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S05027 Summary:

BILL NOS05027A
 
SAME ASNo Same As
 
SPONSORKAVANAGH
 
COSPNSRBIAGGI, MAY
 
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 NOS05027A
 
02/22/2021REFERRED TO ENVIRONMENTAL CONSERVATION
06/01/2021AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
06/01/2021PRINT NUMBER 5027A
06/03/2021COMMITTEE DISCHARGED AND COMMITTED TO RULES
06/03/2021ORDERED TO THIRD READING CAL.1489
06/08/2021PASSED SENATE
06/08/2021DELIVERED TO ASSEMBLY
06/08/2021referred to environmental conservation
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S05027 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5027--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    February 22, 2021
                                       ___________
 
        Introduced by Sens. KAVANAGH, MAY -- read twice and ordered printed, and
          when printed to be committed to the Committee on Environmental Conser-
          vation  --  committee  discharged,  bill amended, ordered reprinted as
          amended and recommitted to said committee
 
        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-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09864-02-1

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

        S. 5027--A                          3

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

        S. 5027--A                          4
 
     1  product retains its original performance characteristics and can be used
     2  for its original purpose.
     3    (v) "Sale" or "sell" means a transfer of title of carpet for consider-
     4  ation,  including  a remote sale conducted through a sales outlet, cata-
     5  log, website, telephone, or through similar electronic means. "Sale"  or
     6  "sell"  includes  a lease through which carpet is provided to a consumer
     7  in the state by a producer, distributor, or retailer.
     8    (w) "Stewardship organization" means a nonprofit  entity  representing
     9  producers  and other designated representatives who are cooperating with
    10  one another to collectively establish and operate a stewardship  program
    11  for the purpose of complying with this title.
    12    (x)  "Stewardship program" means a program financed and implemented by
    13  producers through a stewardship organization that provides for,  but  is
    14  not  limited  to,  the  collection, transportation, reuse, recycling, or
    15  proper management through disposal, or an appropriate combination there-
    16  of, of discarded carpet.
    17  § 27-3203. Labeling, warranty, and design requirements.
    18    1. On and after the effective date  of  this  title,  carpet  sold  or
    19  offered  for  sale  in  the  state shall be accompanied by the following
    20  identifying information:
    21    (a) Name of the producer and contact information;
    22    (b) Carpet material, composition, and type of construction.
    23    2. On and after the effective date of this title, all carpet shall  be
    24  accompanied  by  an  all-inclusive warranty for a period of seven years,
    25  with exceptions for inappropriate use and damage.
    26    3. On and after a date that is two years after the effective  date  of
    27  this  title,  no  carpet  sold  or  offered  for sale in the state shall
    28  contain or be treated with PFAS chemicals to provide a specific  charac-
    29  teristic,  appearance or quality, to perform a specific function, or for
    30  any other purpose.
    31  § 27-3205. Post-consumer content and adhesive requirements.
    32    1. On and after a date that is two years after the effective  date  of
    33  this  title,  all  carpet sold in the state shall be manufactured with a
    34  minimum of ten percent from post-consumer sources; and four years there-
    35  after, a minimum of twenty percent from post-consumer sources; and  five
    36  years thereafter, a minimum of thirty percent from such sources.
    37    2.  On and after a date which is two years after the effective date of
    38  this title, no permanent adhesives may be used in  the  installation  of
    39  carpet.  All  carpet  shall  be  designed  and  installed so as to allow
    40  removal without significant damage to the carpet.
    41  § 27-3207. Carpet stewardship advisory board.
    42    1. There is  hereby  established  within  the  department  the  carpet
    43  stewardship  advisory  board  to  receive  and  review stewardship plans
    44  required by this title and  make  recommendations  to  the  commissioner
    45  regarding their approval.
    46    2.  The  board  shall  be  composed  of  eleven  voting  members to be
    47  appointed by the commissioner. Such members shall include:
    48    (a) one representative of carpet producers;
    49    (b) one representative of carpet retailers;
    50    (c) one representative of carpet recyclers;
    51    (d) one representative of carpet collectors;
    52    (e) two representatives of companies that utilize discarded carpet  to
    53  manufacture a new product;
    54    (f) one representative of a carpet installer association;
    55    (g) one representative from a statewide environmental organization;
    56    (h) one representative from a statewide waste disposal association;

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

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

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

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

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

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

        S. 5027--A                         11
 
     1  § 27-3235. Enforcement and penalties.
     2    1.  Except as otherwise provided in this section, any person or entity
     3  that violates any provision of or fails  to  perform  any  duty  imposed
     4  pursuant  to  this  title or any rule or regulation promulgated pursuant
     5  thereto, or any term or condition of any registration or  permit  issued
     6  pursuant thereto, or any final determination or order of the commission-
     7  er  made pursuant to this article or article seventy-one of this chapter
     8  shall be liable for a civil penalty not to exceed five  hundred  dollars
     9  for  each  violation  and  an  additional  penalty of not more than five
    10  hundred dollars for each day during which such violation continues.
    11    2. Any retailer or distributor who violates any provision of or  fails
    12  to  perform any duty imposed pursuant to this title or any rule or regu-
    13  lation promulgated pursuant thereto, or any term  or  condition  of  any
    14  registration  or  permit  issued pursuant thereto, or any final determi-
    15  nation or order of the commissioner made pursuant  to  this  article  or
    16  article  seventy-one of this chapter shall be liable for a civil penalty
    17  not to exceed one thousand dollars for each violation and an  additional
    18  penalty  of not more than one thousand dollars for each day during which
    19  such violation continues.
    20    3. Any producer or stewardship organization who violates any provision
    21  of or fails to perform any duty imposed pursuant to this  title  or  any
    22  rule  or  regulation promulgated pursuant thereto, or any term or condi-
    23  tion of any registration or permit issued pursuant thereto, or any final
    24  determination or order of the commissioner made pursuant to this article
    25  or article seventy-one of this chapter  shall  be  liable  for  a  civil
    26  penalty  not  to  exceed five thousand dollars for each violation and an
    27  additional penalty of not more than one thousand  five  hundred  dollars
    28  for  each  day  during  which  such  violation  continues.  For a second
    29  violation committed within twelve  months  of  a  prior  violation,  the
    30  producer or stewardship organization shall be liable for a civil penalty
    31  not to exceed ten thousand dollars and an additional penalty of not more
    32  than  three  thousand  dollars  for each day during which such violation
    33  continues.  For a third or subsequent violation committed within  twelve
    34  months  of any prior violation, the producer or stewardship organization
    35  shall be liable for a civil penalty    not  to  exceed  twenty  thousand
    36  dollars  and  an additional penalty of six thousand dollars for each day
    37  during which such violation continues.
    38    4. All producers participating in a stewardship organization shall  be
    39  jointly  and  severally  liable  for  any penalties assessed against the
    40  stewardship organization pursuant to this title and article  seventy-one
    41  of this chapter.
    42    5. Civil penalties under this section shall be assessed by the depart-
    43  ment  after  an  opportunity  to  be heard pursuant to the provisions of
    44  section 71-1709 of this chapter, or  by  the  court  in  any  action  or
    45  proceeding  pursuant to section 71-2727 of this chapter, and in addition
    46  thereto, such person or entity may by similar process be  enjoined  from
    47  continuing such violation and any permit, registration or other approval
    48  issued  by  the  department  may  be  revoked  or suspended or a pending
    49  renewal denied.
    50    6. The department and the attorney general are  hereby  authorized  to
    51  enforce  the  provisions of this title and all monies collected shall be
    52  deposited to the credit of the environmental protection fund established
    53  pursuant to section ninety-two-s of the state finance law.
    54  § 27-3237. State preemption.
    55    Jurisdiction in all matters pertaining to carpet recycling is, by this
    56  title, vested exclusively in the state. Any provision of any  local  law

        S. 5027--A                         12
 
     1  or  ordinance,  or any rule or regulation promulgated thereto, governing
     2  carpet recycling shall, upon  the  effective  date  of  this  title,  be
     3  preempted; provided however, that nothing in this section shall preclude
     4  a  person  from  coordinating, for recycling or reuse, the collection of
     5  carpet.
     6  § 27-3239. Procurement.
     7    State procurement guidelines shall specify a requirement to purchase a
     8  certain amount of carpet with a minimum post-consumer recycled content.
     9  § 27-3241. Anti-competitive conduct.
    10    1. A stewardship organization that organizes  the  collection,  trans-
    11  port,  and processing of discarded carpets, in an action to increase the
    12  recycling of discarded carpets by a producer, stewardship  organization,
    13  or  retailer that affects the types and quantities being recycled or the
    14  cost and structure of any return program shall not  be  liable  for  any
    15  claim  of a violation of anti-trust, restraint of trade, or unfair trade
    16  practice arising from conduct undertaken in accordance with the  program
    17  pursuant to this section, including setting and collection of a steward-
    18  ship charge.
    19    2.  Provided  however, subdivision one of this section shall not apply
    20  to any agreement establishing or affecting the output or  production  of
    21  carpet  or any agreement restricting the geographic area or customers to
    22  which carpet will be sold.
    23  § 27-3243. Severability.
    24    The provisions of this title shall be severable  and  if  any  phrase,
    25  clause, sentence or provision of this title, or the applicability there-
    26  of to any person or circumstance shall be held invalid, the remainder of
    27  this title and the application thereof shall not be affected thereby.
    28    § 3. The state finance law is amended by adding a new section 92-kk to
    29  read as follows:
    30    § 92-kk. Carpet administrative fund. 1. There is hereby established in
    31  the joint custody of the state comptroller and the commissioner of taxa-
    32  tion  and  finance a special fund to be known as the "carpet administra-
    33  tive fund".
    34    2. The  carpet  administrative  fund  shall  consist  of  all  revenue
    35  collected from administrative fees pursuant to title thirty-two of arti-
    36  cle  twenty-seven  of  the  environmental  conservation law and any cost
    37  recoveries, or other revenues collected pursuant to title thirty-two  of
    38  article  twenty-seven  of  the  environmental  conservation law, and any
    39  other monies deposited into the fund pursuant to law.
    40    3. Moneys of the fund, following  appropriation  by  the  legislature,
    41  shall be used for execution of carpet program administration pursuant to
    42  title  thirty-two of article twenty-seven of the environmental conserva-
    43  tion law, and expended for the purposes as set forth in title thirty-two
    44  of article twenty-seven of the environmental conservation law.
    45    § 4. This act shall take effect one year after it shall have become  a
    46  law. Effective immediately, the addition, amendment and/or repeal of any
    47  rule  or  regulation necessary for the implementation of this act on its
    48  effective date are authorized to be made and completed on or before such
    49  effective date.
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