  to  the  stewardship
    46  organization and provide the reasons for disapproval.
    47    3.  The  stewardship  organization shall provide a revised plan to the
    48  commissioner within sixty days, and the commissioner  shall  approve  or
    49  reject such revised plan within thirty days.
    50    4.  The  stewardship organization shall implement the stewardship plan
    51  on the first of January in the year following approval of the plan under
    52  this section.
    53  § 27-3215. Collection convenience standard requirements.
    54    1. Program collection sites shall be made available within  a  fifteen
    55  mile  radius  for  at  least  seventy  percent  of the population of the
    56  state's residents, and within a fifteen mile radius for at least  eighty

        S. 5027                             8
 
     1  percent  of  the  population of the state's residents within three years
     2  after the start of the program.
     3    2.  Convenience standards shall be evaluated by the department period-
     4  ically and the department may require additional collection locations to
     5  ensure adequate consumer convenience.
     6    3. In those areas that are not included within the collection  conven-
     7  ience  standard  in  subdivision  one  of  this section, the stewardship
     8  organization shall provide collection events at least once per year.
     9    4. With respect to a city having a population of one million or  more,
    10  after consultation with the appropriate local or regional entity respon-
    11  sible  for  the collection of solid and hazardous waste, the stewardship
    12  plan  shall  establish  an  alternative  convenience  standard  that  is
    13  approved by the department.
    14  § 27-3217. Stewardship assessment.
    15    1. One month after the approval of the stewardship plan, each producer
    16  shall include in the price of any carpet sold to retailers and distribu-
    17  tors  in  the  state an amount determined under the approved stewardship
    18  plan. A retailer or distributor shall not deduct this  amount  from  the
    19  purchase price.
    20    2.  Each  producer  shall remit the quarterly assessment amount to the
    21  stewardship organization each quarter.
    22    3. Such an assessment shall be in an amount sufficient  to  cover  the
    23  costs  of  collection,  recycling, and other activities specified in the
    24  stewardship plan as required by this title.
    25    4. The stewardship assessment  amount  shall  take  into  account  the
    26  financial  burden  that a particular carpet material has on the steward-
    27  ship program, and the amount of post-consumer recycled content contained
    28  in a particular carpet, and be differentiated to incentivize the use  of
    29  post-consumer content in carpet and discourage the use of carpet materi-
    30  als that pose challenges for the recycling of discarded carpet.
    31    5.  The  independent  auditor,  as  described in the stewardship plan,
    32  shall verify that the amount added to each unit of carpet will cover the
    33  costs of implementing the stewardship plan.
    34    6. The amounts so collected shall be deposited in a bank chartered  in
    35  New  York and shall be expended only for the purposes of compliance with
    36  this title.
    37  § 27-3219. Administrative fee.
    38    A stewardship organization shall  pay  the  department  the  following
    39  fees,  which  shall  be adequate to cover the department's full costs of
    40  administering and enforcing the stewardship program and shall not exceed
    41  the amount necessary to recover costs  incurred  by  the  department  in
    42  connection  with  the administration and enforcement of the requirements
    43  of this title:
    44    1. a one-time fee of ten thousand dollars for a plan  upon  submission
    45  of an initial stewardship plan; and
    46    2. an annual administrative fee to be established by the department in
    47  regulations to be paid one year after the effective date of this title a
    48  reimbursement  fee  to  the  commissioner for the costs of administering
    49  this title.
    50  § 27-3221. Producer responsibilities.
    51    1. By the first of January of the year following the effective date of
    52  this title, each producer shall,  through  a  stewardship  organization,
    53  implement and finance a statewide stewardship program that:
    54    (a) manages carpet by reducing its waste generation;
    55    (b) promotes carpet recycling and reuse; and

        S. 5027                             9
 
     1    (c)  provides  for negotiation and execution of agreements to collect,
     2  transport, process, and market the producer's discarded carpet for  end-
     3  of-life recycling, reuse, or disposal.
     4    2.  No  producer may sell or offer for sale carpet in the state unless
     5  the producer is part of a stewardship organization  in  compliance  with
     6  the provisions of this title.
     7    3.  The  stewardship program shall be free to the consumer, convenient
     8  and adequate to serve the needs of businesses and residents in all areas
     9  of the state on an ongoing basis.
    10    4. On and after the first of March of the year following the effective
    11  date of this title, no carpet shall be sold or offered for sale  in  the
    12  state  that  is  not  the  subject  of  an  approved stewardship plan as
    13  provided in this title.
    14    5. Each producer shall submit a plan to the department through partic-
    15  ipation in a certified stewardship organization that meets the  require-
    16  ments of section 27-3211 of this title.
    17  § 27-3223. Retailer and distributor responsibilities.
    18    1.  Beginning  two  years  after  the effective date of this title, no
    19  retailer or distributor may sell or offer for sale carpet in  the  state
    20  unless  the  producer  of  such carpet is participating in a stewardship
    21  program.
    22    2. Any retailer or distributor may participate, on a voluntary  basis,
    23  as  a  designated  collection  point  pursuant  to a product stewardship
    24  program and in accordance with applicable law.
    25    3. No retailer or distributor shall be found to  be  in  violation  of
    26  this section if, on the date the carpet was ordered from the producer or
    27  its  agent,  the producer was listed as compliant with this title on the
    28  department's website.
    29  § 27-3225. Requirements for program collectors.
    30    A program collector:
    31    1.  May  not  charge  for  the  acceptance  of  carpet  at  points  of
    32  collection.
    33    2. Shall accept all types and brands of carpet.
    34    3.  Shall  abide  by  the  best management practices for collection of
    35  discarded carpet that are provided by the stewardship organization  with
    36  an approved plan.
    37    4.  Shall submit an annual report to the stewardship organization with
    38  an approved plan.
    39  § 27-3227. Requirement for recycling.
    40    All carpet that is removed  by  installers  and  to  be  discarded  is
    41  required to be transported to a program collection site for recycling.
    42  § 27-3229. Department responsibilities.
    43    1.  Upon stewardship plan approval, the department shall post informa-
    44  tion on its website about the stewardship organization and  its  partic-
    45  ipating  producers that are in compliance with this title, including the
    46  brands of such producers.
    47    2. Beginning the first of January of the year following the  effective
    48  date  of  this  title,  the  department  shall  post  on its website the
    49  location of all collection sites identified to  the  department  by  the
    50  stewardship organization in its plans and annual reports.
    51    3.  The  department  shall  post  on  its website the stewardship plan
    52  approved by the department.
    53    4. The department shall deposit the fees collected  pursuant  to  this
    54  title  into the stewardship organization fund as established pursuant to
    55  section ninety-two-kk of the state finance law.

        S. 5027                            10
 
     1    5. The department shall select one stewardship organization  per  five
     2  year operating period.
     3    6. The department shall meet with the stewardship organization with an
     4  approved  plan  at  least annually to review the functioning of the plan
     5  and identify components of the plan that need improvement.
     6    7. Starting six years after the effective  date  of  this  title,  the
     7  department  shall  impose a penalty of twenty-five cents per pound to be
     8  assessed on the stewardship organization for each pound of carpet beyond
     9  the amount actually recycled that is missing to achieve the goals speci-
    10  fied in the approved stewardship plan. All penalties collected  pursuant
    11  to  this  section  shall be paid over to the commissioner for deposit to
    12  the environmental protection fund established pursuant to section  nine-
    13  ty-two-s of the state finance law.
    14  § 27-3231. Rules and regulations.
    15    The  department  is authorized to promulgate any rules and regulations
    16  necessary to implement this title.
    17  § 27-3233. Annual audit and report.
    18    1. The stewardship organization shall appoint an  independent  auditor
    19  who  shall, at the end of each calendar year in which a stewardship plan
    20  is in effect, review the implementation of such plan and assess  whether
    21  stewardship assessments provided for in such plan are sufficient to fund
    22  the  costs  of  compliance with this title, and whether they exceed such
    23  costs. The results of such audit shall be submitted to the  commissioner
    24  together with the annual report provided for in this section.
    25    2. Starting with year two of the approved plan, the stewardship organ-
    26  ization shall demonstrate to the auditor that a financial reserve exists
    27  that will finance the organization's activities for at least six months.
    28    3.  At  the close of each calendar year in which a stewardship plan is
    29  in effect, the stewardship organization shall submit  a  report  to  the
    30  commissioner  and  stewardship  advisory  board containing the following
    31  information:
    32    (a) a detailed description of the methods used to collect,  transport,
    33  and recycle discarded carpet in the state;
    34    (b)  an  evaluation  of  the convenience of the collection process for
    35  consumers;
    36    (c) the weight of discarded carpet collected, recycled, and  otherwise
    37  disposed of;
    38    (d)  the amount of carpet sold in the state during the reporting peri-
    39  od;
    40    (e) an estimate of the  amount  of  discarded  carpet  that  has  been
    41  collected  for reuse and an evaluation of what the stewardship organiza-
    42  tion can do to increase the amount of discarded carpet that is reused;
    43    (f) a description of the  collection  infrastructure  and  listing  of
    44  collection sites;
    45    (g)  a  description  and  evaluation  of  the  education  and outreach
    46  program, samples of educational  materials  provided  to  consumers  and
    47  carpet installers, and an evaluation of the effectiveness of the materi-
    48  als and methods used to disseminate the materials;
    49    (h)  information  on  progress  made  towards recycling targets and an
    50  explanation of why performance goals were not met, if applicable;
    51    (i) an evaluation of the effectiveness of methods and  processes  used
    52  to achieve performance goals; and
    53    (j) recommendations for any changes to the program.
    54  § 27-3235. Enforcement and penalties.
    55    1.  Except as otherwise provided in this section, any person or entity
    56  that violates any provision of or fails  to  perform  any  duty  imposed

        S. 5027                            11
 
     1  pursuant  to  this  title or any rule or regulation promulgated pursuant
     2  thereto, or any term or condition of any registration or  permit  issued
     3  pursuant thereto, or any final determination or order of the commission-
     4  er  made pursuant to this article or article seventy-one of this chapter
     5  shall be liable for a civil penalty not to exceed five  hundred  dollars
     6  for  each  violation  and  an  additional  penalty of not more than five
     7  hundred dollars for each day during which such violation continues.
     8    2. Any retailer or distributor who violates any provision of or  fails
     9  to  perform any duty imposed pursuant to this title or any rule or regu-
    10  lation promulgated pursuant thereto, or any term  or  condition  of  any
    11  registration  or  permit  issued pursuant thereto, or any final determi-
    12  nation or order of the commissioner made pursuant  to  this  article  or
    13  article  seventy-one of this chapter shall be liable for a civil penalty
    14  not to exceed one thousand dollars for each violation and an  additional
    15  penalty  of not more than one thousand dollars for each day during which
    16  such violation continues.
    17    3. Any producer or stewardship organization who violates any provision
    18  of or fails to perform any duty imposed pursuant to this  title  or  any
    19  rule  or  regulation promulgated pursuant thereto, or any term or condi-
    20  tion of any registration or permit issued pursuant thereto, or any final
    21  determination or order of the commissioner made pursuant to this article
    22  or article seventy-one of this chapter  shall  be  liable  for  a  civil
    23  penalty  not  to  exceed five thousand dollars for each violation and an
    24  additional penalty of not more than one thousand  five  hundred  dollars
    25  for  each  day  during  which  such  violation  continues.  For a second
    26  violation committed within twelve  months  of  a  prior  violation,  the
    27  producer or stewardship organization shall be liable for a civil penalty
    28  not to exceed ten thousand dollars and an additional penalty of not more
    29  than  three  thousand  dollars  for each day during which such violation
    30  continues.  For a third or subsequent violation committed within  twelve
    31  months  of any prior violation, the producer or stewardship organization
    32  shall be liable for a civil penalty    not  to  exceed  twenty  thousand
    33  dollars  and  an additional penalty of six thousand dollars for each day
    34  during which such violation continues.
    35    4. All producers participating in a stewardship organization shall  be
    36  jointly  and  severally  liable  for  any penalties assessed against the
    37  stewardship organization pursuant to this title and article  seventy-one
    38  of this chapter.
    39    5. Civil penalties under this section shall be assessed by the depart-
    40  ment  after  an  opportunity  to  be heard pursuant to the provisions of
    41  section 71-1709 of this chapter, or  by  the  court  in  any  action  or
    42  proceeding  pursuant to section 71-2727 of this chapter, and in addition
    43  thereto, such person or entity may by similar process be  enjoined  from
    44  continuing such violation and any permit, registration or other approval
    45  issued  by  the  department  may  be  revoked  or suspended or a pending
    46  renewal denied.
    47    6. The department and the attorney general are  hereby  authorized  to
    48  enforce  the  provisions of this title and all monies collected shall be
    49  deposited to the credit of the environmental protection fund established
    50  pursuant to section ninety-two-s of the state finance law.
    51  § 27-3237. State preemption.
    52    Jurisdiction in all matters pertaining to carpet recycling is, by this
    53  title, vested exclusively in the state. Any provision of any  local  law
    54  or  ordinance,  or any rule or regulation promulgated thereto, governing
    55  carpet recycling shall, upon  the  effective  date  of  this  title,  be
    56  preempted; provided however, that nothing in this section shall preclude

        S. 5027                            12
 
     1  a  person  from  coordinating, for recycling or reuse, the collection of
     2  carpet.
     3  § 27-3239. Procurement.
     4    State procurement guidelines shall specify a requirement to purchase a
     5  certain amount of carpet with a minimum post-consumer recycled content.
     6  § 27-3241. Anti-competitive conduct.
     7    1.  A  stewardship  organization that organizes the collection, trans-
     8  port, and processing of discarded carpets, in an action to increase  the
     9  recycling  of discarded carpets by a producer, stewardship organization,
    10  or retailer that affects the types and quantities being recycled or  the
    11  cost  and  structure  of  any return program shall not be liable for any
    12  claim of a violation of anti-trust, restraint of trade, or unfair  trade
    13  practice  arising from conduct undertaken in accordance with the program
    14  pursuant to this section, including setting and collection of a steward-
    15  ship charge.
    16    2. Provided however, subdivision one of this section shall  not  apply
    17  to  any  agreement establishing or affecting the output or production of
    18  carpet or any agreement restricting the geographic area or customers  to
    19  which carpet will be sold.
    20  § 27-3243. Severability.
    21    The  provisions  of  this  title shall be severable and if any phrase,
    22  clause, sentence or provision of this title, or the applicability there-
    23  of to any person or circumstance shall be held invalid, the remainder of
    24  this title and the application thereof shall not be affected thereby.
    25    § 3. The state finance law is amended by adding a new section 92-kk to
    26  read as follows:
    27    § 92-kk. Carpet administrative fund. 1. There is hereby established in
    28  the joint custody of the state comptroller and the commissioner of taxa-
    29  tion and finance a special fund to be known as the  "carpet  administra-
    30  tive fund".
    31    2.  The  carpet  administrative  fund  shall  consist  of  all revenue
    32  collected from administrative fees pursuant to title thirty-two of arti-
    33  cle twenty-seven of the environmental  conservation  law  and  any  cost
    34  recoveries,  or other revenues collected pursuant to title thirty-two of
    35  article twenty-seven of the  environmental  conservation  law,  and  any
    36  other monies deposited into the fund pursuant to law.
    37    3.  Moneys  of  the  fund, following appropriation by the legislature,
    38  shall be used for execution of carpet program administration pursuant to
    39  title thirty-two of article twenty-seven of the environmental  conserva-
    40  tion law, and expended for the purposes as set forth in title thirty-two
    41  of article twenty-seven of the environmental conservation law.
    42    § 4. This act shall take effect on the one hundred eightieth day after
    43  it  shall have become a law. Effective immediately, the addition, amend-
    44  ment and/or repeal of any rule or regulation necessary for the implemen-
    45  tation of this act on its effective date are authorized to be  made  and
    46  completed on or before such effective date.
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