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A10185 Summary:

BILL NOA10185
 
SAME ASNo Same As
 
SPONSORRules (Englebright)
 
COSPNSRRosenthal L, Colton, Glick, Epstein
 
MLTSPNSR
 
Add Art 27 Title 33 §§27-3301 - 27-3327, En Con L; add §92-kk, St Fin L
 
Establishes an extended producer responsibility program for packaging which creates provisions related to improved recycling practices; establishes the packaging responsibility fund.
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A10185 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10185
 
                   IN ASSEMBLY
 
                                       May 5, 2022
                                       ___________
 
        Introduced by COMMITTEE ON RULES -- (at request of M. of A. Englebright)
          --  read once and referred to the Committee on Environmental Conserva-
          tion
 
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          establishing  an  extended producer responsibility program for packag-
          ing; and to amend the state finance law, in relation  to  establishing
          the packaging responsibility fund

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 27 of the environmental conservation law is amended
     2  by adding a new title 33 to read as follows:
     3                                  TITLE 33
     4           EXTENDED PRODUCER RESPONSIBILITY PROGRAM FOR PACKAGING
     5  Section 27-3301. Definitions.
     6          27-3303. Responsibilities of producers.
     7          27-3305. Producer responsibility program plan.
     8          27-3307. Collection and convenience.
     9          27-3309. Responsibilities of the department.
    10          27-3311. Funding mechanism.
    11          27-3313. Non-reusable packaging reduction requirements.
    12          27-3315. Recycling or post-consumer recycled  material  require-
    13                     ments.
    14          27-3317. Toxic substances in packaging.
    15          27-3319. Biennial producer responsibility program report.
    16          27-3321. Producer compliance information.
    17          27-3323. Enforcement.
    18          27-3325. Labeling.
    19          27-3327. Regulations.
    20  § 27-3301. Definitions.
    21    As used in this title:
    22    1. "Compost" means the biologically stable humus-like material derived
    23  from  composting  or  the aerobic, thermophilic decomposition of organic
    24  matter but shall not mean sewage, septage,  or  materials  derived  from
    25  sewage or septage.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15702-01-2

        A. 10185                            2
 
     1    2.  "Compostable"  means amenable to the controlled aerobic biological
     2  decomposition of organic matter through  active  management  to  produce
     3  compost  as  certified by a third-party certifier and accepted and proc-
     4  essed into compost by at least  eighty  percent  of  commercial  compost
     5  facilities within the state.
     6    3. "Curbside recycling" means a recycling program that serves residen-
     7  tial  units,  or schools, state or local agencies, or institutions where
     8  such entities were eligible to be served under a contract with a munici-
     9  pality by a municipality or a private sector hauler as of the  effective
    10  date  of this title, and such recycling program is operated by a munici-
    11  pality or pursuant to a contract with  a  municipality,  private  sector
    12  hauler,  or  other public agency or through approved solid waste manage-
    13  ment plans.
    14    4. "Municipality" means a county, city, town,  village,  local  public
    15  authority  or  public  benefit  corporation,  or  solid waste management
    16  district,  that  provides  waste  management  services  for  a  specific
    17  geographical area.
    18    5.  "Non-reusable  packaging"  means  packaging material that does not
    19  meet the definition of "reusable".
    20    6. "Packaging material" means any part  of  a  package  or  container,
    21  regardless of recyclability or compostability, including but not limited
    22  to  such  material types as paper, plastic, glass or metal, that is used
    23  for the containment, protection, handling, delivery, transport, distrib-
    24  ution, and presentation of a product that is sold, offered for sale,  or
    25  distributed  in  the  state.   Bags and secondary or transport packaging
    26  shall be included within this definition.  Packaging material  does  not
    27  include:
    28    (a) material, or a category of material, intended to be used for long-
    29  term  storage or protection of a durable product that can be expected to
    30  be usable for that purpose for a  period  of  at  least  five  years  as
    31  defined by the department pursuant to regulations;
    32    (b) beverage containers subject to title 10 of this article;
    33    (c) packaging that is reusable;
    34    (d)  medical  devices  and  packaging which are included with products
    35  regulated as a drug, medical device or dietary supplement  by  the  U.S.
    36  Food  and Drug Administration under the Federal Food, Drug, and Cosmetic
    37  Act, 21 U.S.C. 321 et seq., sec. 3.2(e) of 21 U.S. Code of Federal Regu-
    38  lations or the Dietary Supplement Health and Education Act;
    39    (e) animal biologics, including vaccines, bacterins,  antisera,  diag-
    40  nostic  kits, and other products of biological origin, and other covered
    41  materials regulated by the United States Department of Agriculture under
    42  the Virus, Serum, Toxin Act, 21 U.S.C. 151-159; and
    43    (f)  packaging  products  used  to contain substances hazardous to the
    44  environment, regulated pursuant to section 37-0103 of this  chapter,  or
    45  packaging  products  regulated  by the federal Insecticide,   Fungicide,
    46  and Rodenticide  Act,  7 U.S.C.   sec. 136 et seq. or  other  applicable
    47  federal law, rule or regulation.
    48    7. "Post-consumer recycled material" means new material produced using
    49  material resulting from the recovery, separation, collection and reproc-
    50  essing  of  material that would otherwise be disposed of or processed as
    51  waste and that was originally sold for consumption. Post-consumer  recy-
    52  cled  material does not include post-industrial material or pre-consumer
    53  material, or material generated by means  of  combustion,  incineration,
    54  pyrolysis,  gasification,  solvolysis,  chemical recycling and any high-
    55  heat or chemical conversion process.
    56    8. "Producer" means a person who:

        A. 10185                            3
 
     1    (a) manufactures or uses in a commercial enterprise, sells, offers for
     2  sale, or distributes the packaging material in the state under the brand
     3  of the manufacturer; or
     4    (b)  if  paragraph  (a)  of this subdivision does not apply, an entity
     5  that is not the manufacturer of the packaging material but is the  owner
     6  or licensee of a trademark under which the packaging material is used in
     7  commercial  enterprise,  sold,  offered  for sale, or distributed in the
     8  state, whether or not the trademark is registered; or
     9    (c) if paragraphs (a) and (b) of this subdivision  do  not  apply,  an
    10  entity  that sells packaging in the state which is intended to be filled
    11  at the point of sale; or
    12    (d) if paragraphs (a),  (b) and (c) of this subdivision do not  apply,
    13  an  entity that imports the packaging material into the United States or
    14  the state for use in a commercial enterprise, sale, offer for  sale,  or
    15  distribution in the state.
    16    "Producer"  includes  a franchisor of a franchise located in the state
    17  but does not include the franchisee operating that franchise.
    18    9. "Readily-recyclable" means that the department has determined  that
    19  the packaging material:
    20    (a)  can be sorted by entities that process recyclable material gener-
    21  ated in the state; and
    22    (b) has a consistent market for purchase, as based on  data  from  the
    23  prior two calendar years, meaning that with respect to a type of packag-
    24  ing  material,  entities  processing  recyclable material are willing to
    25  purchase full bales of that type of fully sorted packaging  material  in
    26  quantities  equal  to  or  in  excess of the supply of that fully sorted
    27  packaging material.  "Readily-recyclable"  does  not  include  packaging
    28  material that facilities accept in low qualities or sort out of material
    29  during  additional  processing steps or if facilities cannot sell a full
    30  bale due to a lack of market or inability  to  feasibly  separate  those
    31  materials  during additional processing steps.  Packaging material cate-
    32  gories or types shall not be  considered  readily-recyclable,  generally
    33  recyclable, compostable, or reusable if they contain a toxic substance.
    34    10. "Recycling" means the series of activities by which material is:
    35    (a) collected, sorted, and processed; (b) converted into a raw materi-
    36  al with minimal loss of material quality; and (c) used in the production
    37  of  a  new product to replace the use of virgin materials, including the
    38  original material. "Recycling" does not include energy recovery or ener-
    39  gy generation by any means, including but  not  limited  to  combustion,
    40  incineration,  pyrolysis, gasification, solvolysis, waste to fuel or any
    41  chemical conversion process, or landfill disposal of discarded  material
    42  or discarded product component materials.
    43    11. "Reusable" means:
    44    (a)  designed  to  be  used repeatedly for a number of use cycles that
    45  exceeds the minimum number of times necessary to achieve the same  over-
    46  all  environmental  impact  as the non-reusable or disposable product it
    47  replaces, based on a life cycle assessment of the product's impacts from
    48  extraction through production  and  through  disposal  or  end  of  life
    49  management;
    50    (b)  compliant with any statutory or regulatory requirements for toxic
    51  substances;
    52    (c) safe for washing and sanitizing according to applicable state food
    53  safety laws; and
    54    (d) capable of being recycled at the end of use, with the exception of
    55  ceramic products.

        A. 10185                            4
 
     1    12. "Reuse and refill system" means a set of  mechanisms  designed  to
     2  facilitate  multiple  uses  of  a  reusable container, in order to, at a
     3  minimum, achieve the breakeven point for such reusable container.  Mech-
     4  anisms  may include, but are not limited to, deposits, incentives, curb-
     5  side collection, collection kiosks, refill stations, dishwashing facili-
     6  ties, and re-distribution networks.
     7    13. "Toxic substance" means a chemical substance identified in section
     8  27-3317 of this title, or a chemical substance designated by the depart-
     9  ment  on the basis of identification by a government entity and/or iden-
    10  tification on the basis of credible scientific evidence as being:
    11    (a) a carcinogen, mutagenic, or reproductive  or  developmental  toxi-
    12  cant;
    13    (b) endocrine disruptor;
    14    (c)  damaging to the nervous system, immune system, or organs or caus-
    15  ing other systemic toxicity;
    16    (d) persistent, bioaccumulative and toxic;
    17    (e) highly persistent and highly mobile;
    18    (f) persistent, mobile and toxic; or
    19    (g) persistent and very bioaccumulative.
    20    14. "Unit" means each discrete component of a package or container.
    21    15. "Universal product code" or "UPC" shall have the same  meaning  as
    22  subdivision 13 of section 27-1003 of this article.
    23    16. "Waste reduction" means any action which causes a net reduction in
    24  the  generation  of  solid  waste  and  includes, but is not limited to,
    25  reducing the use of nonrecyclable materials, replacing disposable  mate-
    26  rials  and products with reusable materials and products, reducing pack-
    27  aging, and increasing the efficiency of the use  of  materials.    Waste
    28  reduction does not include replacing a recyclable material with a nonre-
    29  cyclable  material or a material that is less likely to be recycled, and
    30  does not include a shift from a nonplastic material  that  currently  is
    31  recyclable to a plastic material.
    32  § 27-3303. Responsibilities of producers.
    33    1.  There  is  hereby  established a packaging producer responsibility
    34  program by which producers, participating individually or  collectively,
    35  shall  be  required  to  make  changes to their product design to reduce
    36  packaging consumption and increase waste reduction, shall be required to
    37  pay fees based on the amount, by weight and type, of packaging  material
    38  sold,  offered  for sale, or distributed for sale in the state and shall
    39  be responsible for packaging waste disposal.
    40    2. The producer or producers shall provide all  information  necessary
    41  for  the  determination  of  the  producer's payment obligations and the
    42  determination of the producer's compliance with respect to this title.
    43    3. Within six months of the effective date of this title, the  depart-
    44  ment,  or  a third party, shall conduct a statewide reduction, reuse and
    45  recycling needs assessment, hereafter "needs  assessment",  to  identify
    46  barriers  and opportunities for reducing, reusing, and recycling packag-
    47  ing. The needs assessment shall at a minimum include  an  evaluation  of
    48  capacity costs, gaps and needs for the following factors:
    49    (a)  current  barriers  affecting the creation of reduction, reuse and
    50  refill programs;
    51    (b) opportunities for the creation  of  reduction,  reuse  and  refill
    52  programs;
    53    (c)  current  municipal  funding  needs, both operational and capital,
    54  impacting recycling access and availability and reuse and refill;
    55    (d) existing state statutory provisions and funding sources for  recy-
    56  cling, reuse, reduction, and recovery;

        A. 10185                            5
 
     1    (e)  the existing collecting and hauling system for recyclable materi-
     2  als;
     3    (f) opportunities to improve access to recycling;
     4    (g)  the  capacity, cost, and needs associated with the collection and
     5  transportation of recyclable materials in the state;
     6    (h) the processing capacity, market conditions, and infrastructure for
     7  recyclable materials in the state and regionally;
     8    (i) current state packaging product recovery rates,  recycling  rates,
     9  and post-consumer recycled content rates, by material type;
    10    (j) accounting of greenhouse gas emissions associated with collection,
    11  processing, and marketing of packaging products;
    12    (k)  an  evaluation  of  state and regionally accepted recycling prac-
    13  tices;
    14    (l) current barriers affecting equitable access to recycling and reuse
    15  programs;
    16    (m) barriers to the marketability of recyclable materials generated in
    17  the state, and potential solutions;
    18    (n) the amount, by weight, of material that is recycled by each  recy-
    19  cling facility that accepts packaging material;
    20    (o)  consumer education needs for reuse and refill systems, recycling,
    21  and reducing contamination in collected recyclable material that reduces
    22  its suitability for recycling;
    23    (p) the net cost of curbside  collection,  commercial  collection,  or
    24  transfer station operation, on-site processing cost for each readily-re-
    25  cyclable  packaging  material  types, management cost of non-readily-re-
    26  cyclable packaging, transportation cost for each packaging material, and
    27  any other cost factors determined by the department;
    28    (q) the availability of  opportunities  in  the  recycling  and  reuse
    29  systems for minority- and women-owned business enterprises; and
    30    (r)  the  location  of  landfills,  incinerators and transfer stations
    31  within the state, the socio-economic conditions  where  such  facilities
    32  are sited and the permitted pollution levels at each facility.
    33    3.  The  department shall be responsible for updating and revising the
    34  needs assessment every three years.
    35    4. The department shall post the results of the  needs  assessment  on
    36  its website and issue a report to the legislature.
    37  § 27-3305. Producer responsibility program plan.
    38    1. Within six months of the effective date of this title, each produc-
    39  er shall register with the department.
    40    2.  Within  eighteen  months of the effective date of this title, each
    41  producer, either individually or acting  collectively,  shall  submit  a
    42  producer responsibility program plan (hereinafter "plan") to the depart-
    43  ment  for  approval.  A  producer may satisfy its obligations under this
    44  title individually or collectively.
    45    3. Each producer shall begin program implementation within six  months
    46  after  the  date  the plan is approved or no later than two years of the
    47  effective date of this title. If no plan is approved by that  timeframe,
    48  the producer shall be subject to penalties for noncompliance.
    49    4. Any person that becomes a producer after the effective date of this
    50  title  shall  submit  an  individual plan, or join with other producers,
    51  within six months and begin program implementation within six months  of
    52  plan approval or be subject to penalties for noncompliance.
    53    5. The submitted plan shall, at a minimum, address the following:
    54    (a)  Contact  information, including the name, electronic and physical
    55  address, and telephone number of the authorized  representative  of  the
    56  producer or producers.

        A. 10185                            6
 
     1    (b) Identify the producer or producers participating in the plan.
     2    (c) A description of how the non-reusable packaging reduction require-
     3  ments  and recycling or post-consumer recycled material requirements are
     4  addressed.
     5    (d) A comprehensive list of the types and brands of packaging products
     6  for which the producer or producers are responsible for,  including  the
     7  UPCs of the products associated with each type of packaging material.
     8    (e)  A  description  of  the proposed funding mechanism, identified in
     9  section 27-3311 of this title that meets the requirements of this  title
    10  and  is  sufficient to cover the cost of operating the program, updating
    11  the plan, and maintaining a financial reserve sufficient to operate  the
    12  program  in a fiscally prudent and responsible manner. At a minimum, the
    13  following funding mechanism details shall be provided in the plan:
    14    (i) proposed program fees, listed by producer, which are based  on  an
    15  objective  formula establishing a reimbursement rate, which covers obli-
    16  gations identified in the needs assessment and takes into account  vari-
    17  able  regional  costs (including at a minimum those identified in clause
    18  (A) of subparagraph (iv) of this paragraph,  for  participating  munici-
    19  palities or private sector haulers, approved by the department.
    20    (ii)  program fees determined based on eco-modulation. For purposes of
    21  this title, "eco-modulation" shall  provide  that  program  charges  are
    22  structured  to  provide  producers with financial incentives that reward
    23  reduction of waste at the source and recycling compatibility innovations
    24  and practices, reward producers for reusable packaging products, includ-
    25  ing those that are contained within a reuse and refill system  and  that
    26  disincentivize  designs or practices that increase costs of managing the
    27  packaging products.
    28    (iii) the producer or producers may  adjust  charges  to  be  paid  by
    29  participating  producers, or may include a credit, based on factors that
    30  affect system costs.
    31    (iv) program fees shall also be variable based on:
    32    (A) costs to provide recycling collection or other  form  of  consumer
    33  service  that  is,  at  minimum,  as  convenient  as  the previous waste
    34  collection schema in the particular jurisdiction for all consumers;
    35    (B) costs to process a  producer's  packaging  products  for  sale  to
    36  secondary material markets;
    37    (C)  whether the packaging product would typically be readily-recycla-
    38  ble except that as a consequence of the product's  design,  the  product
    39  has the effect of disrupting recycling processes or the product includes
    40  labels,  inks,  or  adhesives containing heavy metals that would contam-
    41  inate the recycling process;
    42    (D) whether the packaging is specifically designed to be  reusable  or
    43  refillable, is contained within a reuse or refill system, and has a high
    44  reuse or refill rate;
    45    (E) the commodity value of packaging products; and
    46    (F)  contributions  to  greenhouse  gas emissions from the production,
    47  use, collection, processing, and marketing of the packaging product.
    48    (f) A description of the process for participating  municipalities  or
    49  private  sector haulers to recoup reasonable costs as established by the
    50  needs assessment from the producer, including, as applicable, any admin-
    51  istrative, sorting,  collection,  transportation,  public  education  or
    52  processing costs if the producer uses services through a municipality or
    53  obtains such services from a private hauler;
    54    (g)  A  description  of the characteristics of each  type of packaging
    55  material that are relevant  to  the  eco-modulating  factors  set  forth
    56  pursuant to section 27-3311 of this title,

        A. 10185                            7
 
     1    (h)  A  description  of  the  producer's or producers' public outreach
     2  education program for consumers and other stakeholders that  will  at  a
     3  minimum:
     4    (i)  be designed to achieve the management goals of packaging products
     5  under this title, including the prevention of contamination of products;
     6    (ii) incorporate, at  a  minimum,  electronic,  print,  web-based  and
     7  social  media  elements  that  municipalities  could  utilize  at  their
     8  discretion;
     9    (iii) consult with municipalities and other  stakeholders,  coordinate
    10  with and assist local municipal programs, municipal contracted programs,
    11  solid waste collection companies, and other entities providing services,
    12  and  develop  and  provide  outreach  and education to the diverse popu-
    13  lations in the state, including utilizing  a  variety  of  outreach  and
    14  education  tools and ensuring materials are widely accessible and avail-
    15  able in multiple languages;
    16    (iv) label or  mark  packaging  information  in  accordance  with  the
    17  requirements of section 27-3325 of this title;
    18    (v)  include  details  on the following components of the outreach and
    19  education program provided in the plan and make such  details  available
    20  to  consumers  and  other  stakeholders  on the producer's or producers'
    21  public education program website:
    22    (A) proper end-of-life management of packaging;
    23    (B) the location and availability of recycling collection;
    24    (C) how to prevent litter of packaging products; and
    25    (D) a description of the process for answering  stakeholder  questions
    26  and resolving any issues.
    27    6.  A  producer implementing an individual extended producer responsi-
    28  bility  program  or  producers  acting  cooperatively  shall   undertake
    29  outreach,  education,  and  communications  that  assist in attaining or
    30  exceeding the minimum post-consumer content, minimum recovery rates, and
    31  minimum recycling rates, as specified by the department in regulation.
    32    7. No later than ninety days after the submission  of  the  plan,  the
    33  department  shall  determine  whether  to approve the plan as submitted;
    34  approve the plan with conditions; or deny the plan.
    35    8. The department shall consider the following in determining  whether
    36  to approve a plan:
    37    (a)  whether  the  plan adequately addresses all elements described in
    38  this section;
    39    (b) whether the producer or  producers  have  undertaken  satisfactory
    40  consultation  with  the  public  and municipalities and have provided an
    41  opportunity for input in the development of the plan prior to submission
    42  of the plan;
    43    (c) whether the plan adequately provides for:
    44    (i) the producer or producers collecting  and  funding  the  costs  of
    45  collecting  and  processing  packaging materials covered by the plan and
    46  reimbursing municipalities or private haulers providing such services;
    47    (ii) the funding mechanism to cover the entire cost of the producer or
    48  producers' program and whether such mechanism provides for an  equitable
    49  distribution of funding;
    50    (iii)  an  evaluation  system  for the program charge structure, which
    51  shall be evaluated on an annual basis and resubmitted to the  department
    52  annually;
    53    (iv) effective consumer outreach and education;
    54    (v)  whether  the plan satisfactorily provides for how the producer or
    55  producers implementing an individual  extended  producer  responsibility
    56  program  will  meet  the  minimum  post-consumer content rates, recovery

        A. 10185                            8
 
     1  rates, and recycling rates, which will create  or  enhance  markets  for
     2  recycled materials; and
     3    (vi)  whether  the  plan  creates a convenient system for consumers to
     4  recycle packaging products that meets or exceeds the convenience  crite-
     5  ria set forth in section 27-3307 of this title.
     6    10.  The  department  may  deny  a  plan. (a) If a plan is denied, the
     7  department shall inform the producer or producers implementing an  indi-
     8  vidual  extended  producer  responsibility  program in writing as to any
     9  deficiencies in such plan. The producer or  producers  implementing  the
    10  plan shall amend and resubmit any denied plans for reconsideration with-
    11  in sixty days of notification of the denial of such plan. The department
    12  shall approve or deny such plan within thirty days of resubmission.
    13    (b)  If  a  plan is denied a second time, the department shall provide
    14  the producer or producers with  direction  for  meeting  any  additional
    15  required  elements of the plan it deems necessary.  If such requirements
    16  are not met within thirty days,  the  producer  or  producers  shall  be
    17  subject to penalties for each day such plan is delayed.
    18    11. The department may rescind the approval of an approved plan at any
    19  time for just cause. If a plan is rescinded, the department shall inform
    20  the  producer  or producers in writing as to any and all reasons why the
    21  plan was rescinded. The producer  or  producers  implementing  the  plan
    22  shall  amend and resubmit any rescinded plans for reconsideration within
    23  sixty days of such notification. The department shall approve or  reject
    24  any such amended plan within thirty days of resubmission.
    25    12.  The  producer  or  producers  shall  notify the department of any
    26  proposed modification to the program. If the department determines  that
    27  the  plan  has  been  substantially  modified, the producer or producers
    28  shall submit a proposed plan amendment describing  the  changes  to  the
    29  department  within  ninety days of the determination. Within ninety days
    30  of receipt of a proposed amended plan, the  department  shall  determine
    31  whether  the amended plan complies with this title. The department shall
    32  send a letter notifying the producer or producers of: (a)  approval;  or
    33  (b)  disapproval,  including  the  reasons  for  rejecting the plan. The
    34  producer or producers shall submit a  revised  plan  within  sixty  days
    35  after receipt of the letter of disapproval.
    36    13.  The producer or producers shall reimburse the department annually
    37  at the time of annual reporting for all administrative costs  associated
    38  with implementation and oversight of the program.
    39    14.  Beginning two calendar years following the effective date of this
    40  title, a producer shall not:
    41    (a) sell, offer for sale, or  distribute,  in  the  state,  a  product
    42  contained,  protected,  delivered,  presented or distributed in or using
    43  packaging material for which the producer  has  not  complied  with  all
    44  applicable requirements of this title; or
    45    (b)  sell, offer for sale, or distribute packaging for use in New York
    46  unless such packaging products are in  compliance  with  all  applicable
    47  requirements of this title.
    48    15.  No  person  may  charge  a  consumer  point-of-sale  or  point of
    49  collection fee to recoup the costs associated  with  meeting  the  obli-
    50  gations under this title.
    51    16. A producer or producers shall annually report to the department:
    52    (a)  the  total amount of packaging material, by weight, sold, offered
    53  for sale, or distributed into the state by the producer or producers  in
    54  the prior calendar year;

        A. 10185                            9
 
     1    (b) the total amount of packaging material, by unit, sold, offered for
     2  sale,  or distributed into the state by the producer or producers in the
     3  prior calendar year;
     4    (c) the percentage of all packaging material the producer or producers
     5  sold,  offered  for  sale,  or distributed for sale in the state through
     6  internet transactions; and
     7    (d) the following financial information:
     8    (i) the total costs of implementing the program, as determined  by  an
     9  independent financial audit;
    10    (ii) a copy of the independent audit; and
    11    (iii)  a detailed description of whether the program compensates muni-
    12  cipalities, solid waste collection, sorting  and  processing  facilities
    13  and  other  approved  entities  for  their  recycling  efforts and other
    14  related services provided and any amount of reimbursement provided.
    15    17. In accordance with the regulations adopted by  the  department,  a
    16  producer  or  producers shall annually report to the department informa-
    17  tion necessary for the department to make a determination of the produc-
    18  er's or producers' compliance with:
    19    (a) the  non-reusable  packaging  reduction  requirements  of  section
    20  27-3313 of this title;
    21    (b)  the  reuse  and  refill system requirements of section 27-3313 of
    22  this title;
    23    (c) the recycling or post-consumer recycled material  requirements  of
    24  section 27-3315 of this title;
    25    (d)  the toxic substances in packaging requirements of section 27-3317
    26  of this title; and
    27    (e) the labeling requirements of section 27-3325 of this title.
    28    18. Each producer shall pay fees, associated  with  the  cost  of  the
    29  needs assessment required by section 27-3311 of this title.
    30    19.  Notwithstanding  any  provision  of this title to the contrary, a
    31  producer shall be exempt from the requirements and prohibitions of  this
    32  title:
    33    (a)  in any calendar year in which the producer realized less than two
    34  million dollars in total gross revenue during the prior  calendar  year;
    35  or
    36    (b) in any calendar year in which the producer sold, offered for sale,
    37  or  distributed  for  sale  in  the state during the prior calendar year
    38  packaging materials/products contained, protected, delivered, presented,
    39  or distributed in or using less than one ton of  packaging  material  in
    40  total; or
    41    (c) if the producer is a municipality.
    42    20.  A producer claiming an exemption under this section shall provide
    43  to the department sufficient information to demonstrate that the  claim-
    44  ant  meets  the  requirements for an exemption under this section within
    45  thirty days of receiving a request from the department.
    46  § 27-3307. Collection and convenience.
    47    A producer  or producers shall provide for widespread, convenient, and
    48  equitable access to collection opportunities for the packaging materials
    49  identified under the producer  or producers' plan at no additional  cost
    50  to  residents.  Such opportunities shall be provided to all residents of
    51  New York in a manner that is as convenient as the  collection  of munic-
    52  ipal solid waste. A producer or producers shall ensure services continue
    53  for curbside recycling programs that a municipality  serves  as  of  the
    54  effective  date  of this title, either directly or through a contract to
    55  provide services, and that such services    are  continued  through  the
    56  plan.  A plan may not restrict a resident's ability to contract directly

        A. 10185                           10
 
     1  with third  parties to obtain recycling collection services if residents
     2  have the option to enter into such contracts as of the effective date of
     3  this title, as  long  as  the  resident  still  voluntarily  chooses  to
     4  contract  directly   with   the third party. A producer or producers may
     5  rely on a range of means to collect various categories of  packaging  so
     6  long  as  options  for  packaging  material  include  curbside recycling
     7  collection services provided by municipal programs, municipal contracted
     8  programs, solid waste collection companies, or other  approved  entities
     9  as identified  by the department if:
    10    1.  The  category  of  packaging materials is suitable for residential
    11  curbside recycling collection and can be  effectively    sorted  by  the
    12  facilities receiving the curbside collected material.
    13    2.  The  recycling facility   providing processing and sorting service
    14  agrees to include the category of packaging materials  as   an  accepted
    15  material.
    16    3.  The packaging material is not handled through a deposit and return
    17  scheme or buy back system that relies on a collection system other  than
    18  curbside or multi-family collection.
    19    4.  The  provider of the residential curbside recycling service agrees
    20  to participate.
    21    5. (a) The producer or producers shall adopt a list of  minimum  types
    22  of  readily recyclable materials  and products based on the department's
    23  identification of available collection and processing infrastructure and
    24  recycling  markets for packaging materials. The  producer  or  producers
    25  shall update and adopt the list on an annual basis, in consultation with
    26  the department, in response to collection  and  processing  improvements
    27  and   changes in recycling end markets. If there are multiple lists, the
    28  department shall  compile  the lists and shall publish a  compiled  list
    29  to  the  public.  Such  lists may vary by geographic region depending on
    30  regional markets and regional collection and processing infrastructure.
    31    (b) All municipalities or private recycling  service  providers  shall
    32  provide for the collection and recycling of all identified materials and
    33  products  contained  on  the  list  of  minimum  recyclables,  based  on
    34  geographic regions, in order to be eligible for reimbursement; provided,
    35  however, nothing shall penalize  a  municipality  or  private  recycling
    36  service  for  packaging materials that are generated in the municipality
    37  or geographic region that are not included on the list of minimum  types
    38  of  recyclable  packaging  materials  or  products  as long as it can be
    39  demonstrated that such materials have a  market  as  determined  by  the
    40  department in consultation with the producer or producers. Reimbursement
    41  shall cover recycling of all  packaging materials so long as the program
    42  includes at least the minimum recyclable list.
    43  § 27-3309. Responsibilities of the department.
    44    1. Within one year of the effective date of this title, the department
    45  shall  promulgate  regulations  setting  recommended  program  fees  for
    46  producers to pay after consulting with multiple stakeholders,  including
    47  municipalities,  businesses,  institutions,  and other extended producer
    48  responsibility programs. Program fees shall be set at a rate  that  will
    49  drive  reductions  in  overall  packaging, incentivize adoption of reuse
    50  systems, increase post-consumer recycled material, and promote  the  use
    51  of recyclable packaging.
    52    2.  The  department  shall revise recommended program fees every three
    53  years, beginning three years after the first  set  of  program  fees  is
    54  established  to reflect new data received about material use and manage-
    55  ment, or whenever the targets set in sections  27-3313  and  27-3315  of
    56  this title are not met to drive compliance with such targets.

        A. 10185                           11
 
     1    3.  The  department  shall  annually  compile  a  list of any producer
     2  noncompliance, and the steps being taken to bring noncompliant producers
     3  into compliance.
     4    4.  The department shall annually provide a description of the infras-
     5  tructure and education investments made by producers in  prior  calendar
     6  years  and  an  evaluation  of  how  those  investments were designed to
     7  increase access to recycling and refill or reuse systems in the state.
     8    5. The department shall provide an annual assessment of  the  progress
     9  made  toward  the  achievement  of  any program goals, including but not
    10  limited to the requirements under sections 27-3313 and 27-3315  of  this
    11  title.
    12    6.  The  department  shall provide an annual assessment of the payment
    13  schedule adopted by producers pursuant to section 27-3311 of this title.
    14    7. The department shall provide an annual assessment  of  whether  the
    15  plan  has been successful in increasing the amount of packaging material
    16  that is readily recyclable, increasing the transition from  non-reusable
    17  to  reusable  packaging, and incentivizing improvements to the design of
    18  packaging material.
    19    8. The department shall consider any  proposals  for  changes  to  the
    20  program  or  investments  in  education  and  infrastructure designed to
    21  reduce the amount of packaging material used, increase access to recycl-
    22  ing, increase the recycling of or recyclability of  packaging  material,
    23  reduce  program  costs,  or otherwise increase program efficiency, which
    24  may include an  analysis  of  best  practices  for  municipal  recycling
    25  programs and material recovery facilities.
    26    9. The department shall consider the results of representative inbound
    27  and outbound audits of recyclable material processed and sold by materi-
    28  als  recycling  facilities  in  the  state and waste characterization of
    29  municipal solid waste.
    30    10. The department shall review the results of a producers' third-par-
    31  ty financial audits.
    32  § 27-3311. Funding mechanism.
    33    1. The department  shall  promulgate  regulations  setting  forth  the
    34  manner in which recommended producer program fees on packaging materials
    35  shall be calculated.  Payments shall be calculated based on:
    36    (a) the packaging material type; and
    37    (b)  the quantity of each packaging material type, by weight, that the
    38  producer sells, offers for sale, or distributes in the state.
    39    2. The list of packaging material types shall include, at  a  minimum,
    40  the following materials:
    41    (a) paper;
    42    (b) cardboard;
    43    (c) corrugated cardboard;
    44    (d) generic paper/cardboard;
    45    (e) wood;
    46    (f) glass;
    47    (g) polyethylene terephthalate (PET);
    48    (h) high density polyethylene (HDPE);
    49    (i) expanded polystyrene (EPS);
    50    (j) polystyrene;
    51    (k) bio-plastics;
    52    (l) generic plastics;
    53    (m) plastic film;
    54    (n) other plastics;
    55    (o) steel or ferrous;
    56    (p) aluminum;

        A. 10185                           12
 
     1    (q) tinplate; and
     2    (r) generic metals.
     3    3. (a) Program fees shall at a minimum include:
     4    (i)  costs to provide curbside collection or other form of residential
     5  service  that is, at minimum, as convenient as curbside collection or as
     6  convenient as the previous recycling collection plan in the   particular
     7  jurisdiction  or as convenient as the previous refuse collection plan in
     8  the particular jurisdiction should recycling collection not be provided;
     9    (ii)  costs to process packaging materials for acceptance by secondary
    10  material markets;
    11    (iii) whether the packaging materials would typically  be  readily-re-
    12  cyclable except that as a consequence of the product's design, the prod-
    13  uct    has  the  effect of disrupting recycling processes or the product
    14  includes labels, inks, and adhesives containing heavy  metals  or  other
    15  toxic substances that would contaminate the recycling process;
    16    (iv)    whether  the  packaging  materials  or product is specifically
    17  designed to be reusable or refillable and has high reuse or refill rate;
    18    (v) the commodity value of a packaging material or product.
    19    The charges shall be adjusted, or the producers may be   provided    a
    20  credit,  based  upon  the  percentage of post-consumer recycled material
    21  content and such percentage of post-consumer recycled content  shall  be
    22  verified by an independent  third party approved to perform verification
    23  services  to  ensure  that such percentage exceeds the minimum  require-
    24  ments in  the  packaging material, as long as the recycled content  does
    25  not disrupt the potential for future recycling.
    26    (b)  Fees  shall be higher for packaging material that is not readily-
    27  recyclable.
    28    (c) The fees for each type of packaging material shall be eco-modulat-
    29  ed and structured to  promote  the  environmental  beneficial  packaging
    30  design in accordance with the following:
 
    31         Fees                   Type of packaging

    32         Fees are increased     Packaging is not readily-recyclable
    33         Fees are lowered       Packaging is readily-recyclable
    34                                Packing is compostable
    35                                Packing incorporates post-consumer
    36                                recycled material
    37         No fee                 Reusable or refillable packaging contained
    38                                within a reuse/refill system
 
    39  § 27-3313. Non-reusable packaging reduction requirements.
    40    1. A producer shall reduce the total amount by unit, on average and in
    41  the  aggregate, of non-reusable packaging across its brand in accordance
    42  with the following schedule:
    43    (a) by ten percent two years after the implementation of the  producer
    44  plan pursuant to section 27-3305 of this title;
    45    (b) by at least twenty percent four years after plan implementation;
    46    (c) by at least thirty percent six years after plan implementation;
    47    (d)  by  at least forty percent eight years after plan implementation;
    48  and
    49    (e) by at least fifty percent ten years after plan implementation.
    50    2. The reductions required by subdivision one of this section shall be
    51  measured against the  total  amount  of  packaging  the  producer  sold,
    52  offered  for  sale,  or  distributed  for  sale  in the state during the
    53  respective calendar year. For producers who  did  not  sell,  offer  for

        A. 10185                           13
 
     1  sale, or distribute for sale any packaging during the calendar year, the
     2  reductions required by subdivision one of this section shall be measured
     3  against  the  first  calendar year for which there is data regarding the
     4  amount  of packaging the producer sold, offered for sale, or distributed
     5  for sale in the state.
     6    3. These reductions may be achieved by eliminating non-reusable  pack-
     7  aging,  including  secondary  packaging,  or  by transitioning away from
     8  non-reusable packaging to a reuse and refill system.
     9    4. The department shall promulgate regulations that address the manner
    10  in which each producer will report its compliance with the  requirements
    11  of this section.
    12  § 27-3315. Recycling or post-consumer recycled material requirements.
    13    1.  Each  producer shall ensure that all non-reusable packaging in the
    14  aggregate, across its entire brand, either:
    15    (a) is recycled at a rate consistent with the following schedule:
    16    (i) fifty percent five years after implementation of the producer plan
    17  pursuant to section  27-3305 of this title;
    18    (ii) eighty percent eight years after plan implementation;
    19    (iii) ninety percent twelve years after plan implementation; or
    20    (b) incorporates, on average  and  in  the  aggregate,  the  following
    21  amount by weight of post-consumer recycled material:
    22    (i) fifty percent five years after plan implementation;
    23    (ii) eighty percent five years after plan implementation; or
    24    (iii) ninety percent twelve years after plan implementation.
    25    2.  Any  producer  that  enters the market after the effective date of
    26  this title shall meet the recycling requirements required by subdivision
    27  one of this section as measured against  the  first  calendar  year  for
    28  which there is data regarding the amount of packaging the producer sold,
    29  offered for sale, or distributed for sale in the state.
    30    3. (a) For the purpose of determining a producer's compliance with the
    31  post-consumer recycled material requirements of this section, a producer
    32  shall  rely on New York data regarding packaging sales and material use,
    33  if available, or may alternatively rely on the same type of data  appli-
    34  cable  to  a  region or territory of the United States that includes the
    35  state of New York.
    36    (b) If a producer elects to rely on data regarding packaging sales and
    37  materials derived from data applicable to a region or territory  of  the
    38  United States that includes the state of New York, the producer shall:
    39    (i)  pro-rate  the  regional or territorial data to determine New York
    40  specific figures based on market share or population in  a  manner  that
    41  ensures  that  the  percentage of post-consumer recycled material calcu-
    42  lated for packaging material sold in New York is the same percentage  as
    43  calculated for that larger region or territory; and
    44    (ii) document the methodology used to determine such New York specific
    45  figures calculated under subparagraph (i) of this paragraph.
    46    4.  If a producer elects to comply with the provisions of this section
    47  by meeting the post-consumer recycled material requirements, the depart-
    48  ment may assess against a producer  that  fails  to  comply  with  those
    49  requirements an administrative penalty calculated as follows:
    50    (a)  The  department shall add the total amount by weight in pounds of
    51  post-consumer recycled material and the total amount by weight in pounds
    52  of material that is not post-consumer  recycled  material  used  by  the
    53  producer  in all the packaging it sold, offered for sale, or distributed
    54  for sale in the state during the prior calendar year.  Unless  otherwise
    55  determined by the department, the figure calculated under this paragraph
    56  shall be calculated using the information reported by the manufacturer.

        A. 10185                           14
 
     1    (b)  The  department  shall multiply the figure calculated under para-
     2  graph (a) of this subdivision  by  the  minimum  post-consumer  recycled
     3  material  percentage  required under paragraph (b) of subdivision one of
     4  this section during the prior calendar year.
     5    (c)  The  department  shall subtract from that figure calculated under
     6  paragraph (b) of this subdivision the total amount by weight  in  pounds
     7  of  post-consumer recycled material used by the producer in all products
     8  it sold, offered for sale, or distributed for sale in packaging  in  the
     9  state during the prior calendar years.
    10    (d)  The  department shall multiply that figure calculated under para-
    11  graph (c) of this subdivision by twenty cents. If the figure  calculated
    12  under  this  paragraph is less than or equal to zero, the department may
    13  not assess an administrative penalty.
    14  § 27-3317. Toxic substances in packaging.
    15    1. Beginning December thirty-first, two thousand twenty-four, in addi-
    16  tion to the requirements of title two of article  thirty-seven  of  this
    17  chapter,  no  person  may  sell, offer for sale, distribute for sale, or
    18  distribute for use in this state, any packaging material containing  the
    19  following  toxic substances above the practical quantification limit, as
    20  such term is defined in section 37-0901 of this chapter:
    21    (a) ortho-phthalates;
    22    (b) bisphenols;
    23    (c) per- and polyfluoroalkyl substances (PFAS);
    24    (d) lead and lead compounds;
    25    (e) hexavalent chromium and compounds;
    26    (f) cadmium and cadmium compounds;
    27    (g) mercury and mercury compounds;
    28    (h) benzophenone and its derivatives;
    29    (i) halogenated flame retardants;
    30    (j) perchlorate;
    31    (k) formaldehyde; and
    32    (l) toluene.
    33    2. Beginning one year after the  effective  date  of  this  title,  no
    34  person  may sell, offer for sale, distribute for sale, or distribute for
    35  use in this state, any packaging products containing the following toxic
    36  substances above the practical quantification limit, as  such  term   is
    37  defined in section 37-0901 of this chapter:
    38    (a) polyvinyl chloride;
    39    (b) polystyrene; or
    40    (c) polycarbonate.
    41    3.  Beginning  three years after the effective date of this title, and
    42  every three years thereafter, the department shall  designate  at  least
    43  ten  additional toxic substances, unless it determines there are not ten
    44  chemicals that meet the definition of toxic substances. If  the  depart-
    45  ment  determines there are not ten toxic substances that meet such defi-
    46  nition, it shall publish a detailed statement of  findings  and  conclu-
    47  sions supporting such determination.
    48    4.  Within  one  hundred eighty days of designating a toxic substance,
    49  the department shall adopt regulations to prohibit the newly  designated
    50  toxic  substance  in packaging, with an effective date no later than two
    51  years after such regulations are finalized.
    52    6. Any producer that violates this section shall be subject to a  fine
    53  for  each  violation not to exceed twenty-five thousand dollars for each
    54  violation.
    55  § 27-3319. Biennial producer responsibility program report.

        A. 10185                           15
 
     1    1. Beginning one year after the implementation of  the  producer  plan
     2  pursuant to section 27-3305 of this title, and every two years thereaft-
     3  er,  the  department  shall  generate  a producer responsibility program
     4  report.
     5    2. The report shall include, at a minimum, the following information:
     6    (a)  a  list of all participating producers and the brands of products
     7  associated with those producers;
     8    (b) a baseline report of the number of units of packaging and type  of
     9  packaging  products,  both  non-reusable  and  reusable, that were sold,
    10  offered for sale, or distributed into the state;
    11    (c) a list of all materials that are readily-recyclable in the state;
    12    (d) results of an audit of inbound and  outbound  recyclable  material
    13  processed and sold within the state;
    14    (e) a waste characterization study that specifies the quantity in tons
    15  of packaging material in the waste stream according to types of uses;
    16    (f)  a statewide litter survey that identifies the quantity of packag-
    17  ing material in litter according to types of packaging material and  the
    18  brands which produce the material;
    19    (g)  a list of the amount of packaging material and packaging material
    20  type sold or offered for sale within the state that year;
    21    (h) a description of all funding issued pursuant to the plan; and
    22    (i) the compliance of producers with the toxic substances  prohibition
    23  provided in section 27-3317 of this title.
    24  § 27-3321. Producer compliance information.
    25    1.  The  department  shall  make  available on its publicly accessible
    26  website a regularly updated list of  UPCs  of  products  for  which  the
    27  department  has determined the producer has complied with all applicable
    28  requirements of this title and a list of producers and,  where  applica-
    29  ble,  specific  products  and  the UPCs of those products, for which the
    30  department has determined the producer has not complied with all  appli-
    31  cable requirements of this title.
    32    2.  Each  producer  shall annually provide to the department a certif-
    33  icate of compliance signed by an authorized official  stating  that  all
    34  packaging  materials meet the requirements of this title provided howev-
    35  er, where compliance is achieved under an exemption provided in  section
    36  27-3305  of  this  title, the certificate shall state the specific basis
    37  upon which the exemption is claimed.
    38  § 27-3323. Enforcement.
    39    1. The department  may  bring  an  administrative  enforcement  action
    40  against  any producer or other entity to enjoin activity in violation of
    41  any provision of this title, and to  assess  and  recover  penalties  as
    42  provided in this title.
    43    2. The office of the attorney general may bring an action in any court
    44  of competent jurisdiction to enjoin any violation of the requirements of
    45  this title, and to recover penalties as provided in this title.
    46    3. All penalties recovered pursuant to this section shall be deposited
    47  in the packaging responsibility fund.
    48  § 27-3325. Labeling.
    49    1.  Producers  shall  indicate on all packaging material sold, offered
    50  for sale, or distributed for sale in or into the state either:
    51    (a) the percentage of post-consumer recycled material;
    52    (b) whether the packaging material is readily-recyclable  and  how  to
    53  recycle such unit; or
    54    (c) whether the unit is compostable.
    55    2. Such labels shall be in a form deemed appropriate by the department
    56  pursuant to regulations.

        A. 10185                           16
 
     1    3.  All  packaging  material  sold in the state shall conform with the
     2  labeling requirements in this section within two years of the  effective
     3  date  of  this  title.  Packaging that does not meet the requirements of
     4  this section may not be sold, offered for sale, or distributed for  sale
     5  into the state.
     6  § 27-3327. Regulations.
     7    1.  The department shall promulgate regulations as necessary to imple-
     8  ment and administer this title.
     9    2. The department shall solicit input from interested parties  in  the
    10  development  of  any  draft regulations to implement this title, solicit
    11  public comment on such draft regulations for a period of at least  sixty
    12  days, and hold at least one public hearing on such draft regulations.
    13    3.  The  regulations  adopted by the department pursuant to this title
    14  shall include, at a minimum:
    15    (a)  a  process  for  annually  determining  a  schedule  of  producer
    16  payments, which shall include, but not be limited to, provisions regard-
    17  ing the timing of producer payments.
    18    (i)  The payment schedule adopted under this paragraph shall delineate
    19  criteria to be used  to  adjust  producer  payments  in  a  manner  that
    20  complies with section 27-3311 of this title; and
    21    (ii)  Shall  include a description of the methods to be used to deter-
    22  mine the amount reported for each type of packaging material  associated
    23  with its products.
    24    (b)  a  process  for  a producer or producers that are unable to fully
    25  satisfy the reporting requirements due to a failure to obtain sufficient
    26  information regarding  the  characteristics  of  the  packaging  of  the
    27  producer's  products that are sold, offered for sale, or distributed for
    28  sale in or into the state to, alternatively, report to the department an
    29  estimate of the total amount of such packaging based on unit quantities,
    30  as long as such alternative reporting includes a description of  methods
    31  used by the producer to calculate the estimate;
    32    (c)  a process for determining on an annual basis those types of pack-
    33  aging materials that are readily-recyclable which  shall  at  a  minimum
    34  involve  consultation  with  the municipalities and recycling establish-
    35  ments and shall include a transitional period between the time that  the
    36  type  of  packaging material is determined to be recyclable or to not be
    37  recyclable and the time that such determination shall be in  effect  for
    38  the purposes of calculating producer payments;
    39    (d) requirements for the assessment of program performance, including:
    40    (i)  the  non-reusable  packaging  reduction requirements set forth in
    41  section 27-3313 of this title;
    42    (ii) standards for reuse and refill systems to ensure they achieve the
    43  break-even point for reusable packaging;
    44    (iii) the recycling or post-consumer  recycled  material  requirements
    45  set forth in section 27-3315 of this title;
    46    (iv)  the  toxic  substances  in  packaging  requirements set forth in
    47  section 27-3317 of this title;
    48    (v) the labeling requirements set forth in  section  27-3325  of  this
    49  title; and
    50    (vi)  material-specific  recycling  rates  for  each type of packaging
    51  material for which a fee has been set pursuant  to  section  27-3311  of
    52  this title. The material specific recycling rate goals shall reflect the
    53  following recycling standards:
    54    (A)  sorted  glass shall be considered recycled if it does not require
    55  further processing before entering a glass furnace or before use in  the

        A. 10185                           17
 
     1  production  of  filtration  media, abrasive materials, glass fiber insu-
     2  lation or construction;
     3    (B)  sorted  metal shall be considered recycled if it does not require
     4  further processing before entering a smelter or furnace;
     5    (C) sorted paper shall be considered recycled if it does  not  require
     6  further processing before entering a pulping operation; and
     7    (D)  plastic  separated  by polymer shall be considered recycled if it
     8  does not require further processing  before  entering  a  pelletization,
     9  extrusion  or  molding operation, or in the case of plastic flakes, does
    10  not require further processing before use in a final product;
    11    (e) requirements for the producer to conduct representative audits  of
    12  recyclable  material  processed  and  sold  by  facilities  that process
    13  recyclable material generated in the state,  of  municipal  solid  waste
    14  disposed  of  in the state, and waste littered in the state, which shall
    15  include, at minimum:
    16    (i) provisions regarding the sampling techniques to be used  in  those
    17  audits, which must include random sampling; and
    18    (ii) for audits of recyclable materials, provisions regarding:
    19    (A) how such audits shall be designed to collect information regarding
    20  the extent to which recycled material processed and sold by those facil-
    21  ities  reflects the tons of each type of packaging material collected in
    22  the state for recycling and the amount of each type of packaging materi-
    23  al recycled in the state, as well as the  ultimate  destination  of  and
    24  intended use for such recycled material;
    25    (B)  how  such  audits shall be designed so that information collected
    26  through the audit of one facility shall not be used to infer information
    27  about a different facility that  uses  different  processing  equipment,
    28  different  sorting  processes,  or  different staffing levels to conduct
    29  processing;
    30    (C) for audits of municipal solid waste, provisions regarding how such
    31  audits will be designed to collect information regarding the  types  and
    32  amount,  by  weight, of packaging in the waste stream and the percentage
    33  by weight of the waste stream that is composed of packaging; and
    34    (D) for audits of waste littered in the  state,  provisions  regarding
    35  how  such  audits  will be designed to collect information regarding the
    36  packaging material type by amount, weight, in sampled litter,  identifi-
    37  cation  of the producer or producers of the packaging in sampled litter,
    38  if identifiable, and an evaluation based on those audits  regarding  the
    39  areas of the state in which litter accumulation is greatest;
    40    (f)  a  process  by  which the producer or producers shall develop and
    41  submit for department review and a process by which the department shall
    42  review and approve or deny:  (i)  a  proposed  investment  in  recycling
    43  infrastructure  and education and (ii) a proposed investment in reusable
    44  or refillable infrastructure and education. The process shall set  forth
    45  the  manner  in  which the producer or producers are required to solicit
    46  and incorporate input in the development of  proposed  investments  from
    47  producers, recycling establishments, and municipalities;
    48    (g)  a process for soliciting information necessary for, and a process
    49  for rendering a determination regarding:
    50    (i) a producer's compliance with the non-reusable packaging  reduction
    51  requirements of section 27-3313 of this title;
    52    (ii) a producer's compliance with the reuse and refill system require-
    53  ments of section 27-3313 of this title;
    54    (iii)  a  producer's  compliance  with  the recycling or post-consumer
    55  recycled material requirements of section 27-3315 of this title;

        A. 10185                           18

     1    (iv) a producer's compliance with the toxic  substances  in  packaging
     2  requirements of section 27-3317 of this title; and
     3    (v)  a producer's compliance with the labeling requirements of section
     4  27-3325 of this title;
     5    (h) a process for determining  how  the  producer  or  producers  will
     6  distribute funds to municipalities; and
     7    (i)  a  process  for determining the minimum number of reuse or refill
     8  cycles required for each type of packaging  material  to  be  considered
     9  reusable or refillable, pursuant to section 27-3313 of this title.
    10    § 2. The state finance law is amended by adding a new section 92-kk to
    11  read as follows:
    12    § 92-kk. Packaging responsibility fund. 1. There is hereby established
    13  in  the  joint  custody  of  the comptroller and the commissioner of the
    14  department of taxation and finance a special fund to  be  known  as  the
    15  packaging responsibility fund.
    16    2.  Such  fund  shall  consist  of all penalties collected pursuant to
    17  title thirty-three of article twenty-seven of the environmental  conser-
    18  vation  law,  and  any  other monies deposited into the fund pursuant to
    19  law.
    20    3. Moneys of the fund shall be made  available  to  fund  third-party,
    21  independent  audits  of  both  inbound  and outbound recyclable material
    22  generated in the state, disposal of both inbound and outbound materials,
    23  and litter audits. Such audits shall be conducted  at  least  every  two
    24  years  and  shall be posted on the department of environmental conserva-
    25  tion's website.
    26    § 3. The department of health shall, within one year of the  effective
    27  date  of  this  act,  examine  its rules and regulations to identify any
    28  barriers to the implementation of  refill  systems,  including  in  food
    29  production and wineries.
    30    § 4. This act shall take effect immediately.
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