Bill Text: NY S01464 | 2025-2026 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 29-0)
Status: (Introduced) 2025-01-10 - REFERRED TO ENVIRONMENTAL CONSERVATION [S01464 Detail]
Download: New_York-2025-S01464-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1464 2025-2026 Regular Sessions IN SENATE January 10, 2025 ___________ Introduced by Sen. HARCKHAM -- 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, 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 packaging reduction and recycling organ- 9 izations. 10 27-3405. Responsibilities of packaging reduction and recycling 11 organizations. 12 27-3407. Packaging reduction and recycling organization plan. 13 27-3409. Packaging reduction and recycling plan approval. 14 27-3411. Packaging reduction and recycling advisory council. 15 27-3413. Funding mechanism. 16 27-3415. Collection and convenience. 17 27-3417. Producer responsibilities. 18 27-3419. Department responsibilities. 19 27-3421. Statewide packaging reduction, reuse, and recycling 20 needs assessment. 21 27-3423. Education and outreach program. 22 27-3425. Prohibition on certain toxic substances and materials. 23 27-3427. Non-reusable packaging reduction standards. 24 27-3429. Recycled content standards. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04197-01-5S. 1464 2 1 27-3431. Recyclability criteria and packaging recycling require- 2 ments. 3 27-3433. Establishment of the office of recycling inspector 4 general. 5 27-3435. Penalties and enforcement. 6 27-3437. Rules and regulations. 7 27-3439. State preemption. 8 27-3441. Other assistance programs. 9 27-3443. Antitrust protections. 10 27-3445. Severability. 11 § 27-3401. Definitions. 12 As used in this title: 13 1. "Advisory council" or "council" means the packaging reduction and 14 recycling advisory council established under section 27-3411 of this 15 title. 16 2. "Affiliate" means a person who directly, or indirectly through one 17 or more intermediaries, controls, is controlled by, or is under common 18 control with a producer. 19 3. "Beverage container" shall have the same meaning as is set forth in 20 subdivision two of section 27-1003 of this article. 21 4. "Brand" means any mark, word, name, symbol, design, device, or 22 graphical element or a combination thereof, including a registered or 23 unregistered trademark, that identifies and distinguishes a product from 24 other products. 25 5. "Contamination" means: 26 (a) the presence of materials in a given collected material stream 27 that are not on the minimum recyclables list maintained by the depart- 28 ment; or 29 (b) the presence of materials in a given recycled material delivered 30 as a feedstock or commodity that are not specified or accepted as a 31 component of the feedstock or commodity. 32 6. "Control", including the terms "controlling", "controlled by" and 33 "under common control with", means the possession, directly or indirect- 34 ly, of the power to direct or cause the direction of (a) the management 35 and policies of a person, (b) the operation of a person, or (c) substan- 36 tially all of the assets of a person, whether through the ownership of 37 voting securities, by contract, or otherwise. 38 7. "Discarded", "discards", "generated" or "generation" means packag- 39 ing material that has been used for its intended purpose and is no long- 40 er needed by consumers, businesses, institutions, and other users, and 41 can be managed through reuse, recycling, or disposal. 42 8. "Disposal" means the landfilling or incineration of material or 43 products. "Disposal" shall also include energy recovery or energy 44 generation by any means, including, but not limited to, incineration, 45 combustion, pyrolysis, gasification, or solvolysis, waste-to-energy, or 46 waste-to-fuel, or any other chemical conversion process. "Disposal" 47 shall also include the use of materials for landfill cover. 48 9. "Eco-modulation" means structuring program fees in a way to provide 49 producers with financial incentives to reduce waste at the source, 50 increase recyclability of packaging materials, promote reusable packag- 51 ing products, including those that are contained within a reuse and 52 refill system, discourage and decrease contamination, disincentivize 53 designs or practices that increase the costs and adverse environmental 54 impacts of managing the packaging materials, and encourage designs and 55 processes that improve and facilitate development of infrastructure and 56 systems for source reduction, reuse, recycling, and composting.S. 1464 3 1 10. "Disadvantaged community" shall have the same meaning as is set 2 forth in subdivision five of 75-0101 of this chapter. 3 11. "Intentionally added substance" means a substance or material that 4 serves an intended function or technical effect in the product or prod- 5 uct component, including as an intentional breakdown product of an 6 added chemical that also has a functional or technical effect in the 7 product or product component. 8 12. "Local government" means any municipal corporation, governmental 9 subdivision of the state, local government unit, special district, 10 school, local or regional board, commission, or authority authorized by 11 law to plan or provide for waste management services for a specific 12 geographical area. 13 13. "Minimum recyclables list" means a list of those materials that, 14 identified by the department in regulations, must be managed through the 15 packaging reduction and recycling program and by the local governments 16 and service providers that receive funding or reimbursement from the 17 program as approved by the department in accordance with section 27-3419 18 of this title. 19 14. "Packaging material" or "material" means a discrete material or 20 category of material, regardless of recyclability, including but not 21 limited to such material types that are flexible, foam, or rigid materi- 22 al, including paper, cardboard, plastic, glass, metal, or multi-materi- 23 al, that is used for the containment, protection, handling, delivery, 24 transport, distribution, or presentation of another product that is 25 sold, offered for sale, imported, or distributed in the state, including 26 through an internet transaction, and single-use plastic products. Pack- 27 aging material does not include: 28 (a) Medical devices and packaging which are included with products 29 regulated as a drug, medical device, or dietary supplement by the United 30 States food and drug administration under the federal food, drug, and 31 cosmetic act, 21 U.S.C. 321 et seq., Sec. 3.2(E) of 21 U.S. code of 32 federal regulations, or the dietary supplement health and education act; 33 (b) Animal biologics, including vaccines, bacterins, antisera, diag- 34 nostic kits, and other products of biological origin, and other packag- 35 ing materials regulated by the United States department of agriculture 36 under the virus, serum, toxin act, 21 U.S.C. 151-159; 37 (c) Packaging regulated by the Federal Insecticide, Fungicide, and 38 Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other applicable federal 39 law, rule, or regulation; 40 (d) Packaging used to contain hazardous or flammable products regu- 41 lated by the 2012 federal Occupational Safety and Health Administration 42 Hazard Communications Standard, 29 C.F.R. 1910.1200; 43 (e) Plastic packaging containers used to contain and ship products 44 that are classified for transportation as dangerous goods or hazardous 45 materials under 40 C.F.R. 178; 46 (f) Beverage containers subject to a returnable container deposit 47 under title ten of this article; 48 (g) Infant formula as defined in section 321(z) of title 21 of the 49 United States code of federal regulations; 50 (h) Medical foods as defined in section 360ee(b)(3) of title 21 of the 51 United States code of federal regulations; and 52 (i) Architectural paint containers collected and managed pursuant to 53 title twenty of this article. 54 15. "Packaging reduction and recycling organization" or "organization" 55 means a not-for-profit organization registered pursuant to 26 U.S.C. 56 501(c)(3) designated by the department for the initial organization, orS. 1464 4 1 by a group of producers for subsequent organizations, to act as an agent 2 on behalf of each producer to develop and implement a packaging 3 reduction and recycling plan pursuant to section 27-3407 of this title 4 and comply with the organization's responsibilities under section 5 27-3405 of this title. 6 16. "Packaging reduction and recycling plan" or "plan" means a docu- 7 ment in which an organization describes the efforts it will undertake to 8 comply with the requirements of this title. 9 17. "Packaging reduction and recycling program" or "program" means the 10 program implemented by an organization, and overseen by the department, 11 to comply with and implement the provisions of this title. 12 18. "Post-consumer recycled material" means new material produced 13 using material resulting from recycling. 14 19. "Primary packaging" means the packaging in direct contact with the 15 product itself, also sometimes referred to as a consumer unit. 16 20. "Producer" means the following entities, other than local govern- 17 ments, state governments and the federal government, for compliance with 18 the requirements for packaging materials sold, offered for sale, or 19 distributed to consumers in or into this state: 20 (a) For products sold or served to consumers at a physical retail 21 location in this state which are not single use plastics: 22 (i) If the product is sold or served in or with packaging under the 23 product manufacturer's own brand or is sold or served in packaging mate- 24 rials that lack identification of a brand, the producer is the person 25 who manufactures the packaged product; 26 (ii) If there is no person to which subparagraph (i) of this paragraph 27 applies, the producer is the person who is licensed to manufacture and 28 sell or serve the packaged product under the brand or trademark of 29 another manufacturer or person, whether or not the trademark is regis- 30 tered in this state, unless the manufacturer of the packaging materials 31 has agreed to accept responsibility; 32 (iii) If there is no person to which subparagraph (i) or (ii) of this 33 paragraph applies, the producer is the brand owner of the product that 34 is packaged; 35 (iv) If there is no person described in subparagraph (i), (ii) or 36 (iii) of this paragraph within the United States, the producer is the 37 person who is the importer of record for the packaged product into the 38 United States for use in a commercial enterprise that sells, offers for 39 sale, or distributes the product in this state; or 40 (v) If there is no person to which subparagraph (i), (ii), (iii) or 41 (iv) of this paragraph applies, the producer is the person who first 42 distributes the packaged product in or into the state. 43 (b) For single use plastics and for products sold or distributed to 44 consumers in packaging materials in or into this state via remote sale 45 or distribution: 46 (i) The producer of packaging materials used to directly protect or 47 contain the product is the same as the producer defined in paragraph (a) 48 of this subdivision. 49 (ii) For packaging materials used to ship the product to a consumer, 50 the producer is the person who packages the item to be shipped to the 51 consumer. 52 (c) For any single use plastic product: 53 (i) If the single use plastic product is sold under the manufacturer's 54 own brand, the producer is the person who manufactures the single use 55 plastic product;S. 1464 5 1 (ii) If there is no person to which subparagraph (i) of this paragraph 2 applies, the producer is the person who is the owner or licensee of a 3 brand or trademark under which the single use plastic product is used in 4 a commercial enterprise, sold, offered for sale, or distributed in or 5 into this state, whether or not the trademark is registered in this 6 state; 7 (iii) If there is no person to which subparagraph (i) or (ii) of this 8 paragraph applies, the producer is the brand owner of the single use 9 plastic product; 10 (iv) If there is no person described in subparagraph (i), (ii), or 11 (iii) of this paragraph within the United States, the producer is the 12 person who imports the single use plastic product into the United States 13 for use in a commercial enterprise that sells, offers for sale, or 14 distributes the single use plastic product in this state; or 15 (v) If there is no person described in subparagraph (i), (ii), (iii) 16 or (iv) of this paragraph, the producer is the person who first distrib- 17 utes the single use plastic product in or into this state. 18 (d) Where the producer pursuant to paragraph (a) or (c) of this subdi- 19 vision is a business operated wholly or in part as a franchise, the 20 producer is the franchisor, if such franchisor has franchisees that have 21 a commercial presence in the state. 22 21. "Product line" means a group of related products all marketed 23 under a single brand that is sold by the same producer to distinguish 24 products from each other for better usability for customers. 25 22. "Recyclable" means a packaging material that meets the criteria in 26 subdivision one of section 27-3431 of this title. 27 23. "Recycled" means the use of discarded packaging materials or 28 products in the production of a new product or packaging in place of 29 virgin materials. "Recycled" material does not include contaminants, 30 residues, and other process losses or use of materials as landfill 31 cover. 32 24. "Recycling" means to separate, dismantle or process the materials, 33 components or commodities contained in discards for the purpose of 34 preparing the materials, components, or commodities for use or reuse in 35 new products or components. "Recycling" does not include: (a) energy 36 recovery or energy generation by any means, including but not limited 37 to, combustion, incineration, pyrolysis, gasification, solvolysis, or 38 waste-to-fuel; (b) any chemical conversion process; or (c) landfill 39 disposal. 40 25. "Recycling rate" means the percentage of any given material or 41 category of material that is ultimately recycled. The recycling rate for 42 any packaging material shall be calculated as the total weight of pack- 43 aging material that is recycled in a given year divided by the total 44 weight of packaging material generated in that year. 45 26. "Reuse" means the return of packaging material back into the 46 economic stream for use in the same kind of application intended for the 47 original packaging, without effectuating a change in the original compo- 48 sition of the package, the identity of the product, or the components 49 thereof. 50 27. "Reuse and refill system" means a program or set of mechanisms 51 designed to facilitate multiple uses of packaging. Mechanisms may 52 include, but are not limited to, deposits, incentives, curbside 53 collection, collection kiosks, refill stations, dishwashing facilities, 54 and re-distribution networks. 55 28. "Reusable or refillable packaging and containers" means packaging 56 material and containers that are specifically designed and manufacturedS. 1464 6 1 to maintain shape and structure, and be materially durable for repeated 2 sanitizing, washing, and reuse; provided, however, that such packaging 3 and containers must comply with the high reuse and refill rate as set 4 forth in the plan and approved by the department. 5 29. "Single use plastic" means single use plastic products that 6 frequent the residential waste stream or are plastic products that have 7 the effect of disrupting recycling processes, including, but not limited 8 to, single use plastic items such as straws, utensils, cups, plates, and 9 plastic bags. 10 30. "Toxic packaging task force" means the toxic packaging task force 11 established by subdivision two of section 27-3425 of this title. 12 31. "Toxic substances" means a chemical or chemical class identified 13 by a state agency, federal agency, international intergovernmental agen- 14 cy, accredited research university, or other scientific entity deemed 15 authoritative by the department on the basis of credible scientific 16 evidence as being one or more of the following: 17 (a) A chemical or chemical class that is a carcinogen, mutagen, repro- 18 ductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor. 19 (b) A chemical or chemical class that is persistent or bioaccumula- 20 tive. 21 (c) A chemical or chemical class that may harm the normal development 22 of a fetus or child or cause other developmental toxicity in humans or 23 wildlife. 24 (d) A chemical or chemical class that may harm organs or cause other 25 systemic toxicity. 26 (e) A chemical or chemical class that may have adverse air quality 27 impacts, adverse ecological impacts, adverse soil quality impacts, or 28 adverse water quality impacts. 29 (f) A chemical or chemical class that the department has determined 30 has equivalent toxicity to the above criteria. 31 32. "Unit weight" means the weight of packaging material per unit of 32 product sold. 33 § 27-3403. Selection of packaging reduction and recycling organizations. 34 1. Until the date which is ten years after the effective date of this 35 title, there shall be only one packaging reduction organization and all 36 producers shall be required to register with such packaging reduction 37 organization. 38 2. Within six months of the effective date of this title, any not-for- 39 profit seeking to serve as the initial packaging reduction and recycling 40 organization shall submit an application on a form and format prescribed 41 by the department. 42 3. Consistent with the requirements of this title, within nine months 43 of the effective date of this title, the department shall select a not- 44 for-profit organization applicant to act as the initial packaging 45 reduction and recycling organization to operate the packaging reduction 46 and recycling program, and such organization shall then register with 47 the department in the manner prescribed by the department. 48 4. Regulations promulgated pursuant to this title may provide for 49 additional organizations beginning ten years after the effective date of 50 this title if, after ten years and the recommendation by the advisory 51 council pursuant to subdivision ten of section 27-3411 of this title, 52 the department determines that it would be beneficial for there to be 53 additional organizations implementing the program, such regulations 54 shall ensure: 55 (a) consistency and coordination between all organizations; 56 (b) responsibilities carried out are consistent and seamless;S. 1464 7 1 (c) local governments and service providers are reimbursed for recycl- 2 ing services as required under this title; and 3 (d) that packaging material requirements are not reported as gener- 4 ated, supplied or managed by more than one organization. 5 § 27-3405. Responsibilities of packaging reduction and recycling organ- 6 izations. 7 1. Producers shall register with a packaging reduction organization to 8 meet the responsibilities of the program pursuant to the provisions of 9 this section, and each organization shall be responsible for implementa- 10 tion of the program on behalf of producers registered with such organ- 11 ization. 12 2. Each organization involved in the administration of the program 13 shall: 14 (a) Develop a packaging reduction and recycling plan and submit such 15 plan to the advisory council for review and comment, and after any 16 modifications in response to such comments, submit the plan to the 17 commissioner for approval pursuant to section 27-3407 of this title; 18 (b) Collect and compile data from producers as required by section 19 27-3417 of this title; 20 (c) Calculate reimbursement rates through the objective formula 21 approved by the department as contemplated by paragraph (e) of subdivi- 22 sion four of section 27-3407 of this title for the costs associated 23 with this title, the implementation of reduction, refill, and reuse 24 programs, and the collection, transportation and recycling, or other 25 processing of packaging materials; 26 (d) Collect fees due from producers as required by section 27-3413 of 27 this title; 28 (e) Reimburse the department and any other relevant state agencies for 29 the costs associated with conducting the statewide needs assessment 30 required by section 27-3421 of this title, the administration of the 31 program by the department, and the expenses of the advisory council and 32 the toxic packaging task force; 33 (f) Distribute funds to reimburse local governments and private compa- 34 nies for the costs associated with this title, including the implementa- 35 tion of reduction, refill, and reuse programs, and the collection, 36 transportation and recycling, disposal or other processing of packaging 37 materials; 38 (g) Undertake an effective statewide education and public outreach 39 program as required by section 27-3423 of this title; 40 (h) Offer technical support to producers, with an emphasis on support 41 to small businesses, to assist them with compliance with the require- 42 ments of this title, including information about procuring affordable 43 alternatives to non-compliant packaging material and reducing packaging 44 material; and 45 (i) Make recommendations to the department regarding investments in 46 reduction, refill, reuse, collection, transportation, recycling, 47 disposal, and other processing of packaging materials consistent with 48 this title. 49 3. Annually, each organization shall submit a report to the department 50 that, at a minimum, must include the following information: 51 (a) Contact information for the organization; 52 (b) A list of all (i) producers, (ii) brands, and (iii) products that 53 each producer sells, offers for sale, or distributes into the state that 54 are contained, protected, delivered, presented, or distributed in or 55 using packaging material, in each case identified by the Universal Prod- 56 uct Code (UPC) if the product has one;S. 1464 8 1 (c) The total amount, by both weight and number of units, which may be 2 estimated if an exact amount is infeasible to provide, of each type of 3 packaging material used to contain, protect, handle, deliver, transport, 4 distribute, or present products sold, offered for sale, or distributed 5 into the state by each individual producer during the prior calendar 6 year; 7 (d) The total amount, by both weight and number of units, of each 8 material used to contain, protect, handle, deliver, transport, distrib- 9 ute, or present products sold, offered for sale, or distributed into the 10 state by all producers during the prior calendar year; 11 (e) The total amount, by weight, of each material category recycled as 12 a result of activities undertaken by the organization, either directly 13 or through reimbursement or contractual arrangement; 14 (f) A calculation of the recycling rate of each material category 15 which is derived by dividing the amount of each material category recy- 16 cled, as reported in paragraph (e) of this subdivision by the amount of 17 each material category generated, as reported in paragraph (d) of this 18 subdivision; 19 (g) A complete accounting of all payments made to and by the organiza- 20 tion during the prior calendar year; 21 (h) An analysis of the average time it took to reimburse munici- 22 palities during the prior calendar year; 23 (i) A list of producers reasonably believed to be out of compliance 24 with the requirements of this title, and the reason the organization 25 reasonably believes the producer to be out of compliance. Information 26 on non-compliant producers shall be provided to the commissioner and 27 recycling inspector general's office in a timely fashion and for possi- 28 ble enforcement action by the office; 29 (j) A description of the educational and outreach efforts made by the 30 organization in the prior calendar year, and how those efforts were 31 designed to reduce packaging waste, and increase reuse and recycling of 32 packaging materials; 33 (k) An assessment of whether the fee structure adopted by the organ- 34 ization pursuant to section 27-3413 of this title has been effective in 35 incentivizing improvements to the design of packaging material, includ- 36 ing actual reduction of packaging material, increases in reusable and 37 refillable packaging material, recycling rates for packaging materials, 38 and decreases in the amount of packaging material; 39 (l) A description of the reimbursements and expenditures, including 40 the timeliness of such reimbursements, made pursuant to section 27-3413 41 of this title; 42 (m) A recommended minimum recyclables list that meets the requirements 43 of subdivision one of section 27-3431 of this title, based on the needs 44 assessment, information gathered from end markets, including commodity 45 brokers and manufacturers who purchase post-consumer materials for use 46 in manufacturing new products, and available collection and processing 47 infrastructure information; 48 (n) Audited financial statements; 49 (o) The results of the review conducted pursuant to subdivision four 50 of this section; and 51 (p) Any additional information required by the department. 52 4. Each organization shall conduct an annual review process to deter- 53 mine whether packaging materials are recyclable. This review shall be 54 conducted in consultation with representatives of end markets, including 55 recycled commodities brokers and manufacturers who purchase post-consum- 56 er material for use in manufacturing new products, and in consultationS. 1464 9 1 with local governments. For the purposes of calculating producer 2 payments and local government reimbursements in accordance with this 3 title, this annual process shall include a transitional period between 4 the date the determination is finalized and the date it goes into 5 effect. 6 5. Each organization shall conduct public outreach and provide consum- 7 ers with educational and informational materials related to reducing the 8 amount of packaging discarded, recycled, and disposed of in the state as 9 outlined in section 27-3423 of this title. 10 6. Each organization shall operate a program that provides for 11 collection convenience as described in section 27-3415 of this title. 12 7. An organization shall not share, except with the department, the 13 advisory council, and the toxic packaging task force, or as required by 14 law, any proprietary information that is identified by a producer as 15 proprietary information without prior written consent. 16 § 27-3407. Packaging reduction and recycling organization plan. 17 1. Within two years of the effective date of this title, the initial 18 packaging reduction organization shall develop and submit a packaging 19 reduction and recycling plan for implementation of the rules and regu- 20 lations of this title, including ensuring timely disbursements to local 21 governments, to the department for approval. The plan shall be submitted 22 to the advisory council for review pursuant to section 27-3411 of this 23 title prior to the department's approval. Any subsequent or additional 24 organization shall develop and submit a packaging reduction and recycl- 25 ing plan and comply with all the requirements of this section, and have 26 such plan approved pursuant to section 27-3409 of this title. 27 2. The plan shall cover five years and be updated every five years 28 following the approval of the original plan. The department shall have 29 the discretion to require the plan to be reviewed or revised prior to 30 the five-year period pursuant to section 27-3419 of this title. 31 3. Each producer shall begin program implementation within six months 32 after the date the plan for the initial organization is approved and in 33 no event later than three years of the effective date of this title. If 34 no plan is approved by that timeframe, the department, in its 35 discretion, shall either approve a plan with conditions or specify 36 modifications that must be made within forty-five days to conform the 37 submitted plan to the requirements of this section. If a producer is 38 not making good faith efforts to comply with the requirements of this 39 title during such forty-five day period, the producer shall be subject 40 to penalties for noncompliance. 41 4. The submitted plan shall include, but not be limited to: 42 (a) contact information, including the name, e-mail address, physical 43 address, and telephone number of the authorized representative of the 44 producer or producers; 45 (b) the identity of the producer or producers participating in the 46 plan; 47 (c) a comprehensive list of the types and brands of covered materials 48 for which the producer or producers are responsible for; 49 (d) a description of how the organization will implement the program, 50 including the mechanisms and processes for providing assistance to 51 producers to comply with the reporting requirements of this title; 52 (e) in relation to funding the program: 53 (i) a proposed budget outlining the anticipated costs of operating the 54 program and a description of the method by which the organization 55 intends to determine and collect producer payments during the initial 56 startup period;S. 1464 10 1 (ii) a description of the proposed funding mechanism, identified in 2 section 27-3413 of this title, that meets the requirements of this 3 title; 4 (iii) a description of how the organization will maintain a financial 5 reserve sufficient to operate the program in a fiscally prudent and 6 responsible manner; and 7 (iv) a description of how the organization intends to manage and 8 account for all program related funds which pass through the organiza- 9 tion, including how timely reimbursements to local governments will be 10 provided; 11 (f) an objective formula establishing a reimbursement rate, which 12 covers obligations identified in the needs assessment and the minimum 13 recyclables list and takes into account variable regional costs, for 14 participating local governments or private sector service providers; 15 (g) a description of the process for participating local governments 16 or private sector service providers to recoup reasonable costs as estab- 17 lished by the objective formula, from the producer or organization, 18 including, as applicable, any administrative, sorting, collection, 19 transportation, public education, or processing costs, if the organiza- 20 tion uses existing services through a local government or obtains such 21 services from a private sector service provider; 22 (h) at a minimum, the following funding mechanism details shall be 23 provided in the plan: 24 (i) proposed program fees, provided as a table listing the rate paid 25 for each material category, including at a minimum those identified in 26 subdivision three of section 27-3413, which in sum, will generate suffi- 27 cient funding to cover obligations identified in the needs assessment 28 and the requirements of this title; and 29 (ii) proposed program fee adjustments to incorporate eco-modulation 30 factors; 31 (i) a description of the characteristics of each type of packaging 32 material that is relevant to the eco-modulating factors set forth pursu- 33 ant to section 27-3413 of this title; 34 (j) if the local government does not elect to provide service, a 35 description of the process used for contracting with a private sector 36 entity to provide such services and the recoupment of reasonable costs, 37 including procedures to ensure that such private sector entity is not 38 compensated for such services by both the organization and the consumer 39 for the same service, provided, however, that the packaging recycling 40 and reduction organization and any such private sector entity has 41 entered into a labor peace agreement with a bona-fide labor organization 42 that is actively engaged in representing or attempting to represent its 43 employees and its contractors' employees; 44 (k) a description of how the organization will work with existing 45 waste haulers, material recovery facilities, recyclers, and local 46 governments to operate or expand current collection programs to address 47 material collection methods, improve efficiency and yield of processing 48 materials from separate collection streams, and increase packaging 49 reduction and reuse; 50 (l) a description of how the organization will use open, competitive, 51 and fair procurement practices should they directly enter into contrac- 52 tual agreements with service providers, including municipalities and 53 private entities; 54 (m) a description of how a local government will participate, on a 55 voluntary basis, with collection and how existing local government recy- 56 cling processing and collection infrastructure will be used;S. 1464 11 1 (n) a description of how the organization plans to meet the conven- 2 ience requirements set forth in this title; 3 (o) a description of the process for end-of-life management, including 4 recycling and disposal of residuals collected for recycling, using envi- 5 ronmentally sound management practices; 6 (p) a description of how the organization shall provide the option to 7 purchase recycled materials from processors; 8 (q) a description of how producers are complying with the waste 9 reduction, toxics, recycling and post-consumer content requirements of 10 this title, and the process for verifying compliance, including any 11 third party verification services; 12 (r) a description of how: (i) the organization will strategically 13 invest in existing and future reuse and recycling infrastructure and 14 market development in the state in consultation with the department and 15 in a manner not inconsistent with the needs assessment, including, but 16 not limited to, installing or upgrading equipment to improve the sorting 17 of covered materials or mitigating the impacts of materials on other 18 commodities at existing sorting and processing facilities, and capital 19 expenditures for new technology, equipment, and facilities; and (ii) how 20 the process to offer and select opportunities will be conducted in an 21 open, competitive, and fair manner; 22 (s) a description of how the organization's recycling infrastructure 23 and market development investments (i) were informed by the results of 24 the needs assessment, and (ii) will utilize the state's existing infras- 25 tructure; 26 (t) a process to address concerns and questions from customers and 27 residents; 28 (u) a description of the organization's public outreach education 29 program for consumers and other stakeholders; 30 (v) a description of how the comments of stakeholders were considered 31 and addressed in the development of the plan; 32 (w) a detailed description of how the organization consulted with the 33 advisory council, the public, and other stakeholders in the development 34 of the plan prior to its submission to the department, and to what 35 extent the organization specifically incorporated the advisory council's 36 input into the plan; 37 (x) a comprehensive contingency plan demonstrating how the activities 38 in the plan will continue to be carried out by some other entity, if 39 needed, such as an escrow company, until such time as a new plan is 40 submitted and approved by the department: 41 (i) upon the expiration of an approved plan; 42 (ii) in the event that the organization has been notified by the 43 department that it must transfer implementation responsibility for the 44 plan to a different organization; 45 (iii) in the event that the organization notifies the department that 46 it will cease to implement an approved plan; or 47 (iv) in any other event that the organization can no longer carry out 48 plan implementation; and 49 (y) any other additional information required by the department. 50 5. The organization shall also provide the advisory council a reason- 51 able period of time to review and comment upon the draft plan prior to 52 its submission to the department in accordance with section 27-3409 of 53 this title which shall in no event be less than sixty days. The organ- 54 ization shall make an assessment of comments received and shall provide 55 a summary and an analysis of the issues raised by the advisory council 56 and significant changes suggested by any such comments, a statement ofS. 1464 12 1 the reasons why any significant changes were not incorporated into the 2 plan, and a description of any changes made to the plan as a result of 3 such comments. 4 § 27-3409. Packaging reduction and recycling plan approval. 5 1. Before approval or denial of a packaging reduction and recycling 6 plan can be made in accordance with this title, the producer or organ- 7 ization shall submit the plan to the packaging reduction and recycling 8 advisory council. The advisory council shall then make a recommendation 9 regarding approval or disapproval of the plan in accordance with section 10 27-3411 of this title. 11 2. Within sixty days of the advisory council making a recommendation 12 to the department, the department shall make a determination to approve 13 the plan as submitted; approve the plan with conditions; or deny the 14 plan, with reasons for the denial. 15 3. The department may establish additional plan requirements in addi- 16 tion to those identified herein to fulfill the intent of this title; 17 provided, however, that any additional requirements shall be established 18 one year prior to a required submission of a plan. 19 4. The department may rescind the approval of an approved plan at any 20 time for cause and with documented justification. 21 5. The maintenance of a labor peace agreement as contemplated by para- 22 graph (j) of subdivision four of section 27-3407 of this title shall be 23 an ongoing material condition of plan approval. 24 6. For the purposes of this title, "labor peace agreement" means an 25 agreement between an entity and labor organization that, at a minimum, 26 protects the state's proprietary interests by prohibiting labor organ- 27 izations and members from engaging in picketing, work stoppages, 28 boycotts, and any other economic interference. 29 § 27-3411. Packaging reduction and recycling advisory council. 30 1. There is hereby established within the department a packaging 31 reduction and recycling advisory council to receive and review the pack- 32 aging reduction and recycling plans required under section 27-3407 of 33 this title, to make recommendations to the department regarding approval 34 of the plans, to review the annual reports produced by organizations and 35 to make recommendations to the department and organizations as required 36 by this section. 37 2. The advisory council shall convene for the first time no later than 38 one year after the effective date of this title. The advisory council 39 shall be composed of seventeen members. Nine shall be appointed by the 40 commissioner, three shall be appointed by the speaker of the assembly, 41 one shall be appointed by the minority leader of the assembly, three 42 shall be appointed by the temporary president of the senate and one 43 shall be appointed by the minority leader of the senate. The advisory 44 council shall include at least one member from each of the following: 45 (a) a local government association or local government program, 46 including an additional local government representative from cities with 47 a population of one million or more residents; 48 (b) a statewide environmental organization; 49 (c) a representative of a disadvantaged community affected by solid 50 waste infrastructure; 51 (d) an environmental justice organization; 52 (e) a statewide waste disposal or recycling association; 53 (f) a materials recovery facility located within the state; 54 (g) a recycling collection provider; 55 (h) a manufacturer of packaging materials utilizing post-consumer 56 recycled content;S. 1464 13 1 (i) a consumer advocate; 2 (j) a retailer; 3 (k) a public health specialist; 4 (l) a producer and an organization established under this title as 5 non-voting members; 6 (m) a representative of a labor organization representing waste 7 collection employees; and 8 (n) a representative of a labor organization representing municipal 9 solid waste and recycling processing employees. 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 their regular compensation while engaging in the business of the 17 committee, but shall be entitled to receive reimbursement for any actu- 18 al, necessary expenses incurred in the course of performing business for 19 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 sixty 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 sixty 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 the administration of the 51 program, including feedback on the education and outreach program as 52 outlined in 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; andS. 1464 14 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. An organization shall establish such program participation fees for 6 producers through the plan pursuant to section 27-3407 of this title, 7 which shall be sufficient to cover all costs of the program, including 8 administration, enforcement, the statewide needs assessment, and all 9 other state costs of the program and organizations' costs of the 10 program, including but not limited to those costs described in subdivi- 11 sion four of this section. 12 2. An organization shall structure program fees to provide producers 13 with financial incentives through eco-modulation, to reward waste and 14 source reduction and recycling compatibility innovations and practices, 15 and to disincentivize designs or practices that increase costs of manag- 16 ing the products or materials that contain toxic substances. 17 3. An organization may adjust fees to be paid by participating 18 producers based on factors that affect system costs. At a minimum, fees 19 shall be variable based on: 20 (a) The category of packaging material, provided that the list of such 21 packaging material categories for which there is a specific producer fee 22 shall include, at a minimum, the following material types: 23 (i) Paper; 24 (ii) Cardboard; 25 (iii) Corrugated cardboard; 26 (iv) Wood; 27 (v) Glass; 28 (vi) Polyethylene terephthalate (PET); 29 (vii) High density polyethylene (HDPE); 30 (viii) Expanded polystyrene (EPS); 31 (ix) Polystyrene; 32 (x) Bio-plastics; 33 (xi) Generic plastics; 34 (xii) Plastic film; 35 (xiii) Other plastics; 36 (xiv) Ferrous metals; 37 (xv) Aluminum; 38 (xvi) Tinplate; 39 (xvii) Generic metals; and 40 (xviii) Mixed materials including laminates and packaging containing 41 more than one of the above materials; 42 (b) The quantity of each packaging material type, by weight, that the 43 producer sells, offers for sale, or distributes in the state; 44 (c) Eco-modulation, including as described in subdivision two of this 45 section. 46 4. Producer fees shall be designed to cover, at minimum, the total 47 costs associated with: 48 (a) Providing curbside collection or other form of residential service 49 that is, at minimum, as convenient as is detailed in section 27-3415 of 50 this title; 51 (b) The department's and other state agencies' administration and 52 enforcement of this title; 53 (c) Organizations' administration of this title; 54 (d) The cost associated with the development of the needs assessment, 55 as required in section 27-3421 of this title;S. 1464 15 1 (e) The costs associated with the advisory council and the toxic pack- 2 aging task force; 3 (f) The costs associated with establishing packaging reduction and 4 reuse infrastructure; 5 (g) The cost of reimbursement for, or providing, recycling services, 6 including the collection cost, processing cost for each recyclable mate- 7 rial, cost of handling non-recyclable material types collected as part 8 of a recycling operation, transportation cost of recycling for each 9 material type; and 10 (h) Any other factors determined by the department. 11 5. An organization may adjust producer fees based on factors that 12 affect system costs provided that the specific parameters of such 13 adjustments and fees are included in the plan approved by the depart- 14 ment. At a minimum, fees shall be variable based on: 15 (a) costs to provide curbside collection or another form of residen- 16 tial service that is, at minimum, as convenient as curbside collection 17 or as convenient as the previous recycling collection plan in the 18 particular jurisdiction should recycling collection not be provided; 19 (b) costs to process packaging materials for acceptance by secondary 20 material markets; 21 (c) whether the packaging material would typically be readily-recycla- 22 ble, except that as a consequence of the packaging design, the packaging 23 product has the effect of disrupting recycling processes or the product 24 includes labels, inks, and adhesives containing heavy metals or other 25 toxic substances that would result in contamination of the recycling 26 process; 27 (d) whether the packaging material is specifically designed to be 28 reusable or refillable and has high reuse or refill rate; and 29 (e) the commodity value of a packaging material, as defined by 30 published indices. 31 6. The fees shall be adjusted, or the producers may be provided a 32 credit, as detailed in the plan, based upon the percentage of post-con- 33 sumer recycled material content and such percentage of post-consumer 34 recycled content shall be verified by the organization or through an 35 independent third party approved to perform verification services to 36 ensure that such percentage exceeds the minimum requirements in the 37 packaging, as long as the recycled content does not disrupt the poten- 38 tial for future recycling. 39 7. In addition to the annual schedule of fees approved in the plan, an 40 organization fee schedule may include a special assessment on specific 41 categories of packaging materials, identified in the plan, if the nature 42 of the packaging material imposes unusual costs in collection or proc- 43 essing or requires special actions to address effective access to recy- 44 cling or successful processing in local government recycling facilities. 45 8. The fees shall be structured to provide producers with financial 46 incentives to encourage: 47 (a) A reduction in total packaging as measured by unit weight used by 48 producers, and discarded by consumers, businesses, institutions, and 49 other users. Weight reductions shall not be achieved by substituting 50 plastic for other materials types; 51 (b) An increase in the proportion of a producer's total packaging that 52 is managed within a reuse and refill system; 53 (c) An increase in the proportion of a producer's total packaging that 54 is deemed recyclable as determined by an annual review process as 55 described in section 27-3405 of this title;S. 1464 16 1 (d) An increase in the proportion of a producer's total packaging that 2 is ultimately recycled; 3 (e) A reduction in toxic components in packaging materials; and 4 (f) A reduction in litter from packaging materials. 5 9. An organization shall be responsible for calculating and disbursing 6 funding at a reasonable rate developed through an objective formula 7 approved by the department, and such reasonable rate may be varied based 8 on population density rates, for municipal services utilized by an 9 organization if the municipality elects to be compensated by the organ- 10 ization in the collection, recovery, recycling, and processing of 11 covered materials and products, whether such services are provided 12 directly by the municipality or through a contracted service provider. 13 10. If a municipality does not elect to provide service, the organiza- 14 tion shall be responsible for contracting with a private entity for 15 services and shall be responsible for calculating and disbursing funding 16 at a reasonable recycling program rate for collection, recycling, recov- 17 ery, and processing services provided by the private sector entity 18 contracted to provide such service. Any such contract shall be subject 19 to a labor peace agreement as contemplated by paragraph (j) of subdivi- 20 sion four of section 27-3407 of this title. 21 11. To facilitate an organization's cost reimbursement determination, 22 participating municipalities and private sector haulers contracting with 23 the organization shall report data related to their costs and the value 24 of materials to the organization. Cost calculations shall take into 25 consideration the amount received from the sale of source-separated 26 materials. 27 12. There shall be no fee assessed on reusable or refillable packaging 28 and containers contained within a reuse or refill system. 29 13. Any funds directly collected pursuant to this title shall not be 30 used to carry out lobbying activities on behalf of an organization. 31 14. No retailer may charge a point-of-sale or other fee to consumers 32 to facilitate a producer or organization to recoup the costs associated 33 with meeting the obligations under this title. 34 15. Nothing in this title shall require a local government to partic- 35 ipate in the program, provided that a local government must give at 36 least three months' notice of its intent to cease participation. 37 § 27-3415. Collection and convenience. 38 1. The program shall provide for widespread, convenient, and equitable 39 access to collection opportunities for recyclable packaging materials at 40 no additional cost. Such opportunities, including curbside recycling, 41 shall be provided to all residents of the state in a manner that is as 42 convenient as the collection of solid waste as provided to the consumer 43 as of the effective date of this title. Organizations shall ensure 44 services continue for curbside recycling programs as of the effective 45 date of this title, either directly or through a contract to provide 46 services, and that such services are continued through such producer or 47 organization's plan pursuant to section 27-3405 of this title. 48 2. Participation in the program shall not restrict a jurisdiction's 49 consumer's ability to contract directly with third parties to obtain 50 recycling collection services if consumers have the option to enter into 51 such contracts as of the effective date of this title, as long as the 52 consumer still voluntarily chooses to contract directly with the third 53 party. The local government shall not provide disbursement to such 54 third party should the local government provide widespread recycling 55 services either directly or through a contract that is different from 56 the contract with such third party, and there shall be procedures inS. 1464 17 1 place to ensure that no service provider is compensated more than once 2 for the same service. 3 3. Organizations may rely on a range of means to collect various cate- 4 gories of packaging materials so long as collection options include 5 curbside recycling collection services provided by municipal programs, 6 municipal contracted programs, solid waste collection companies, or 7 other approved entities as identified by the department if at a minimum: 8 (a) the category of packaging materials is on the minimum recyclables 9 list, is suitable for residential curbside recycling collection and can 10 be effectively sorted by the facilities receiving the curbside collected 11 material; 12 (b) the category of packaging materials is not handled through a 13 deposit and return scheme or buy back system that relies on a collection 14 system other than curbside or multi-family collection; 15 (c) the provider of the curbside recycling service agrees to the 16 organization's service provider costs arrangement; and 17 (d) any private contract for such services is subject to a labor peace 18 agreement as contemplated by paragraph (j) of subdivision four of 19 section 27-3407. 20 4. All local government or private recycling service providers shall 21 provide for the collection and recycling of all packaging materials 22 contained on the minimum recyclables lists, based on geographic regions, 23 in order to be eligible for reimbursement; provided, however, nothing 24 shall penalize a local government or private recycling service for 25 recovering and recycling materials that are generated in the local 26 government or geographic region that are not included on the minimum 27 recyclables lists as long as it can be demonstrated that such materials 28 have a consistent regional market for purchase as determined by the 29 department in consultation with the producer or organization. 30 5. Reimbursement shall cover collection, processing, transportation, 31 and recycling and disposal of all packaging materials so long as the 32 program includes at least the minimum recyclables list. The department 33 may grant an exception to the requirements in this subdivision upon a 34 written showing by the local government or private recycling service 35 that compliance with the requirements is not practicable for a specific 36 identified product or material and if the department finds it is in the 37 best interest of the intent of this title to grant an exception; 38 provided, however, that any such exception granted by the department 39 shall not exceed twelve months. 40 6. Program funds shall be used for investment in collection systems, 41 transportation systems, reuse systems, washing systems, redistribution 42 systems, technology for tracking and data collection, capital expendi- 43 tures on new and emerging technology that is focused on reusable and 44 refillable packaging, as well as equipment, and facilities, and other 45 projects determined by the department to facilitate the goals and 46 objectives of this title. 47 7. Nothing in this title shall be deemed to automatically void or 48 nullify any collection contracts in effect as of the effective date of 49 this title. 50 § 27-3417. Producer responsibilities. 51 1. Beginning with the required program implementation date as contem- 52 plated by subdivision three of section 27-3407 of this title and in no 53 event later than three years after the effective date of this title, a 54 producer shall not sell, offer for sale, or distribute into the state a 55 product contained, protected, delivered, presented, or distributed in 56 packaging unless the producer is registered with an organization and inS. 1464 18 1 full compliance with all requirements of this title. Producers shall 2 register with the initial organization within eighteen months of the 3 effective date of this title; provided, however, that any person who 4 becomes a producer thereafter shall register with an organization and 5 begin program implementation within six months thereof or be subject to 6 penalties for noncompliance. 7 2. Either when the producer registers, or within eighteen months of 8 the effective date of this title, whichever is later and annually there- 9 after, each producer shall provide the organization with the following 10 information: 11 (a) Contact information, including the name, e-mail address, physical 12 address, and telephone number of the authorized representative of the 13 producer; 14 (b) A comprehensive list of the categories and brands of packaging 15 materials for which the producer or producers are responsible; 16 (c) The total amount, in units and weight, of each category of packag- 17 ing material sold, offered for sale, or distributed for sale into the 18 state by the producer in the prior calendar year; and 19 (d) Any other information required by the department. 20 3. Producers are responsible for payment of fees, through an organiza- 21 tion, based on the quantity, category of packaging material used in the 22 state, and other factors. 23 4. Producers are responsible for meeting the toxic substances, packag- 24 ing material reduction, post-consumer content, and recycling standards 25 under this title. 26 5. A producer shall electronically submit annually, to both the 27 department and the packaging reduction and recycling organization, a 28 written declaration signed by its chief executive officer, verifying the 29 producer's compliance with: 30 (a) The packaging material reduction requirements of this title; 31 (b) The packaging material recycled content requirements of this 32 title; 33 (c) The packaging material recycling requirements of this title; 34 (d) The toxic substance reduction requirements of this title; 35 (e) Their obligations to pay fees to the organization pursuant to 36 section 27-3413 of this title and subdivision three of this section; and 37 (f) Any reimbursement obligations they have to local governments or 38 third party service providers in connection with this title. 39 6. A producer is exempt from the requirements and prohibitions of this 40 title in a calendar year in which: 41 (a) The producer and its affiliates collectively realized less than 42 five million dollars in total gross revenue during the prior calendar 43 year; 44 (b) The producer and its affiliates collectively sold, offered for 45 sale, or distributed for sale products contained, protected, delivered, 46 presented, or distributed in or using less than two tons of packaging 47 material in total during the prior calendar year; 48 (c) The producer is a not-for-profit corporation that is primarily 49 engaged in preparing and delivering medically tailored meals and 50 medical nutrition therapy. As used in this paragraph, "medically 51 tailored meals and medical nutrition therapy" means nutritional assess- 52 ment, nutritional therapy, and nutritional counseling provided by a 53 certified dietician or certified nutritionist, and the provision of any 54 food indicated by such assessment, therapy or counseling and ordered by 55 a health care professional acting within their lawful scope of practice 56 under title eight of the education law, for the purpose of treating oneS. 1464 19 1 or more chronic conditions for an individual who is limited in their 2 activities of daily living; or 3 (d) is an agricultural cooperative with less than fifty employees 4 engaged in the production of dairy products. 5 7. A producer claiming an exemption pursuant to subdivision six of 6 this section shall provide the department with sufficient information to 7 demonstrate that the claimant is eligible for an exemption. 8 8. Nothing in this title shall impair a producer's eligibility for tax 9 credits or other business incentives for which they would otherwise 10 qualify. 11 § 27-3419. Department responsibilities. 12 1. Within eighteen months of the effective date of this title, the 13 department shall, in accordance with section 27-3435 of this title, 14 promulgate all rules and regulations necessary to implement, administer, 15 and enforce the provisions of this title, including setting standards 16 for consumer protection when the organization directly disburses funds 17 to third parties. These rules and regulations shall include prohibiting 18 certain toxics in packaging pursuant to section 27-3425 of this title 19 as of the dates set forth therein. 20 2. Beginning two years after the required program implementation date 21 as contemplated by subdivision three of section 27-3407 of this title 22 and in no event later than three years after the effective date of this 23 title, and annually thereafter, the department shall utilize the infor- 24 mation obtained pursuant to paragraphs (b), (c), (d), (e), (f) and (g) 25 of subdivision three of section 27-3405 of this title, and any other 26 information available to the department, with input from the advisory 27 council, to produce an annual report to be shared with the legislature 28 and posted publicly on the department's website. 29 3. The department shall establish and maintain the minimum recyclables 30 list by regulation. The department shall update this list annually, 31 after the initial organization's plan is first approved, considering 32 recommendations from organizations and the advisory council. The minimum 33 recyclables list may vary by geographic region depending on regional 34 markets and regional collection and processing infrastructure, but shall 35 in all cases meet the requirements of subdivision one of section 27-3431 36 of this title. 37 4. In the event that the department determines that the organization 38 no longer meets the requirements of this title, or fails to implement 39 and administer the requirements of this title in a manner that effectu- 40 ates the purposes of this title, after reasonable opportunity to cure 41 such deficiencies, the department shall revoke its approval of such 42 organization and, subject to the contingency plan contemplated by para- 43 graph (w) of subdivision four of section 27-3407 of this title, shall 44 select a new organization pursuant to section 27-3403 of this title. 45 § 27-3421. Statewide packaging reduction, reuse, and recycling needs 46 assessment. 47 1. No later than one year after the effective date of this title and 48 every five years thereafter, the department shall complete or cause to 49 be completed a statewide packaging material reduction, reuse, and recy- 50 cling needs assessment to determine the current state of packaging mate- 51 rial reuse, recycling, and disposal, identify barriers and opportunities 52 to reduce the amount of packaging material discarded and disposed of, 53 and increase the reusability and recyclability of packaging material. 54 2. The needs assessment, at a minimum, shall cover the following: 55 (a) The current recycling rate for each type of packaging material;S. 1464 20 1 (b) The amount, by weight and material type, of packaging material 2 recycled at each recycling facility that accepts discarded packaging 3 material generated in the state; 4 (c) The processing capacity, market conditions, and opportunities in 5 the state and regionally for recyclable materials generally, and packag- 6 ing material categories specifically; 7 (d) The net cost of end-of-life management of discarded packaging 8 material in the state, including the cost associated with the 9 collection, transportation, sortation, recycling, littering, landfill- 10 ing, or incineration of discarded packaging; 11 (e) The availability of opportunities in the recycling and reuse 12 system for minority- and women-owned businesses; 13 (f) Current barriers affecting recycling access and availability in 14 the state; 15 (g) Current barriers to the marketability of recyclable materials 16 generated in the state; 17 (h) Opportunities for the creation of packaging material reuse and 18 refill programs in the state; 19 (i) Opportunities for the improvement of packaging material recycling 20 in the state, including the development of end markets for recycled 21 packaging materials; 22 (j) Current barriers affecting the creation and implementation of 23 packaging material reuse and refill programs; 24 (k) Consumer education needs in the state with respect to packaging 25 material waste reduction, recycling, and reducing contamination in recy- 26 cling, and reuse and refill systems for packaging material; and 27 (l) Landfill capacity. 28 3. The cost incurred by the department associated with conducting the 29 needs assessment shall be paid for by the organization. 30 4. The department shall report the results of the needs assessment to 31 the public, the state legislature, and the governor, and shall post the 32 results on its website. 33 § 27-3423. Education and outreach program. 34 1. The organization shall develop and implement an educational 35 outreach program designed to educate the public about waste reduction 36 and improve the effectiveness of local government recycling and, at a 37 minimum, include: 38 (a) Educational and informational materials for consumers related to 39 reducing the amount of packaging discarded, recycled, and disposed of in 40 the state; 41 (b) A description of the environmental, social, economic, and environ- 42 mental justice impacts associated with improper disposal of packaging 43 material and failure to reuse or recycle packaging materials; 44 (c) Information on the proper end-of-life management of packaging 45 material, including reuse, recycling, composting, and disposal; 46 (d) The location and availability of curbside collection and addi- 47 tional drop-off collection opportunities for packaging material, includ- 48 ing deposit and take-back programs; 49 (e) How to prevent litter of packaging material in the process of 50 collection; 51 (f) Recycling instructions that are consistent statewide, except as 52 necessary to take into account differences among local laws and process- 53 ing capabilities, easy to understand, and easily accessible; and 54 (g) Any other information required by the department. 55 2. The educational outreach program shall incorporate, at a minimum, 56 electronic, print, web-based and social media elements, including forS. 1464 21 1 use by local governments at their discretion, as well as including a 2 variety of outreach and education tools. Such educational outreach 3 programs shall ensure materials are widely accessible and available in 4 multiple languages. 5 3. The educational outreach program shall be coordinated with and 6 assist local government programs, local government contracted programs, 7 solid waste collection companies, and other entities providing services. 8 4. The educational outreach program shall be developed to ensure 9 disadvantaged communities receive targeted outreach and support. 10 5. The educational outreach program shall include a plan to work with 11 producers to label or mark packaging material, in accordance with 12 reasonable labeling standards, with information to assist consumers in 13 responsibly managing and recycling covered products. 14 6. The organization shall consult with local governments on the devel- 15 opment of educational materials and may coordinate with local govern- 16 ments on outreach and communication. 17 7. The organization shall be authorized to provide producers and 18 retailers with educational materials related to the responsible 19 reduction, reuse, recycling, or disposal of discarded packaging materi- 20 al. The educational and informational materials provided to the retailer 21 under this subdivision may include, but need not be limited to, printed 22 materials, signage and templates of materials that can be reproduced by 23 retailers and provided thereby to consumers at the time of a product's 24 purchase, and advertising materials that promote and encourage consumers 25 to properly reuse, recycle, or dispose of packaging material. 26 8. The organization shall make information on relevant tax credits and 27 other business incentives available to producers. 28 § 27-3425. Prohibition on certain toxic substances and materials. 29 1. Notwithstanding title two of article thirty-seven of this chapter 30 to the contrary, (a) Beginning three years after the promulgation of 31 rules and regulations pursuant to this title, no person or entity shall 32 sell, offer for sale, or distribute into the state any packaging 33 containing any of the following toxic substances or materials as an 34 intentionally added substance: 35 (i) Ortho-phthalates; 36 (ii) Bisphenols; 37 (iii) Per- and polyfluoroalkyl substances (PFAS); 38 (iv) Heavy metals and compounds, including lead, hexavalent chromium, 39 cadmium, and mercury, but excluding copper phthalocyanine (chemical 40 abstracts service registry number 147-14-8); 41 (v) Benzophenone and its derivatives; 42 (vi) Halogenated flame retardants; 43 (vii) Perchlorate; 44 (viii) Formaldehyde; 45 (ix) Toluene; 46 (x) Antimony and compounds; 47 (xi) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol); 48 (xii) Polyvinyl chloride, including polyvinylidene chloride; 49 (xiii) Polystyrene but excluding EPS (expanded polystyrene); or 50 (xiv) Polycarbonate. 51 (b) Beginning five years after the promulgation of rules and regu- 52 lations pursuant to this title, no person or entity shall sell, offer 53 for sale, or distribute into the state any packaging containing any of 54 the toxic substances listed in paragraph (a) of this subdivision, even 55 if they are not an intentionally added substance, at or above a level 56 that the department shall establish by regulation that is the lowestS. 1464 22 1 level that can feasibly be achieved; provided, however, that the depart- 2 ment shall review such level every five years to determine whether it 3 should be lowered. 4 2. (a) There is hereby established within the department a toxic pack- 5 aging task force to review the toxicity in packaging in the state, and 6 to recommend to the department the designation of additional toxic 7 substances which shall be subject to the same prohibition as those 8 substances listed in subdivision one of this section. 9 (b) The toxic packaging task force shall have nine members, one of 10 whom shall be the commissioner or their designee who shall be chair, and 11 one of whom shall be the commissioner of health or their designee. The 12 other members shall include: (i) a representative of the packaging 13 industry; (ii) a representative of an environmental justice organiza- 14 tion; (iii) a representative from the chemical industry; (iv) a profes- 15 sional or academic expert in toxicology; and (v) a professional or 16 academic expert in public health risk assessment; all of whom shall be 17 appointed by the commissioner. The remaining members shall be persons 18 with significant professional or academic expertise in maternal or child 19 health, epidemiology, chemical safety or public health policy, one of 20 whom shall be appointed by the temporary president of the senate and one 21 of whom shall be appointed by the speaker of the assembly. Appointments 22 to the toxic packaging task force are term limited to five consecutive 23 years of service. 24 (c) The task force shall meet at least twice per year to review and 25 recommend to the department whether (i) there are additional toxic 26 substances or classes of toxic substances for use in packaging that 27 should no longer be sold, offered for sale, distributed for sale, or 28 distributed for such use in this state, and (ii) there should be 29 substance or material-specific exceptions to the prohibitions provided 30 for in subdivision one of this section, provided such recommendation may 31 be made only upon a demonstration of substantial and convincing evidence 32 that such substance or material does not meet the criteria for classi- 33 fication as a toxic substance or material. 34 3. (a) Within one hundred eighty days of the toxic packaging task 35 force recommending the designation of an additional toxic substance, the 36 department shall adopt rules and regulations to designate such substance 37 as a toxic substance under this section and prohibit the use of such 38 toxic substance in packaging in the same manner as those toxic 39 substances listed in subdivision one of this section, with an effective 40 date no later than two years after the date of such recommendation, 41 unless the department determines that such two-year period would be 42 unduly burdensome, in which case the department shall establish an 43 effective date for such prohibition no later than four years after the 44 date of such recommendation. 45 (b) The department may evaluate recommendations from the toxic packag- 46 ing task force for exceptions as provided in paragraph (c) of subdivi- 47 sion two of this section, and upon a demonstration of substantial and 48 convincing evidence that such substance or material does not meet the 49 criteria for classification as a toxic substance or material, may adopt 50 rules and regulations to except such substance as a toxic substance or 51 material. 52 4. Any producer that violates this section, or any rules or regu- 53 lations promulgated pursuant to this section, shall be subject to a fine 54 for each violation not to exceed ten thousand dollars per violation. For 55 the purposes of this section, each product line that is sold, offered 56 for sale, or distributed to consumers, via retail commerce, in theS. 1464 23 1 state, including through an internet transaction shall be considered a 2 separate violation. 3 § 27-3427. Non-reusable packaging reduction standards. 4 1. Each individual producer is required to meet the following packag- 5 ing reduction requirements: 6 (a) Beginning three years after the program implementation date set 7 forth in subdivision three of section 27-3407 or January first of the 8 third year following the date on which a producer first registers with 9 an organization if a producer registers after the program implementation 10 date, such producer shall reduce the amount of primary plastic packaging 11 material, and the amount of all other packaging material, in each case, 12 by ten percent either on a company-wide basis or by unit weight, for all 13 packaging materials used to contain, protect, deliver, present, or 14 distribute the products they sell, offer for sale, or distribute for 15 sale in the state. 16 (b) Beginning five years after the program implementation date set 17 forth in subdivision three of section 27-3407 or January first of the 18 fifth year following the date on which a producer first registers with 19 an organization if a producer registers after the program implementation 20 date, such producer shall reduce the amount of primary plastic packaging 21 material, and the amount of all other packaging material, in each case, 22 by fifteen percent either on a company-wide basis or by unit weight, for 23 all packaging materials used to contain, protect, deliver, present, or 24 distribute the products they sell, offer for sale, or distribute for 25 sale in the state. 26 (c) Beginning eight years after the program implementation date set 27 forth in subdivision three of section 27-3407 or January first of the 28 eighth year following the date on which a producer first registers with 29 an organization if a producer registers after the program implementation 30 date, such producer shall reduce the amount of primary plastic packaging 31 material, and the amount of all other packaging material, for all mate- 32 rials used to contain, protect, deliver, present, or distribute the 33 products they sell, offer for sale, or distribute for sale into the 34 state, in each case, by twenty percent either on a company-wide basis or 35 by unit weight, for all packaging materials used to contain, protect, 36 deliver, present, or distribute the products they sell, offer for sale, 37 or distribute for sale in the state. 38 (d) Beginning ten years after the program implementation date set 39 forth in subdivision three of section 27-3407 or January first of the 40 tenth year following the date on which a producer first registers with 41 an organization if a producer registers after the program implementation 42 date, such producer shall reduce the amount of primary plastic packaging 43 material, and the amount of all other packaging material, for all mate- 44 rials used to contain, protect, deliver, present, or distribute the 45 products they sell, offer for sale, or distribute for sale into the 46 state, in each case, by twenty-five percent either on a company-wide 47 basis or by unit weight for all packaging materials used to contain, 48 protect, deliver, present, or distribute the products they sell, offer 49 for sale, or distribute for sale in the state. 50 (e) Beginning twelve years after the program implementation date set 51 forth in subdivision three of section 27-3407 or January first of the 52 twelfth year following the date on which a producer first registers with 53 an organization if a producer registers after the program implementation 54 date, such producer shall reduce the amount of primary plastic packaging 55 material, and the amount of all other packaging material, for all mate- 56 rials used to contain, protect, deliver, present, or distribute theS. 1464 24 1 products they sell, offer for sale, or distribute for sale into the 2 state, in each case, by thirty percent either on a company-wide basis or 3 by unit weight, for all packaging materials used to contain, protect, 4 deliver, present, or distribute the products they sell, offer for sale, 5 or distribute for sale in the state. 6 2. The reductions required by this section shall be measured against 7 the packaging material the producer used during the first year such 8 producer registered with an organization. 9 3. These reductions shall be achieved by eliminating single-use pack- 10 aging material, including secondary or tertiary packaging material, 11 elimination of packaging material components, reduction of packaging 12 material components, or by transitioning to reusable or refillable pack- 13 aging systems. Reductions may also be achieved by substituting plastic 14 packaging material with non-plastic packaging material. However, the 15 reductions required by this section shall not be achieved by substitut- 16 ing non-plastic materials with plastic materials or substituting recycl- 17 able materials with non-recyclable materials. 18 4. In the case of a producer for which, as of the effective date of 19 this title or upon entry into the market after such effective date, a 20 portion of its packaging is reusable and contained within a reuse and 21 refill system, such producer may apply to the department for a waiver 22 from the packaging reduction requirements set forth in subdivision one 23 of this section with respect to that percentage of its packaging, by 24 unit weight, which is contained within a reuse and refill system. 25 5. In the case of a producer that demonstrates in a manner satisfac- 26 tory to the department that, for the period beginning ten years prior to 27 the effective date of this title and ending on the date which is two 28 years after the effective date of this title, the producer reduced the 29 amount of packaging used to contain, protect, deliver, present, or 30 distribute the products the producer sells, offers for sale, or distrib- 31 utes for sale into the state, such producer may apply to the department 32 for a waiver from the packaging reduction requirements of this section 33 with respect to that percentage of its packaging, by unit weight, which 34 was reduced during such twelve-year period. 35 6. A producer may apply to the department for a waiver from the 36 reduction requirements of this section if compliance is impossible due 37 to federal law or otherwise conflicts with federal law. Such waiver 38 must be applied for annually. In such application the producer shall 39 provide the department and the advisory council with sufficient informa- 40 tion, in the determination of the department in consultation with the 41 advisory council, to make a determination on such application, including 42 proof that the producer has taken all feasible actions to achieve the 43 reductions required by this section. 44 7. Nothing in this section shall preclude a producer from going beyond 45 the reduction standards in subdivision one of this section. 46 § 27-3429. Recycled content standards. 47 1. Each individual producer shall meet the recycling content targets 48 contained in this section. 49 2. Beginning two years after promulgation of rules and regulations 50 pursuant to this title: 51 (a) all glass containers manufactured in the state used by the produc- 52 er shall contain, on average, at least thirty-five percent post-consumer 53 recycled content; 54 (b) all paper carryout bags sold, offered for sale, or given away free 55 in the state by a producer shall contain, on average, at least forty 56 percent post-consumer recycled content; except that a paper carryout bagS. 1464 25 1 that holds eight pounds or less shall only be required to contain, on 2 average, at least twenty percent post-consumer recycled content; and 3 (c) all plastic trash bags sold or offered for sale in the state by a 4 producer shall contain, on average, at least twenty percent post-consum- 5 er recycled content. 6 3. The requirements of this section shall not apply to reusable or 7 refillable packaging or containers. 8 4. Beginning two years after plan implementation begins for the 9 initial organization, the department is authorized, in consultation with 10 the advisory council, to: 11 (a) establish content requirements for materials not listed in subdi- 12 vision two of this section; and 13 (b) modify the post-consumer recycled content targets for the materi- 14 als set forth in subdivision two of this section, provided that modifi- 15 cations do not result in a lesser percentage or an earlier year for the 16 respective target. 17 § 27-3431. Recyclability criteria and packaging recycling requirements. 18 1. Beginning two years after the promulgation of rules and regulations 19 pursuant to this title, packaging materials used by a producer shall 20 meet the following recyclability criteria: 21 (a) be capable of being sorted by entities that process recyclable 22 material generated in the state; 23 (b) have a consistent regional market for purchase, by end users in 24 the production of new products; 25 (c) not contain the following: 26 (i) opaque or pigmented polyethylene terephthalate; 27 (ii) oxo-degradable additives, including oxo-biodegradable additives; 28 (iii) polyethylene terephthalate glycol in rigid packaging; 29 (iv) label constructions, including adhesives, inks, materials and 30 formats, or features that render a package non-recyclable or disruptive 31 to the recycling process; and 32 (v) DoPS - polystyrene, excluding EPS (expanded polystyrene); 33 (d) meet the post-consumer content requirements of this title; and 34 (e) any other criteria determined by the department. 35 2. Each individual producer shall be required to meet the following 36 recycling rate standards: 37 (a) With respect to the producer's non-plastic packaging: 38 (i) Beginning January first, two thousand thirty, a minimum of thir- 39 ty-five percent of packaging material reported by the producer or an 40 organization as supplied into the state shall be reused or recycled, 41 with a minimum of five percent being reused; 42 (ii) Beginning January first, two thousand thirty-seven, a minimum of 43 fifty percent of packaging material reported by the producer or an 44 organization as supplied into the state shall be reused or recycled, 45 with a minimum of ten percent being reused; and 46 (iii) Beginning January first, two thousand fifty-two, a minimum of 47 seventy-five percent of packaging material reported by the producer or 48 an organization as supplied into the state shall be reused or recycled, 49 with a minimum of twenty percent being reused. 50 (b) With respect to plastic packaging: 51 (i) Beginning January first, two thousand thirty, a minimum of twen- 52 ty-five percent of plastic packaging material reported by the producer 53 or an organization as supplied into the state shall be reused or recy- 54 cled; 55 (ii) Beginning January first, two thousand thirty-seven, a minimum of 56 fifty percent of plastic packaging material reported by the producer orS. 1464 26 1 an organization as supplied into the state shall be reused or recycled; 2 and 3 (iii) Beginning January first, two thousand fifty-two, a minimum of 4 seventy-five percent of plastic packaging material reported by the 5 producer or an organization as supplied into the state shall be reused 6 or recycled. 7 3. The department may adjust the recycling rates in subdivision two of 8 this section by rulemaking based on information gathered through the 9 needs assessment or provided in producer plans and reports, and/or based 10 on consideration of environmental, technical and economic conditions. An 11 adjustment to the statewide recycling and reuse performance targets may 12 not adjust the recycling rate target to less than thirty percent or more 13 than seventy-five percent. 14 4. A producer may apply to the department for a waiver from the recy- 15 cling rate requirements of this section if compliance is impossible due 16 to federal law or otherwise conflicts with federal law. Such waiver 17 shall be applied for annually. In such application the producer shall 18 provide the department and the advisory council with sufficient informa- 19 tion, in the determination of the department in consultation with the 20 advisory council, to make a determination on such application, including 21 proof that the producer has taken all feasible actions to achieve the 22 reductions required by this section. 23 5. The requirements of subdivision two of this section shall not apply 24 to reusable or refillable packaging or containers. 25 § 27-3433. Establishment of the office of recycling inspector general. 26 1. The commissioner shall establish an independent office of recycling 27 inspector general within the department. The recycling inspector general 28 shall evaluate the programs and organizations created pursuant to this 29 title on an annual basis and shall ensure such programs are functioning 30 properly, and that all organizations and producers are in compliance 31 with the requirements of this title. 32 2. The recycling inspector general shall have the authority to inves- 33 tigate the compliance of producers and the organization with all 34 provisions of this title and to bring enforcement actions for violations 35 of this title pursuant to the provisions of section 27-3435 of this 36 title. A violation by the organization as the result of actions by one 37 or more producers shall be enforceable by the recycling inspector gener- 38 al as violations against such producers. 39 § 27-3435. Penalties and enforcement. 40 1. Failure to comply with the requirements of this title shall subject 41 the organization or an individual producer to penalties for violations. 42 The department, recycling inspector general, or attorney general, may 43 conduct investigations, including inspecting operations, facilities, and 44 records of producers and organizations, and performing audits of produc- 45 ers and organizations, to determine whether such producers and organiza- 46 tions are complying with the requirements of this title. 47 2. The department, the recycling inspector general, or the attorney 48 general, shall notify an organization or producer of any conduct or 49 practice that does not comply with the requirements of this title and of 50 any inconsistencies identified in an audit. 51 3. The department, the recycling inspector general, and the attorney 52 general, may issue a notice of violation to, and impose an administra- 53 tive civil penalty not to exceed one thousand dollars per day per 54 violation on any entity not in compliance with this title or any of the 55 regulations the department adopts to implement this title. For the 56 purposes of this section, each product line that is sold, offered forS. 1464 27 1 sale, or distributed to consumers via retail commerce in the state, 2 including through an internet transaction, shall be considered a sepa- 3 rate violation. 4 4. Civil penalties under this section shall be assessed by the depart- 5 ment after an opportunity to be heard pursuant to the provisions of 6 section 71-1709 of this chapter, or by the court in any action or 7 proceeding pursuant to section 71-2727 of this chapter, and in addition 8 thereto, such person or entity may by similar process be enjoined from 9 continuing such violation and any permit, registration or other approval 10 issued by the department may be revoked or suspended or a pending 11 renewal denied. 12 § 27-3437. Rules and regulations. 13 1. Within eighteen months after the effective date of this section, 14 the department shall promulgate all rules and regulations necessary to 15 implement, administer, and enforce the provisions of this title. 16 2. When promulgating rules pursuant to the provisions of this section, 17 the department shall solicit input from the public of any draft rule or 18 regulation to implement this section, including at a minimum a ninety- 19 day comment period and one public hearing on such draft rules. 20 § 27-3439. State preemption. 21 Jurisdiction in all matters pertaining to costs and funding mechanisms 22 of packaging reduction and recycling organizations relating to the 23 recovery of packaging materials shall, by this title, be vested exclu- 24 sively in the state; provided, however, that nothing in this title shall 25 preclude any city, town, village or other local planning units from 26 determining what materials shall be included for recycling in a local 27 government recycling collection program or shall preclude any person 28 from coordinating, for recycling or reuse, the collection of packaging 29 materials and products. 30 § 27-3441. Other assistance programs. 31 Nothing in this title shall impact any producer eligibility for any 32 state or local incentive or assistance program to which they are other- 33 wise eligible. 34 § 27-3443. Antitrust protections. 35 A producer shall not be liable for any claim of a violation of anti- 36 trust, restraint of trade, or unfair trade practice arising from conduct 37 undertaken in order to comply with this title; provided, however, this 38 section shall not apply to any agreement establishing or affecting the 39 price of packaging material, or the output or production of any agree- 40 ment restricting the geographic area or customers to which packaging 41 material will be sold. 42 § 27-3445. Severability. 43 The provisions of this title shall be severable and if any phrase, 44 clause, sentence or provision of this title or the applicability thereof 45 to any person or circumstance shall be held invalid, the remainder of 46 this title and the application thereof shall not be affected thereby. 47 § 3. The environmental conservation law is amended by adding a new 48 section 37-0202 to read as follows: 49 § 37-0202. Applicability. 50 This article shall only have effect to the extent that the prohibi- 51 tions in this title are not otherwise substantially given effect or in 52 conflict with the provisions of title thirty-four of article twenty-sev- 53 en of this chapter. 54 § 4. This act shall take effect immediately.
