STATE OF NEW YORK
        ________________________________________________________________________

                                         1185--A

                               2021-2022 Regular Sessions

                    IN SENATE

                                     January 8, 2021
                                       ___________

        Introduced by Sens. KAMINSKY, HINCHEY, COMRIE, HOYLMAN, JACKSON, KAPLAN,
          KRUEGER,  LIU,  MAY,  RAMOS, REICHLIN-MELNICK, SERRANO, THOMAS -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee  on Environmental Conservation -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee

        AN  ACT  to  amend  the  environmental  conservation law, in relation to
          establishing the extended producer responsibility act

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Legislative  intent.  The legislature finds the weight of
     2  waste generated in New York is a threat to the environment. The legisla-
     3  ture further finds and declares that it is in the public interest of the
     4  state of New York for covered material and product producers  to  under-
     5  take the responsibility for the development and implementation of strat-
     6  egies  to  promote recycling, reuse and recovery of covered material and
     7  products through investments in the  end-of-product-life  management  of
     8  products, printed paper, and product packaging.
     9    §  2.  Article  27 of the environmental conservation law is amended by
    10  adding a new title 33 to read as follows:
    11                                  TITLE 33
    12                    EXTENDED PRODUCER RESPONSIBILITY ACT
    13  Section 27-3301. Definitions.
    14          27-3303. Producer responsibilities.
    15          27-3305. Funding mechanism.
    16          27-3307. Producer responsibility plan.
    17          27-3309. Producer responsibility plan approval.
    18          27-3311. Collection and convenience.
    19          27-3313. Outreach and education.
    20          27-3315. Reporting requirements and audits.
    21          27-3317. Antitrust protections.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01205-02-1

        S. 1185--A                          2

     1          27-3319. Penalties.
     2          27-3321. State preemption.
     3          27-3323. Authority to promulgate rules and regulations.
     4          27-3325. Severability.
     5  § 27-3301. Definitions.
     6    1.  "Covered  materials and products" shall mean any part of a package
     7  or  container,  regardless  of  recyclability  or  compostability,  that
     8  includes  material  that is used for the containment, protection, handl-
     9  ing, delivery, and presentation of goods  that  are  sold,  offered  for
    10  sale,  or  distributed  to  consumers in the state, including through an
    11  internet transaction.  Covered materials and products include,  but  are
    12  not limited to, the following classes of materials:
    13    (a) Containers and packaging: this class includes all flexible foam or
    14  rigid  material,  including  but  not limited to paper, carton, plastic,
    15  glass, or metal, and any combination of such materials that:
    16    (i) is used to contain, protect, wrap or present products at any stage
    17  in the movement of the product from the responsible party to  the  ulti-
    18  mate user or consumer, including tertiary packaging used for transporta-
    19  tion or distribution directly to a consumer;
    20    (ii)  is  intended  for  a  single  or  short-term use and designed to
    21  contain,  protect  or  wrap  products,  including  secondary   packaging
    22  intended for the consumer market; or
    23    (iii)  does not include packaging used for the long-term protection or
    24  storage of a product or with a life of not less than five years.
    25    (b) Paper products: this class includes:
    26    (i) paper and other cellulosic fibers, whether or not they are used as
    27  a medium for text or images, except books, and materials in the  newspa-
    28  pers class of materials;
    29    (ii)  containers  or packaging used to deliver printed matter directly
    30  to the ultimate consumer or recipient;
    31    (iii) paper of any description, including but not limited to:
    32    (1) flyers;
    33    (2) brochures;
    34    (3) booklets;
    35    (4) catalogs;
    36    (5) telephone directories;
    37    (6) newspapers;
    38    (7) magazines;
    39    (8) paper fiber; and
    40    (9) paper used for writing or any other purpose.
    41    (c) Plastics: this class includes any plastic  as  determined  by  the
    42  department including, but not limited to:
    43    (i) rigid plastics:
    44    (1) polyethylene terephthalate (PET);
    45    (2) polyethylene (PE);
    46    (3) polyvinyl chloride (PVC);
    47    (4) polypropylene (PP);
    48    (5) polystyrene (PS);
    49    (6) poly coated fiber;
    50    (7) multi-layered plastics;
    51    (8) other (BPA, Compostable Plastics, Polycarbonate and LEXAN);
    52    (ii) flexible plastics:
    53    (1) polyethylene (PE);
    54    (2) polyvinyl chloride (PVC);
    55    (3) polypropylene (PP);
    56    (4) poly coated fiber;

        S. 1185--A                          3

     1    (5) multi-layered plastics;
     2    (6) other (BPA, Compostable Plastics, Polycarbonate and LEXAN).
     3    (d)  For  the  purpose of this title, the products covered designation
     4  does not include the following:
     5    (i) paper products that could become unsafe or unsanitary  to  recycle
     6  by virtue of their anticipated use;
     7    (ii) literary, text, and reference bound books; and
     8    (iii)  beverage containers as defined in section 27-1003 of this arti-
     9  cle.
    10    2. "Curbside recycling" means a recycling program that  serves  single
    11  and multi-family residential units, schools, state or local agencies, or
    12  institutions  that  is  operated  by  a  municipality  or  pursuant to a
    13  contract with the municipality, private entity, or other  public  agency
    14  or through approved local solid waste management plans.
    15    3.  "Post-consumer  recycled  content"  means the content of a product
    16  made of recycled materials derived from post-consumer recycled materials
    17  or feedstock.
    18    4. "Producer" means: (a) the person who manufactures the covered mate-
    19  rial or product under such person's own name or brand and who  sells  or
    20  offers for sale the covered material or product in the state; or
    21    (b)  the  person  who  imports  the covered material or product as the
    22  owner or licensee of a trademark or brand under which the covered  mate-
    23  rial or product is sold or distributed in the state; or
    24    (c)  the person or company that offers for sale, sells, or distributes
    25  the covered material or product in the state.
    26    A producer shall not include a  municipality  or  a  local  government
    27  planning  unit,  or  a  registered  501(c)(3) charitable organization or
    28  501(c)(4) social welfare organization.
    29    5.  "Producer  responsibility  organization"  means  a  not-for-profit
    30  organization  designated  by  a group of producers to act as an agent on
    31  behalf of each producer to develop and implement a producer responsibil-
    32  ity plan, or a registered 501(c)(3) charitable organization or 501(c)(4)
    33  social welfare organization
    34    6. "Readily-recyclable" means packaging that can be sorted by entities
    35  processing recyclables from New York and for which, during the  previous
    36  two  calendar  years,  there  was a consistent market, meaning recyclers
    37  were willing to accept sorted material at the door of their  facilities.
    38  Readily-recyclable does not include material types that recyclers accept
    39  in  low  quantities or sort out of material during additional processing
    40  steps; if material recyclers do not desire a full  bale  of  a  specific
    41  material type, that material type is not readily recyclable. Readily-re-
    42  cyclable  also does not include materials that contain harmful chemical,
    43  physical, biological, or radiological substances that pose a  threat  to
    44  human health or the environment for its intended or like manner of use.
    45    7.  "Recycling" means to separate, dismantle or process the materials,
    46  components or commodities contained in covered products for the  purpose
    47  of  preparing  the materials, components or commodities for use or reuse
    48  in new products or  components.  "Recycling"  does  not  include  energy
    49  recovery  or  energy  generation  by  means  of  combustion, or landfill
    50  disposal of discarded covered products or  discarded  product  component
    51  materials.
    52    8. "Recycling rate" means the percentage of discarded covered products
    53  that  is  managed  through recycling or reuse, as defined by this title,
    54  and is computed by dividing the amount  of  discarded  covered  products
    55  collected  and  recycled  or  reused  by  the  total amount of discarded
    56  covered products collected over a program year.

        S. 1185--A                          4

     1    9. "Reuse" means donating or selling a discarded covered product  back
     2  into  the  market  for  its  original  intended  use, when the discarded
     3  covered product retains its original performance characteristics and can
     4  be used for its original purpose.
     5    10.  "Retailer"  means a person who sells or offers for sale a product
     6  to a consumer, including sales made through an internet  transaction  to
     7  be delivered to a consumer in the state.
     8  § 27-3303. Producer responsibilities.
     9    1.  Within  three  years  after  the  effective date of this title, no
    10  producer shall sell, offer for sale, or distribute covered materials  or
    11  products  for use in New York unless the producer, or a producer respon-
    12  sibility organization acting as their designated agent, has  a  producer
    13  responsibility  plan  approved  by the department. Producers may satisfy
    14  participation obligations individually or jointly with  other  producers
    15  or through a producer responsibility organization.
    16    2.  Within one year after the department approves a producer responsi-
    17  bility plan, producers shall be required to meet the  minimum  post-con-
    18  sumer  recycled  material  content rate and minimum recycling rate for a
    19  covered material or product as approved by the department in the produc-
    20  er responsibility plan.
    21    3. A producer shall be exempt from the requirements of this  title  if
    22  the producer:
    23    (a) Generates less than one million dollars in annual revenues;
    24    (b)  Generates  less  than  one  ton  of covered materials or products
    25  supplied to New York state residents per year; or
    26    (c) Operates as a single point of retail sale and is not  supplied  or
    27  operated as part of a franchise.
    28    4.  Retailers  that are not producers are exempt from the requirements
    29  of this title.
    30    5. Producers may comply individually or may form a producer  responsi-
    31  bility  organization and discharge their responsibilities to such organ-
    32  ization.
    33  § 27-3305. Funding mechanism.
    34    1. A producer or producer responsibility organization acting as  their
    35  agent shall establish program participation charges, such as through the
    36  use  of eco-modulated fees, for producers through the producer responsi-
    37  bility plan pursuant to section 27-3307 of this  title  which  shall  be
    38  sufficient to cover all program costs.
    39    2.  A  producer  responsibility  organization  shall structure program
    40  charges to provide producers with financial incentives, to reward  waste
    41  reduction  and recycling compatibility innovations and practices, and to
    42  discourage designs or practices that  increase  costs  of  managing  the
    43  products. The producer responsibility organization may adjust charges to
    44  be  paid  by participating producers based on factors that affect system
    45  costs. At a minimum, charges shall be variable based on:
    46    (a) Costs to provide curbside collection or other  level  of  consumer
    47  service  that is, at minimum, as convenient as curbside collection or as
    48  convenient as the previous recycling collection schema in the particular
    49  jurisdiction or as convenient as the previous refuse  collection  schema
    50  in  the  particular  jurisdiction  should  recycling  collection  not be
    51  provided;
    52    (b) Costs to process a producer's covered materials  or  products  for
    53  acceptance by secondary material markets;
    54    (c)  Whether the covered material or product would typically be readi-
    55  ly-recyclable except that as a consequence of the product's design,  the
    56  product  has the effect of disrupting recycling processes or the product

        S. 1185--A                          5

     1  includes labels, inks, and adhesives containing heavy  metals  or  other
     2  hazardous  waste  as defined by the department in regulations that would
     3  contaminate the recycling process;
     4    (d)  Whether  the  covered  materials  or  product are nonfood contact
     5  containers and other nonfood  contact  packaging  that  is  specifically
     6  designed to be reusable or refillable and has high reuse or refill rate.
     7    3.  The  charges  shall be adjusted based upon the percentage of post-
     8  consumer recycled material content and such percentage of  post-consumer
     9  recycled content shall be verified either by the producer responsibility
    10  organization  through  an independent third party approved or designated
    11  by the department to perform verification services to ensure  that  such
    12  percentage  exceeds the minimum requirements in the covered material, as
    13  long as the recycled content does not disrupt the potential  for  future
    14  recycling.
    15    4.  A  producer  responsibility  organization shall be responsible for
    16  calculating and dispersing funding for municipal services utilized by  a
    17  producer  responsibility  organization  if the municipality elects to be
    18  compensated by the producer responsibility organization in the recovery,
    19  recycling, and processing of covered materials,  whether  such  services
    20  are  provided  directly  by  the  municipality  or  through a contracted
    21  service provider. The program funding mechanism shall be  based  on  the
    22  cost  of residential curbside collection, including the cost of curbside
    23  containers where relevant, as well as processing cost for each  readily-
    24  recyclable  material,  cost  of handling non-readily recyclable material
    25  types collected as part of a recycling operation, transportation cost of
    26  recycling for each material type, and any other cost factors  as  deter-
    27  mined  by  the  department.  To  facilitate  the producer responsibility
    28  organization's determination of the  cost  of  recycling,  participating
    29  municipalities shall report data related to their costs and the value of
    30  materials  to  the  producer  responsibility organization.   Cost calcu-
    31  lations shall take into consideration revenue generated from  recyclable
    32  materials.
    33    5. No producer may charge a point-of-sale or other fee to consumers to
    34  recoup the costs of meeting producer obligations under this title.
    35    6.  Nothing  in this title shall require a municipality to participate
    36  in a producer responsibility program.
    37    7. The department shall make such rules and regulations which  may  be
    38  necessary  for  a  producer  responsibility  organization to develop and
    39  manage a funding mechanism and activity-based costs.
    40  § 27-3307. Producer responsibility plan.
    41    1. Producers, or a  producer  responsibility  organization  acting  as
    42  their designated agent, shall develop and submit a producer responsibil-
    43  ity  plan  to  the department no later than one year after the effective
    44  date of this title. Such plan shall be  for  five  years  and  shall  be
    45  reviewed  and  updated  every  five  years following the approval of the
    46  original plan. The department shall have the discretion to  require  the
    47  plan  to  be  reviewed  or  revised prior to the five year period if the
    48  department has cause to believe the minimum post-consumer recycled mate-
    49  rial content rates, minimum recycling rates, or  other  factors  of  the
    50  plan  are not being met or followed by the producer, or producer respon-
    51  sibility organization, or if there has been a  change  in  circumstances
    52  that  warrants  revision  of the plan. The submitted plan shall include,
    53  but not be limited to:
    54    (a) contact information of the  producer  responsibility  organization
    55  and the producer or producers covered under the plan;

        S. 1185--A                          6

     1    (b) a description of how comments of stakeholders were considered and,
     2  if applicable, addressed in the development of the plan;
     3    (c)  a  comprehensive  list  of  the covered materials or products for
     4  which the producer or producer responsibility organization is  responsi-
     5  ble for;
     6    (d)  a  funding mechanism that allocates the costs to the producers to
     7  meet the requirements of this title and is sufficient to cover the  cost
     8  of  registering,  operating  and  updating  the  plan, and maintaining a
     9  financial reserve sufficient  to  operate  the  program  in  a  fiscally
    10  prudent and responsible manner;
    11    (e)  a  description  of  the  process for municipalities to recoup all
    12  reasonable costs, both operational and capital,  from  the  producer  or
    13  producer  responsibility  organization  for  the  activity-based  costs,
    14  including,  as  applicable,  any  administrative,  sorting,  collection,
    15  transportation,  public  education, or processing costs, if the producer
    16  responsibility organization uses existing  services  through  a  munici-
    17  pality;
    18    (f) a detailed description of how the producer or the producer respon-
    19  sibility  organization,  consulted  with stakeholders, including munici-
    20  palities, private sector haulers, and material recovery facilities,  and
    21  processors  to  seek their input in the development of the plan prior to
    22  its submission to the department, and to what extent  the  producers  or
    23  the  producer  responsibility organization specifically incorporated the
    24  stakeholders' input into the plan.  Producers or the producer  responsi-
    25  bility  organization shall provide such stakeholders with an opportunity
    26  to review and comment upon the draft plan prior to its submission to the
    27  department. Producers or the producer responsibility organization  shall
    28  make  an assessment of comments received and shall provide a summary and
    29  an analysis of the issues raised by stakeholders and significant changes
    30  suggested by any such comments, a  statement  of  the  reasons  why  any
    31  significant   changes  were  not  incorporated  into  the  plan,  and  a
    32  description of any changes  made  to  the  plan  as  a  result  of  such
    33  comments.
    34    (g)  a  proposed  minimum post-consumer recycled material content rate
    35  requirement and minimum recycling rate for covered materials.  The mini-
    36  mum recycling rate shall be varied for each  covered  recycled  material
    37  and shall include paper products, glass, metal, and plastic;
    38    (h)  a  description  of a public education program pursuant to section
    39  27-3313 of this title;
    40    (i) how the producers, or the  producer  responsibility  organization,
    41  will  work  with  existing  waste haulers, material recovery facilities,
    42  recyclers, and municipalities to operate or  expand  current  collection
    43  programs to address material collection methods;
    44    (j)  a  description  of  how  producers or the producer responsibility
    45  organization will use open, competitive, and fair procurement  practices
    46  should  they  directly  enter  into  contractual agreements with service
    47  providers, including municipalities and private entities;
    48    (k) a description of how a municipality will participate, on a  volun-
    49  tary  basis, with collection and how existing municipal waste collection
    50  infrastructure will be used;
    51    (l) a description of how  the  producer,  or  producer  responsibility
    52  organization,  plans  to  meet the convenience requirements set forth in
    53  this title;
    54    (m) a description of how  the  producer,  or  producer  responsibility
    55  organization, will meet or exceed the minimum recycling rate for a prod-
    56  uct;

        S. 1185--A                          7

     1    (n) a description of the process for end-of-life management, including
     2  recycling  and  disposal,  using  environmentally sound management prac-
     3  tices;
     4    (o)  a  description of how a producer responsibility organization will
     5  work with producers to  reduce  packaging  through  product  design  and
     6  program innovations;
     7    (p)  a  description of how a producer responsibility organization will
     8  invest in reuse and recycling infrastructure and market  development  in
     9  the state, including, but not limited to, installing or upgrading equip-
    10  ment to improve sorting of covered products or mitigating the impacts of
    11  covered products to other commodities at existing sorting and processing
    12  facilities,  and capital expenditures for new technology, equipment, and
    13  facilities.
    14    (q) a process to address concerns and  questions  from  customers  and
    15  consumers; and
    16    (r) any other information as specified by the department through regu-
    17  lations.
    18    2.  The  department  shall  promulgate  a registration fee schedule to
    19  cover administrative costs, including a schedule for  re-evaluating  the
    20  fee structure on an annual basis.
    21  § 27-3309. Producer responsibility plan approval.
    22    1.  No  later  than  ninety  days after the submission of the producer
    23  responsibility plan,  the  department  shall  make  a  determination  to
    24  approve the plan as submitted; approve the plan with conditions; or deny
    25  the  plan.  The  department  shall  consider the following in whether to
    26  approve a plan:
    27    (a) the plan adequately addresses all elements  described  in  section
    28  27-3307  of  this  title  with sufficient detail to demonstrate that the
    29  objective of the plan will be met;
    30    (b) the producer has undertaken satisfactory consultation with  stake-
    31  holders, has provided an opportunity for stakeholder input in the imple-
    32  mentation and operation of the plan prior to submission of the plan, and
    33  has  thoroughly  described how the stakeholders' input will be addressed
    34  by and incorporated into the plan pursuant to paragraph (f) of  subdivi-
    35  sion one of section 27-3307 of this title;
    36    (c)  the plan adequately provides for: (i) the producer collecting and
    37  funding the costs of collecting and processing products covered  by  the
    38  plan  or reimbursing a municipality; (ii) the funding mechanism to cover
    39  the entire cost of the  program;  (iii)  convenient  and  free  consumer
    40  access to collection facilities or collection services; (iv) a formulaic
    41  system for equitable distribution of funds; and (v) an evaluation system
    42  for  the  fee  structure, which shall be evaluated on an annual basis by
    43  the producer responsibility organization and re-submitted to the depart-
    44  ment annually;
    45    (d) the plan takes into consideration a post-consumer content rate and
    46  recycling rate that will create or enhance markets for recycled  materi-
    47  als  and there is a plan to adjust the minimum rates on an annual basis.
    48  Such rates shall take  into  consideration  current  state  and  federal
    49  rates;
    50    (e) the plan creates a convenient system for consumers to recycle that
    51  is, at minimum, as convenient as curbside collection or as convenient as
    52  the previous waste collection schema in the particular jurisdiction.
    53    (f) The department may establish additional plan requirements in addi-
    54  tion to those identified herein to fulfill the intent of this title.
    55    2.  No  later than six months after the date the plan is approved, the
    56  producer, or producer responsibility organization, shall  implement  the

        S. 1185--A                          8

     1  approved  plan.  The  department may rescind the approval of an approved
     2  plan at any time.
     3  § 27-3311. Collection and convenience.
     4    A  producer  or producer responsibility organization shall provide for
     5  widespread, convenient, and equitable access to collection opportunities
     6  for the covered products  identified  under  the  producer  or  producer
     7  responsibility organization's plan.  A producer responsibility organiza-
     8  tion  shall  ensure  services  continue  for all single and multi-family
     9  residential units that a municipality serves as of the effective date of
    10  this article, either directly or through a contract to provide services,
    11  and that such services are continued  through  the  plan.    A  producer
    12  responsibility  organization  may  rely  on  a range of means to collect
    13  various categories of covered materials or products including,  but  not
    14  limited  to, curbside collection, depot drop-off, and retailer take-back
    15  so long as covered materials and  products  collection  options  include
    16  curbside  or  multi-family  recycling  collection  services  provided by
    17  municipal  programs,  municipal   contracted   programs,   solid   waste
    18  collection  companies,  or  other approved entities as identified by the
    19  department if:
    20    1. The category of covered materials  and  products  is  suitable  for
    21  residential  curbside recycling collection and can be effectively sorted
    22  by the facilities receiving the curbside collected material;
    23    2. The category of paper is suitable for residential curbside  recycl-
    24  ing collection and can be effectively sorted by the facilities receiving
    25  the curbside collected material;
    26    3.  The  recycling  facility  providing processing and sorting service
    27  agrees to include the category of covered materials and products  as  an
    28  accepted material;
    29    4.  The covered materials and products category is not handled through
    30  a deposit and return  scheme  or  buy  back  system  that  relies  on  a
    31  collection system other than curbside or multi-family collection; and
    32    5.  The  provider of the residential curbside recycling service agrees
    33  to the  producer  responsibility  organization  service  provider  costs
    34  arrangement.
    35  § 27-3313. Outreach and education.
    36    1.  The  producer,  or  producer  responsibility  organization,  shall
    37  provide effective outreach, education, and communications  to  consumers
    38  throughout New York state regarding:
    39    (a) proper end-of-life management of covered products and materials;
    40    (b)  the location and availability of curbside and drop-off collection
    41  opportunities;
    42    (c) how to prevent litter of covered products materials; and
    43    (d) recycling and composting instructions that are: consistent  state-
    44  wide,  except  as necessary to take into account differences among local
    45  laws and processing capabilities; easy to understand; and easily  acces-
    46  sible.
    47    2.  The outreach and education required pursuant to subdivision one of
    48  this section shall:
    49    (a) be designed to achieve the management goals  of  covered  products
    50  under  this  title, including the prevention of contamination of covered
    51  products;
    52    (b) incorporate, at  a  minimum,  electronic,  print,  web-based,  and
    53  social  media  elements  that  municipalities  could  utilize  at  their
    54  discretion;
    55    (c) be coordinated across programs to avoid confusion for consumers;

        S. 1185--A                          9

     1    (d) include, at a minimum:  consulting  on  education,  outreach,  and
     2  communications with local governments and other stakeholders; coordinat-
     3  ing  with  and  assisting local municipal programs, municipal contracted
     4  programs, solid waste collection companies, and other entities providing
     5  services;  and  developing  and  providing outreach and education to the
     6  diverse ethnic populations in the state; and
     7    (e) a plan to work  with  participating  producers  to  label  covered
     8  products  with  information  to assist consumers in responsibly managing
     9  and recycling covered products.
    10    3. The producer or producer responsibility organization shall  consult
    11  with  municipalities on the development of educational materials and may
    12  coordinate with municipalities on outreach and communication.
    13    4. The department shall determine the effectiveness  of  outreach  and
    14  education  efforts  under  this section to determine whether changes are
    15  necessary to improve those outreach and education  efforts  and  develop
    16  information  that  may be used to improve outreach and education efforts
    17  under this section.
    18    5. The producer responsibility organization shall undertake  outreach,
    19  education,  and communications that assist in attaining or exceeding the
    20  minimum post-consumer content and recovery rates.
    21  § 27-3315. Reporting requirements and audits.
    22    1. On or before one year after a producer or  producer  responsibility
    23  organization's  first  plan  is  approved, and annually thereafter, each
    24  producer, or producer responsibility organization acting as their desig-
    25  nated agent, shall submit a report to the commissioner that details  the
    26  program  for the prior year's program. The report shall be posted on the
    27  department's website and on the website of  the  producer,  or  producer
    28  responsibility organization acting as their designated agent. Such annu-
    29  al report shall include:
    30    (a)  a  detailed description of the methods used to collect, transport
    31  and  process  covered  materials  and   products   including   detailing
    32  collection  methods made available to consumers and an evaluation of the
    33  program's collection convenience;
    34    (b) a description on the status of achieving the  post-consumer  recy-
    35  cled  content  requirements  as  set  forth in the plan pursuant to this
    36  title, and what efforts are proposed in the event of failing to  achieve
    37  such goals;
    38    (c)  the overall weight of covered materials and products collected in
    39  the state by material type;
    40    (d) the weight and type of covered materials and products collected in
    41  the state by the method of disposition by material type;
    42    (e) the total cost of implementing the program, as  determined  by  an
    43  independent financial audit, as performed by an independent auditor;
    44    (f)  information  regarding the independently audited financial state-
    45  ments detailing all  payments  received  and  issued  by  the  producers
    46  covered by the approved plan;
    47    (g) a copy of the independent audit;
    48    (h)  a detailed description of whether the program compensates munici-
    49  palities, solid waste collection, sorting and processing facilities, and
    50  other approved entities for their recycling efforts  and  other  related
    51  services provided by the above entities;
    52    (i)  samples  of  all  educational  materials provided to consumers or
    53  other entities;
    54    (j) a detailed list of efforts undertaken and  an  evaluation  of  the
    55  methods used to disseminate such materials including recommendations, if

        S. 1185--A                         10

     1  any,  for  how the educational component of the program can be improved;
     2  and
     3    (k) A detailed description of investments made in reuse and  recycling
     4  infrastructure and market development.
     5    2.  The department shall not require public reporting of any confiden-
     6  tial information that the department finds to be  protected  proprietary
     7  information.  For purposes of this title, protected proprietary informa-
     8  tion shall mean information that, if made public, would divulge  compet-
     9  itive  business information, methods or processes entitled to protection
    10  as trade secrets of such producer or producer  responsibility  organiza-
    11  tion or information that would reasonably hinder the producer or produc-
    12  er  responsibility  organization's  competitive advantage in the market-
    13  place.
    14  § 27-3317. Antitrust protections.
    15    A producer responsibility organization, including  officers,  members,
    16  employees and agents thereof, shall be immune from liability for conduct
    17  under state laws relating to antitrust, restraint of trade, unfair trade
    18  practices,  and other regulation of trade or commerce only to the extent
    19  necessary to plan and implement compliance with this section.
    20  § 27-3319. Penalties.
    21    1. Except as otherwise provided in this section, any person or  entity
    22  that  violates  any  provision  of  or fails to perform any duty imposed
    23  pursuant to this title or any rule or  regulation  promulgated  pursuant
    24  thereto,  or  any term or condition of any registration or permit issued
    25  pursuant thereto, or any final determination or order of the commission-
    26  er made pursuant to this article or article seventy-one of this  chapter
    27  shall  be  liable for a civil penalty not to exceed five hundred dollars
    28  for each violation and an additional  penalty  of  not  more  than  five
    29  hundred dollars for each day during which such violation continues.
    30    2.  (a)  Any  producer  or  producer  responsibility  organization who
    31  violates any provision of or fails to perform any duty imposed  pursuant
    32  to this title or any rule or regulation promulgated pursuant thereto, or
    33  any  term  or  condition  of  any registration or permit issued pursuant
    34  thereto, or any final determination or order of  the  commissioner  made
    35  pursuant to this article or article seventy-one of this chapter shall be
    36  liable  for a civil penalty not to exceed five thousand dollars for each
    37  violation and an additional penalty of not more than one  thousand  five
    38  hundred  dollars for each day during which such violation continues. For
    39  a second violation committed within twelve months of a prior  violation,
    40  the producer or producer responsibility organization shall be liable for
    41  a  civil  penalty  not  to exceed ten thousand dollars and an additional
    42  penalty of not more than three thousand  dollars  for  each  day  during
    43  which  such  violation  continues.  For  a third or subsequent violation
    44  committed within twelve months of any prior violation, the  producer  or
    45  producer responsibility organization shall be liable for a civil penalty
    46  not  to  exceed twenty thousand dollars and an additional penalty of six
    47  thousand dollars for each day during which such violation continues.
    48    (b) All producers participating in a producer responsibility organiza-
    49  tion shall be jointly and severally liable for  any  penalties  assessed
    50  against  the producer responsibility organization pursuant to this title
    51  and article seventy-one of this chapter.
    52    3. Civil penalties under this section shall be assessed by the depart-
    53  ment after an opportunity to be heard  pursuant  to  the  provisions  of
    54  section  71-1709  of  this  chapter,  or  by  the court in any action or
    55  proceeding pursuant to section 71-2727 of this chapter, and in  addition
    56  thereto,  such  person or entity may by similar process be enjoined from

        S. 1185--A                         11

     1  continuing such violation and any permit, registration or other approval
     2  issued by the department may  be  revoked  or  suspended  or  a  pending
     3  renewal denied.
     4    4.  The  department  and the attorney general are hereby authorized to
     5  enforce the provisions of this title and all monies collected  shall  be
     6  deposited to the credit of the environmental protection fund established
     7  pursuant to section ninety-two-s of the state finance law.
     8  § 27-3321. State preemption.
     9    Jurisdiction in all matters pertaining to costs and funding mechanisms
    10  of  producer  responsibility  organizations  relating to the recovery of
    11  covered materials by  this  title,  vested  exclusively  in  the  state;
    12  provided,  however,  that (i) nothing in this section shall preclude any
    13  city, town, village or other local planning units, which already has  in
    14  place  on  the  effective date of this title any local law, ordinance or
    15  regulation  governing  a  municipally-operated  recycling   program   or
    16  collection  program operated on behalf of such municipality, from deter-
    17  mining what materials shall be included for recycling in such  municipal
    18  recycling  collection  program,  or  shall  preclude any such local law,
    19  ordinance or regulation which provides environmental protection equal to
    20  or greater than the provisions of this title or rules promulgated  here-
    21  under,  and  (ii)  that  nothing in this section shall preclude a person
    22  from coordinating, for recycling or reuse,  the  collection  of  covered
    23  materials and products.
    24  § 27-3323. Authority to promulgate rules and regulations.
    25    The  commissioner  shall  have the power to promulgate rules and regu-
    26  lations necessary and appropriate for the administration of this title.
    27  § 27-3325. Severability.
    28    The provisions of this title shall be severable  and  if  any  phrase,
    29  clause, sentence or provision of this title or the applicability thereof
    30  to  any  person  or circumstance shall be held invalid, the remainder of
    31  this title and the application thereof shall not be affected thereby.
    32    § 3. This act shall take effect on the one hundred eightieth day after
    33  it shall have become a law.