S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5837
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 2, 2017
                                ___________
 
 Introduced  by  Sens. KRUEGER, BAILEY, HAMILTON, HOYLMAN, SERRANO, SQUA-
   DRON, STEWART-COUSINS -- read twice  and  ordered  printed,  and  when
   printed to be committed to the Committee on Environmental Conservation
 
 AN  ACT  to  amend  the  environmental  conservation law, in relation to
   prohibiting the use of certain food packaging and plastic food service
   ware
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short  title. This act shall be known and may be cited as
 the "food service waste reduction act".
   § 2. Article 27 of the environmental conservation law  is  amended  by
 adding a new title 22 to read as follows:
 
                                 TITLE 22
                        FOOD SERVICE WASTE REDUCTION
 
 SECTION 27-2201. DEFINITIONS.
         27-2203. PROHIBITED DISPOSABLE FOOD SERVICE WARE.
         27-2205. REQUIRED  COMPOSTABLE  OR  RECYCLABLE  DISPOSABLE  FOOD
                    SERVICE WARE.
         27-2207. POWERS OF MUNICIPALITIES.
 
 § 27-2201. DEFINITIONS.
   1. "AFFORDABLE" MEANS PURCHASABLE FOR NOT MORE  THAN  FIFTEEN  PERCENT
 MORE  THAN THE PURCHASE COST OF THE NON-BIODEGRADABLE NON-COMPOSTABLE OR
 NON-RECYCLABLE ALTERNATIVE.
   2. "ASTM STANDARD" MEANS MEETING THE STANDARDS OF THE AMERICAN SOCIETY
 FOR TESTING AND MATERIALS (ASTM) INTERNATIONAL STANDARDS D6400 OR  D6868
 FOR  BIODEGRADABLE  AND  COMPOSTABLE  PLASTICS AS THOSE STANDARDS MAY BE
 AMENDED.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01916-01-7
              

 S. 5837                             2
 
   3. "COMPOSTABLE" MEANS ALL THE MATERIALS IN  THE  PRODUCT  OR  PACKAGE
 WILL  BREAK DOWN INTO, OR OTHERWISE BECOME PART OF USABLE COMPOST (E.G.,
 SOIL-CONDITIONING MATERIAL, MULCH) IN A SAFE AND  TIMELY  MANNER  IN  AN
 APPROPRIATE COMPOSTING PROGRAM OR  FACILITY OR IN A HOME COMPOST PILE OR
 DEVICE.  COMPOSTABLE  DISPOSABLE  FOOD  SERVICE WARE INCLUDES, BY WAY OF
 EXAMPLE, ASTM STANDARD BIO-PLASTICS  (PLASTIC-LIKE  PRODUCTS)  THAT  ARE
 CLEARLY  LABELED,  PREFERABLY WITH A COLOR SYMBOL, SUCH THAT ANY COMPOST
 COLLECTOR  AND  PROCESSOR  CAN  EASILY  DISTINGUISH  THE  ASTM  STANDARD
 COMPOSTABLE  PLASTIC FROM NON-ASTM STANDARD COMPOSTABLE PLASTIC. FOR THE
 PURPOSES OF THIS TITLE THE TERM BIODEGRADABLE SHALL HAVE THE SAME  MEAN-
 ING AS COMPOSTABLE. THIS TITLE USES THE TERMS BIODEGRADABLE AND COMPOST-
 ABLE  INTERCHANGEABLY  AND IN ALL CASES WHETHER THE TERMS ARE USED SEPA-
 RATELY, IN THE DISJUNCTIVE OR IN THE CONJUNCTIVE THEY  SHALL  ALWAYS  BE
 INTERPRETED  AND  APPLIED  CONSISTENT  WITH  THIS DEFINITION OF THE TERM
 "COMPOSTABLE".
   4. "MUNICIPAL CONTRACTORS AND LESSEES" MEANS ANY PERSON OR ENTITY THAT
 HAS A CONTRACT WITH THE MUNICIPALITY FOR PUBLIC WORKS OR IMPROVEMENTS TO
 BE PERFORMED, FOR A FRANCHISE, CONCESSION  OR  LEASE  OF  PROPERTY,  FOR
 GRANT  MONIES  OR  GOODS AND SERVICES OR SUPPLIES TO BE PURCHASED AT THE
 EXPENSE OF THE MUNICIPALITY OR TO BE PAID OUT OF MONIES DEPOSITED IN THE
 TREASURY OR OUT OF TRUST MONIES UNDER THE CONTROL OR  COLLECTED  BY  THE
 MUNICIPALITY.
   5. "MUNICIPAL FACILITY" MEANS ANY BUILDING, STRUCTURE OR VEHICLE OWNED
 OR OPERATED BY THE MUNICIPALITY.
   6.  "MUNICIPAL  FACILITY FOOD PROVIDER" MEANS AN ENTITY THAT PROVIDES,
 BUT DOES NOT SELL, PREPARED FOOD IN MUNICIPAL FACILITIES.
   7. "DISPOSABLE FOOD SERVICE WARE" MEANS ALL CONTAINERS, BOWLS, PLATES,
 TRAYS, CARTONS, CUPS, LIDS, STRAWS, FORKS, SPOONS, KNIVES,  NAPKINS  AND
 OTHER  ITEMS  THAT  ARE  DESIGNED  FOR  ONE-TIME USE FOR PREPARED FOODS,
 INCLUDING WITHOUT LIMITATION, SERVICE  WARE  FOR  TAKEOUT  FOODS  AND/OR
 LEFTOVERS  FROM  PARTIALLY  CONSUMED MEALS PREPARED BY FOOD VENDORS. THE
 TERM "DISPOSABLE FOOD SERVICE WARE"  DOES  NOT  INCLUDE  ITEMS  COMPOSED
 ENTIRELY OF ALUMINUM OR POLYSTYRENE FOAM COOLERS AND ICE CHESTS THAT ARE
 INTENDED  FOR  REUSE  NOR DOES THIS TERM INCLUDE RECYCLABLE FOOD SERVICE
 WARE.
   8. "FOOD VENDOR" MEANS ANY RESTAURANT OR RETAIL FOOD VENDOR LOCATED OR
 OPERATING WITHIN THE MUNICIPALITY.
   9. "MUNICIPALITY" MEANS THE SAME AS SUCH TERM IS  DEFINED  IN  SECTION
 27-0501 OF THIS ARTICLE.
   10.  "PERSON"  MEANS  AN INDIVIDUAL, TRUST, FIRM, JOINT STOCK COMPANY,
 CORPORATION, INCLUDING A GOVERNMENT CORPORATION, PARTNERSHIP, OR ASSOCI-
 ATION.
   11. "POLYSTYRENE FOAM" MEANS  BLOWN  POLYSTYRENE  AND  EXPANDED  FOAMS
 UTILIZING  A  STYRENE MONOMER AND PROCESSED BY ANY NUMBER OF TECHNIQUES.
 POLYSTYRENE FOAM IS GENERALLY USED TO MAKE CUPS, BOWLS,  PLATES,  TRAYS,
 CLAMSHELL CONTAINERS, MEAT TRAYS AND EGG CARTONS.
   12. "PREPARED FOOD" MEANS FOOD OR BEVERAGES, WHICH ARE SERVICED, PACK-
 AGED, COOKED, CHOPPED, SLICED, MIXED, BREWED, FROZEN, SQUEEZED OR OTHER-
 WISE  PREPARED  (COLLECTIVELY  "PREPARED")  FOR  INDIVIDUAL CUSTOMERS OR
 CONSUMERS. FOR THE PURPOSE OF THIS TITLE, PREPARED FOOD INCLUDES TAKEOUT
 FOOD, BUT DOES NOT INCLUDE RAW, BUTCHERED  MEATS,  FISH  AND/OR  POULTRY
 SOLD FROM A BUTCHER CASE OR SIMILAR RETAIL APPLIANCE.
   13.  "RECYCLABLE"  MEANS  MATERIAL  THAT  CAN  BE SORTED, CLEANSED AND
 RECONSTITUTED USING AVAILABLE  RECYCLING  COLLECTION  PROGRAMS  FOR  THE
 PURPOSE  OF  USING THE ALTERED FORM IN THE MANUFACTURE OF A NEW PRODUCT.

 S. 5837                             3

 RECYCLING DOES NOT INCLUDE BURNING, INCINERATING, CONVERTING, OR  OTHER-
 WISE THERMALLY DESTROYING SOLID WASTE.
   14. "RESTAURANT" MEANS ANY ESTABLISHMENT LOCATED WITHIN A MUNICIPALITY
 THAT  SELLS PREPARED FOOD FOR CONSUMPTION ON, NEAR, OR OFF ITS PREMISES.
 FOR PURPOSES OF THIS TITLE, THE TERM  INCLUDES  A  RESTAURANT  OPERATING
 FROM A TEMPORARY FACILITY, CART, VEHICLE OR MOBILE UNIT.
   15. "RETAIL FOOD VENDOR" MEANS ANY STORE, SHOP, SALES OUTLET, OR OTHER
 ESTABLISHMENT,  INCLUDING  A  GROCERY STORE, DELICATESSEN OR RESTAURANT,
 LOCATED WITHIN THE MUNICIPALITY THAT SELLS PREPARED FOOD.
 § 27-2203. PROHIBITED DISPOSABLE FOOD SERVICE WARE.
   1. RETAIL FOOD VENDORS SHALL NOT SELL PREPARED FOOD IN DISPOSABLE FOOD
 SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
   2. MUNICIPAL FACILITY FOOD PROVIDERS SHALL NOT PROVIDE  PREPARED  FOOD
 IN DISPOSABLE FOOD SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
   3. MUNICIPAL DEPARTMENTS SHALL NOT PURCHASE, ACQUIRE OR USE DISPOSABLE
 FOOD SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
   4.  MUNICIPAL  CONTRACTORS  AND  LESSEES SHALL NOT USE DISPOSABLE FOOD
 SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM IN MUNICIPAL FACILITIES  AND
 WHILE PERFORMING UNDER A MUNICIPAL CONTRACT OR LEASE.
 §  27-2205. REQUIRED  COMPOSTABLE  OR RECYCLABLE DISPOSABLE FOOD SERVICE
               WARE.
   1. ALL FOOD VENDORS USING ANY DISPOSABLE FOOD SERVICE WARE SHALL USE A
 SUITABLE  AFFORDABLE  ALTERNATIVE  COMPOSTABLE  OR  RECYCLABLE  PRODUCT,
 UNLESS THERE IS NO SUITABLE AFFORDABLE COMPOSTABLE OR RECYCLABLE PRODUCT
 AVAILABLE  AS  DETERMINED  BY  THE  MUNICIPALITY IN ACCORDANCE WITH THIS
 SUBDIVISION. NOT LATER THAN THIRTY DAYS BEFORE  THE  EFFECTIVE  DATE  OF
 THIS  TITLE,  THE  COMMISSIONER SHALL ADOPT A LIST OF AVAILABLE SUITABLE
 AFFORDABLE COMPOSTABLE OR RECYCLABLE ALTERNATIVES FOR EACH PRODUCT TYPE.
 THE MUNICIPALITY SHALL REGULARLY UPDATE THE LIST.
   2. ALL MUNICIPAL FACILITY FOOD  PROVIDERS  AND  MUNICIPAL  DEPARTMENTS
 USING ANY DISPOSABLE FOOD SERVICE WARE SHALL USE COMPOSTABLE OR RECYCLA-
 BLE DISPOSABLE FOOD SERVICE WARE UNLESS THERE IS NO AFFORDABLE COMPOSTA-
 BLE OR RECYCLABLE PRODUCT AVAILABLE AS DETERMINED BY THE MUNICIPALITY IN
 ACCORDANCE WITH SUBDIVISION ONE OF SECTION 27-2203 OF THIS TITLE.
   3. MUNICIPAL CONTRACTORS AND LESSEES USING ANY DISPOSABLE FOOD SERVICE
 WARE SHALL USE COMPOSTABLE OR RECYCLABLE DISPOSABLE FOOD SERVICE WARE IN
 MUNICIPAL  FACILITIES AND WHILE PERFORMING UNDER A MUNICIPAL CONTRACT OR
 LEASE UNLESS THERE IS NO AFFORDABLE COMPOSTABLE  OR  RECYCLABLE  PRODUCT
 AVAILABLE  AS DETERMINED BY THE MUNICIPALITY IN ACCORDANCE WITH SUBDIVI-
 SION ONE OF SECTION 27-2203 OF THIS TITLE.
 § 27-2207. POWERS OF MUNICIPALITIES.
   1.  ANY MUNICIPALITY MAY PROMULGATE REGULATIONS, ORDINANCES,  OR  LAWS
 TO  TAKE ANY AND ALL OTHER REASONABLE ACTIONS NECESSARY TO IMPLEMENT AND
 ENFORCE THIS TITLE.
   2. ANY PERSON MAY SEEK A  WAIVER  FROM  THE  REQUIREMENTS  OF  SECTION
 27-2205  OF  THIS  TITLE  BY  FILING A REQUEST ON A FORM PROVIDED BY THE
 MUNICIPALITY. THE MUNICIPALITY MAY, CONSISTENT WITH  THIS  TITLE,  WAIVE
 ANY SPECIFIC REQUIREMENT OF THIS TITLE FOR A PERIOD OF UP TO ONE YEAR IF
 THE  PERSON  SEEKING THE WAIVER HAS DEMONSTRATED THAT STRICT APPLICATION
 OF THE REQUIREMENT WOULD CREATE AN UNDUE HARDSHIP OR PRACTICAL DIFFICUL-
 TY NOT GENERALLY APPLICABLE TO OTHER PERSONS IN  SIMILAR  CIRCUMSTANCES.
 THE  MUNICIPALITY'S  DECISION TO GRANT OR DENY SUCH A WAIVER SHALL BE IN
 WRITING AND SHALL BE FINAL.
   3.  ALL MUNICIPAL CONTRACTS AND LEASES, INCLUDING WITHOUT  LIMITATION,
 CONTRACTS  WITH  MUNICIPAL  FACILITY  FOOD  PROVIDERS, SHALL CONTAIN THE
 FOLLOWING MINIMUM LANGUAGE: "CONTRACTOR AGREES TO COMPLY FULLY WITH  AND

 S. 5837                             4
 
 BE  BOUND  BY  ALL OF THE PROVISIONS OF THE FOOD SERVICE WASTE REDUCTION
 ACT, AS PROVIDED IN TITLE 22 OF ARTICLE 27 OF THE ENVIRONMENTAL  CONSER-
 VATION LAW, INCLUDING THE REMEDIES PROVIDED, AND IMPLEMENTING GUIDELINES
 AND  RULES. THE PROVISIONS OF SUCH LAW ARE INCORPORATED HEREIN BY REFER-
 ENCE AND MADE A PART OF THIS AGREEMENT AS THOUGH FULLY SET  FORTH.  THIS
 PROVISION  IS  A  MATERIAL TERM OF THIS AGREEMENT. BY ENTERING INTO THIS
 AGREEMENT, CONTRACTOR AGREES THAT IF IT BREACHES THIS PROVISION, MUNICI-
 PALITY WILL SUFFER ACTUAL DAMAGES THAT WILL BE IMPRACTICAL OR  EXTREMELY
 DIFFICULT  TO  DETERMINE; FURTHER, CONTRACTOR AGREES THAT THE SUM OF ONE
 HUNDRED DOLLARS ($100.00) LIQUIDATED DAMAGES FOR THE FIRST  BREACH,  TWO
 HUNDRED  DOLLARS  ($200.00)  LIQUIDATED DAMAGES FOR THE SECOND BREACH IN
 THE SAME YEAR, AND FIVE HUNDRED DOLLARS ($500.00) LIQUIDATED DAMAGES FOR
 SUBSEQUENT BREACHES IN THE SAME YEAR IS A  REASONABLE  ESTIMATE  OF  THE
 DAMAGE  THAT MUNICIPALITY WILL INCUR BASED ON THE VIOLATION, ESTABLISHED
 IN LIGHT OF THE CIRCUMSTANCES EXISTING AT THE TIME  THIS  AGREEMENT  WAS
 MADE.  SUCH AMOUNTS SHALL NOT BE CONSIDERED A PENALTY, BUT RATHER AGREED
 MONETARY DAMAGES SUSTAINED BY MUNICIPALITY BECAUSE OF CONTRACTOR'S FAIL-
 URE TO COMPLY WITH THIS PROVISION."
   § 3. The environmental conservation law is amended  by  adding  a  new
 section 71-2730 to read as follows:
 § 71-2730. ENFORCEMENT OF SECTIONS 27-2203 AND 27-2205.
   1.  THE  MUNICIPALITY  SHALL ISSUE A WRITTEN WARNING TO ANY PERSON THE
 MUNICIPALITY DETERMINES IS VIOLATING SECTION 27-2203 OR 27-2205 OF  THIS
 CHAPTER.  IF AFTER ISSUING A WRITTEN WARNING OF VIOLATION FROM THE MUNI-
 CIPALITY, THE MUNICIPALITY FINDS THAT PERSON CONTINUES  TO  VIOLATE  THE
 PROVISIONS  OF  SECTION  27-2203 OR 27-2205 OF THIS CHAPTER, THE MUNICI-
 PALITY MAY IMPOSE THE VARIOUS SANCTIONS PROVIDED IN THIS SECTION.
   2. ANY PERSON WHO  VIOLATES  THE  PROVISIONS  OF  SECTION  27-2203  OR
 27-2205  OF THIS CHAPTER SHALL BE GUILTY OF A VIOLATION. IF CHARGED AS A
 VIOLATION, UPON CONVICTION THEREOF, SUCH PERSON SHALL  BE  PUNISHED  FOR
 THE  FIRST  OFFENSE BY A FINE OF NOT MORE THAN ONE HUNDRED DOLLARS FOR A
 FIRST VIOLATION;  NOT  MORE  THAN  TWO  HUNDRED  DOLLARS  FOR  A  SECOND
 VIOLATION  IN  THE SAME YEAR AND NOT MORE THAN TWO HUNDRED FIFTY DOLLARS
 FOR EACH SUBSEQUENT VIOLATION IN THE SAME YEAR.
   3. THE MUNICIPALITY MAY ISSUE AN ADMINISTRATIVE CIVIL LIABILITY  CITA-
 TION  TO  SUCH PERSON IN AN AMOUNT NOT EXCEEDING ONE HUNDRED DOLLARS FOR
 THE FIRST VIOLATION, AN AMOUNT NOT EXCEEDING TWO HUNDRED DOLLARS FOR THE
 SECOND VIOLATION, AND NOT MORE THAN TWO HUNDRED FIFTY DOLLARS  FOR  EACH
 SUBSEQUENT VIOLATION AGAINST THE SAME PERSON.
   §  4.  This act shall take effect on the three hundred sixty-fifth day
 after it shall have become a law.