New York Senate Bill 4246 (2023) - (Failed)

Covered materials and products are defined as a discrete material or category of material, regardless of recyclability, including but not limited to such material types that are flexible, foam, or rigid material, including paper, plastic, glass, metal, or multi-material, that is used for the primary, secondary, tertiary containment, protection, handling, delivery, transport, distribution, or presentation of another product that is sold, offered for sale, imported, or distributed in the state, including through an internet transaction.

Containers and packaging are further defined to include single-use plastic products that frequent the residential waste stream or are plastic products that have the effect of disrupting recycling processes, including, but not limited to, single-use plastic items such as straws, utensils, cups, plates, and plastic bags.

All printed paper including, but not limited to flyers, brochures, booklets, catalogs, directories, paper fiber, and writing paper are covered products.

Exclusions include:

1. Beverage containers that qualify for deposit/redemption under existing legislation
2. Newspapers and magazines
3. Medical devices and covered materials and products regulated as a drug, medical device, or dietary supplement
4. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin
5. Packaging used to contain toxic or hazardous materials

For covered materials sold or served to consumers at a physical retail location, the producer is defined as the person that manufactures the product, whether it is the manufacturer's own brand or covered materials that lacks identification of a brand. For products sold or distributed to consumers in covered materials in or into this state via remote sale or distribution, the producer of covered materials used to directly protect or contain the product is defined as the producer.

The producer of the covered materials is the person that is the licensee of a brand or trademark under which a product is sold or served to a consumer in or into this state, whether or not the trademark is registered in this state, unless the manufacturer of the covered materials has agreed to accept responsibility. Producer includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

The producer of the covered material is the person who imports the product into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the product to consumers in this state. For products sold or distributed to consumers in covered materials in or into this state via remote sale or distribution, the producer of covered materials used to ship the product to a consumer, is the person that manufacturers the shipping material.

A producer is exempt if they realize less than 1 million dollars in total gross revenue or use less than one ton of total packaging material in the prior calendar year.

Producers are required to participate, either individually or collectively in a packaging reduction and recycling program.

Producers may comply individually.

The "packaging reduction and recycling organization" or PRO is required to be a registered 501(c)(3).

Producers are responsible for all costs. Municipalities that choose to retain control of operations are reimbursed. PRO is responsible for operations where municipal service is not provided.

The program must include proposed cost coverage of sorting, collection, transportation and processing.

The program must describe the producer's public outreach education program.

The program must include administration costs.

The program must include proposed investment in market development in the state.

The program must include a proposed investment in reuse and recycling infrastructure.

Program fees will be based on various factors like material category.

Program fees must include eco-modulation. Fees must incentivize source reduction, increased recyclability, and the promotion of reuse.

Fees will be adjusted for the percentage of post-consumer recycled material content. This will be verified through an independent third party.

Fees will also be based on if the packaging material is specifically designed to be reusable or refillable and has high reuse or refill rate.

Fees will also be based on whether the covered material is readily-recyclable except that as a consequence of the packaging design, disruptive of the recycling process, or includes labels, inks, and adhesives containing heavy metals or other toxic substances that would contaminate the recycling process.

Each producer shall meet the recycling content targets 2 years after the effective date:

1. All glass containers manufactured in the state shall contain, on average, at least 35% post-consumer recycled content.
2. All paper carryout bags shall contain, on average, at least 40% post-consumer recycled content, except that a paper carryout bag that holds 8 lbs. or less shall only be required to contain, on average, at least 20%t post-consumer recycled content.
3. All plastic trash bags shall contain, on average, at least 20% post-consumer recycled content.
4. The requirements shall not apply to reusable or refillable packaging or containers.

Producers are required to meet recyclability criteria:

2 years after the effective date covered materials used by a producers shall:

1. be capable of being sorted by entities that process recyclable material generated in the state
2. have a consistent regional market for purchase, by end users in the production of new products

Covered material does not contain the following:
non-detectable pigments, including but not limited to carbon black, toxic substances as defined by the state, opaque or pigmented polyethylene terephthalate, oxo-degradable additives, including oxo-biodegradable additives, polyethylene terephthalate glycol in rigid packaging, label constructions, including adhesives, inks, materials and formats, or features that render a package detrimental or non-recyclable, DoPS - polystyrene, including EPS (expanded polystyrene, polyvinyl chloride, including polyvinylidene chloride.

Producers are required to meet packaging reduction requirements:
3 years after registration with a PRO, a producer shall reduce packaging by 10% by weight
5 years after registration with a PRO, a producer shall reduce packaging by 20% by weight
8 years after registration with a PRO, a producer shall reduce packaging by 30% by weight
10 years after registration with a PRO, a producer shall reduce packaging by 40% by weight
12 years after registration with a PRO, a producer shall reduce packaging by 50% by weight

Reductions must include: eliminating single-use packaging, including secondary or tertiary packaging, elimination or reduction of components, or by transitioning to reusable or refillable packaging systems. The reductions shall not be achieved by substituting plastic for other materials or substituting a non-recyclable material for a recyclable material.

Producers shall provide for convenient and free consumer access to collection facilities or collection services.

Within 18 months of the effective date, each PRO shall develop and submit a plan to the department.

Each PRO shall implement their plan within 6 months after approval.

Beginning one year after the effective date, a producer shall not sell, offer for sale, or distribute into the state packaging unless the producer is registered with a packaging reduction and recycling organization and in compliance.

Within sixty days of the advisory council making a recommendation to the department, the department shall make a determination to approve the plan as submitted; approve the plan with conditions; or deny the plan, with reasons for the denial.

The department shall oversee the waste reduction and reuse infrastructure fund established, which is to pay for investments in reuse and refill and waste reduction infrastructure. Each packaging reduction and recycling organization shall deposit into the fund no less than 5% of the total payments received from producers.

The program plan shall be updated every 5 years following approval of the original plan.

The department, the recycling inspector general, and the attorney general, may issue a notice of violation to, and impose an administrative civil penalty not to exceed $100,000 per day per violation on any entity not in compliance or any of the regulations the department adopts. Each product line that is sold, offered for sale, or distributed to consumers via retail commerce in the state, including through an internet transaction, shall be considered a separate violation.

Education and outreach programs shall include work with producers to label packaging material in accordance with reasonable labeling standards.

Education and outreach shall include information on the proper end-of-life management of covered products.

Education and outreach shall include how to prevent litter of covered products in the process of collection.

Education and outreach shall include recycling instructions that are consistent statewide, except as necessary to take into account differences among local laws and processing capabilities, easy to understand, and easily accessible.

The educational outreach program shall coordinate with and assist local municipal programs, municipal contracted programs, solid waste collection companies, and other entities providing services. Each packaging reduction and recycling organization shall consult with municipalities on the development of educational materials and may coordinate with municipalities on outreach and communication.

The plan must include a description of how comments of stakeholders were considered and addressed in the development of the plan, specifically the advisory board, the public and others, as well as to what extent the producers or organization specifically incorporated the advisory board's input into the plan.

No later than one year after the effective date, the commissioner shall appoint the members of the advisory council. The advisory council is composed of thirteen members, and the commissioner shall appoint at least one member from each of the following:

1. A municipality association or municipal recycling program, including an additional municipal representative from cities with a population of one million or more residents
2. A statewide environmental organization
3. A representative of an environmental justice community affected by solid waste infrastructure
4. An environmental justice organization
5. A statewide waste disposal or recycling association
6. A materials recovery facility located within the state
7. A recycling collection provider
8. A manufacturer of packaging materials utilizing post-consumer recycled content
9. A consumer advocate
10. A retailer
11. A public health specialist
12. A producer or producer responsibility organization established under this title as non-voting members

Recycling means the series of activities by which material is collected, transported, sorted, and processed; or used in industrial feedstocks in place of virgin materials to manufacture new products with minimal loss of material quality and quantity.

Recycling does not include energy recovery or energy generation by any means, combustion, gasification, incineration, pyrolysis, solvolysis, or any other chemical conversion process or creation of a hazardous substance. It also does not include landfill disposal of discarded material or discarded product component materials, including the use of materials as landfill cover.

Beginning 2 years after the promulgation of rules and regulations no person or entity shall sell, offer for sale, or distribute into the state any packaging containing any of the following toxic substances:

Ortho-phthalates, Bisphenols, Per- and polyfluoroalkyl substances (PFAS), Heavy metals and compounds, including lead, hexavalent chromium, cadmium, and mercury; Benzophenone and its derivatives; Halogenated flame retardants; Perchlorate; Formaldehyde, Toluene, Antimony and compounds, Carbon black; and, UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol).

Beginning 2 years after the promulgation of rules and regulations no person or entity shall sell, offer for sale, distribute for use in this state any packaging containing:

Polyvinyl chloride, Polystyrene, or Polycarbonate.

Beginning 3 years after the promulgation of rules and regulations and every 3 years thereafter, the department shall designate at least 10 additional toxic substances or classes of toxic substances that may no longer be sold, offered for sale, distributed for sale, or distributed for use in packaging in this state unless it determines there are not 10 chemicals that meet the definition of toxic substances. If the department determines there are not 10 toxic substances that meet such a definition, it shall publish a detailed statement of its findings and conclusions supporting such a determination.

Recycling rate means the percentage of any given packaging type that is ultimately recycled. The recycling rate for any covered material shall be calculated as the total weight of packaging that is recycled in a given year divided by the total weight of covered material generated in that year. Material losses, including contaminants and residues, accruing during collection, processing and manufacturing new products do not count as recycled and should not be in the numerator of the equation.

No person may charge a consumer point-of-sale or point of collection fee to recoup the costs associated with meeting the obligations under this legislation.

No later than one year after the effective date, the department shall complete or cause to be completed a statewide packaging reduction, reuse, and recycling needs assessment to determine the current state of packaging reuse, recycling, and disposal, and identify barriers and opportunities to reduce the amount of packaging discarded and disposed of, and increase the reusability and recyclability of packaging. The PRO will reimburse the department for the costs associated with conducting the statewide needs assessment.

The department shall maintain a list of materials and covered products that meet the standard to be considered recyclable to be used as the minimum recyclables list.

Reuse means the return of packaging back into the economic stream for use in the same kind of application intended for the original packaging, without effectuating a change in the original composition of the package, the identity of the product, or the components thereof. Reuse and refill system means a program or set of mechanisms designed to facilitate multiple uses of packaging. Mechanisms may include, but are not limited to, deposits, incentives, curbside collection, collection kiosks, refill stations, dishwashing facilities, and redistribution networks. Reusable or refillable packaging and containers means packaging material and containers that are specifically designed and manufactured to maintain its shape and structure, and be materially durable for repeated sanitizing, washing, and reuse.