S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1185
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              January 8, 2021
                                ___________
 
 Introduced  by  Sens.  KAMINSKY,  HOYLMAN, KRUEGER, MAY, SERRANO -- 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
   establishing the extended producer responsibility act

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  intent.  The legislature finds the weight of
 waste generated in New York is a threat to the environment. The legisla-
 ture further finds and declares that it is in the public interest of the
 state of New York for covered material and product producers  to  under-
 take the responsibility for the development and implementation of strat-
 egies  to  promote recycling, reuse and recovery of covered material and
 products through investments in the  end-of-product-life  management  of
 products.
   §  2.  Article  27 of the environmental conservation law is amended by
 adding a new title 31 to read as follows:
                                 TITLE 31
                   EXTENDED PRODUCER RESPONSIBILITY ACT
 SECTION 27-3101. DEFINITIONS.
         27-3103. PRODUCER RESPONSIBILITIES.
         27-3105. FUNDING MECHANISM.
         27-3107. PRODUCER RESPONSIBILITY PLAN.
         27-3109. PRODUCER RESPONSIBILITY PLAN APPROVAL.
         27-3111. COLLECTION AND CONVENIENCE.
         27-3113. OUTREACH AND EDUCATION.
         27-3115. REPORTING REQUIREMENTS AND AUDITS.
         27-3117. ANTITRUST PROTECTIONS.
         27-3119. PENALTIES.
         27-3121. STATE PREEMPTION.
         27-3123. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01205-01-1

 S. 1185                             2
 
         27-3125. SEVERABILITY.
 § 27-3101. DEFINITIONS.
   1. "ACTIVITY-BASED COSTS" SHALL MEAN A METHOD OF DISTRIBUTING THE COST
 OF  A  PROCESS AMONG ITS COMPONENT STREAMS ACCORDING TO THE SHARE OF THE
 TOTAL COST ASSUMED AS A RESULT OF THE PROCESSING OF THAT STREAM.
   2. "COVERED MATERIALS AND PRODUCTS" SHALL MEAN ANY PART OF  A  PACKAGE
 OR  CONTAINER,  REGARDLESS  OF  RECYCLABILITY  OR  COMPOSTABILITY,  THAT
 INCLUDES MATERIAL THAT IS USED FOR THE CONTAINMENT,  PROTECTION,  HANDL-
 ING,  DELIVERY,  AND  PRESENTATION  OF  GOODS THAT ARE SOLD, OFFERED FOR
 SALE, OR DISTRIBUTED TO CONSUMERS IN THE  STATE,  INCLUDING  THROUGH  AN
 INTERNET  TRANSACTION.   COVERED MATERIALS AND PRODUCTS INCLUDE, BUT ARE
 NOT LIMITED TO, THE FOLLOWING CLASSES OF MATERIALS:
   (A) CONTAINERS AND PACKAGING: THIS  CLASS  INCLUDES  ALL  FLEXIBLE  OR
 RIGID  MATERIAL,  INCLUDING  BUT  NOT LIMITED TO PAPER, CARTON, PLASTIC,
 GLASS, OR METAL, AND ANY COMBINATION OF SUCH MATERIALS THAT:
   (I) IS USED TO CONTAIN, PROTECT, WRAP OR PRESENT PRODUCTS AT ANY STAGE
 IN THE MOVEMENT OF THE PRODUCT FROM THE RESPONSIBLE PARTY TO  THE  ULTI-
 MATE USER OR CONSUMER, INCLUDING TERTIARY PACKAGING USED FOR TRANSPORTA-
 TION OR DISTRIBUTION DIRECTLY TO A CONSUMER;
   (II)  IS  INTENDED  FOR  A  SINGLE  OR  SHORT-TERM USE AND DESIGNED TO
 CONTAIN,  PROTECT  OR  WRAP  PRODUCTS,  INCLUDING  SECONDARY   PACKAGING
 INTENDED FOR THE CONSUMER MARKET; OR
   (III)  DOES NOT INCLUDE PACKAGING USED FOR THE LONG-TERM PROTECTION OR
 STORAGE OF A PRODUCT OR WITH A LIFE OF NOT LESS THAN FIVE YEARS.
   (B) PAPER PRODUCTS: THIS CLASS INCLUDES:
   (I) PAPER AND OTHER CELLULOSIC FIBERS, WHETHER OR NOT THEY ARE USED AS
 A MEDIUM FOR TEXT OR IMAGES, EXCEPT BOOKS AND MATERIALS IN  THE  NEWSPA-
 PERS CLASS OF MATERIALS;
   (II)  CONTAINERS  OR PACKAGING USED TO DELIVER PRINTED MATTER DIRECTLY
 TO THE ULTIMATE CONSUMER OR RECIPIENT;
   (III) PAPER OF ANY DESCRIPTION, INCLUDING BUT NOT LIMITED TO:
   (1) FLYERS;
   (2) BROCHURES;
   (3) BOOKLETS;
   (4) CATALOGS;
   (5) TELEPHONE DIRECTORIES;
   (6) NEWSPAPERS;
   (7) MAGAZINES;
   (8) PAPER FIBER; AND
   (9) PAPER USED FOR WRITING OR ANY OTHER PURPOSE.
   (C) PLASTICS: THIS CLASS INCLUDES ANY PLASTIC  AS  DETERMINED  BY  THE
 DEPARTMENT INCLUDING, BUT NOT LIMITED TO:
   (I) RIGID PLASTICS:
   (1) POLYETHYLENE TEREPHTHALATE (PET);
   (2) POLYETHYLENE (PE);
   (3) POLYVINYL CHLORIDE (PVC);
   (4) POLYPROPYLENE (PP);
   (5) POLYSTYRENE (PS);
   (6) POLY COATED FIBER;
   (7) MULTI-LAYERED PLASTICS;
   (8) OTHER (BPA, COMPOSTABLE PLASTICS, POLYCARBONATE AND LEXAN);
   (II) FLEXIBLE PLASTICS:
   (1) POLYETHYLENE (PE);
   (2) POLYVINYL CHLORIDE (PVC);
   (3) POLYPROPYLENE (PP);
   (4) POLY COATED FIBER;

 S. 1185                             3
 
   (5) MULTI-LAYERED PLASTICS;
   (6) OTHER (BPA, COMPOSTABLE PLASTICS, POLYCARBONATE AND LEXAN).
   (D)  FOR  THE  PURPOSE OF THIS TITLE, THE PRODUCTS COVERED DESIGNATION
 DOES NOT INCLUDE THE FOLLOWING:
   (I) PAPER PRODUCTS THAT COULD BECOME UNSAFE OR UNSANITARY  TO  RECYCLE
 BY VIRTUE OF THEIR ANTICIPATED USE;
   (II) LITERARY, TEXT, AND REFERENCE BOUND BOOKS; AND
   (III)  BEVERAGE CONTAINERS AS DEFINED IN SECTION 27-1003 OF THIS ARTI-
 CLE.
   3. "CURBSIDE RECYCLING" MEANS A RECYCLING PROGRAM THAT  SERVES  SINGLE
 AND MULTI-FAMILY RESIDENTIAL UNITS, SCHOOLS, STATE OR LOCAL AGENCIES, OR
 INSTITUTIONS  THAT  IS OPERATED BY A MUNICIPALITY PURSUANT TO A CONTRACT
 WITH THE MUNICIPALITY, PRIVATE ENTITY, OR OTHER PUBLIC AGENCY OR THROUGH
 APPROVED LOCAL SOLID WASTE MANAGEMENT PLANS.
   4. "POST-CONSUMER RECYCLED CONTENT" MEANS THE  CONTENT  OF  A  PRODUCT
 MADE OF RECYCLED MATERIALS DERIVED FROM POST-CONSUMER RECYCLED MATERIALS
 OR FEEDSTOCK.
   5. "PRODUCER" MEANS: (A) THE PERSON WHO MANUFACTURES THE COVERED MATE-
 RIAL  OR  PRODUCT UNDER SUCH PERSON'S OWN NAME OR BRAND AND WHO SELLS OR
 OFFERS FOR SALE THE COVERED MATERIAL OR PRODUCT IN THE STATE; OR
   (B) THE PERSON WHO IMPORTS THE COVERED  MATERIAL  OR  PRODUCT  AS  THE
 OWNER  OR LICENSEE OF A TRADEMARK OR BRAND UNDER WHICH THE COVERED MATE-
 RIAL OR PRODUCT IS SOLD OR DISTRIBUTED IN THE STATE; OR
   (C) THE PERSON OR COMPANY THAT OFFERS FOR SALE, SELLS, OR  DISTRIBUTES
 THE COVERED MATERIAL OR PRODUCT IN THE STATE.
   A  PRODUCER  SHALL  NOT  INCLUDE  A MUNICIPALITY OR A LOCAL GOVERNMENT
 PLANNING UNIT.
   6.  "PRODUCER  RESPONSIBILITY  ORGANIZATION"  MEANS  A  NOT-FOR-PROFIT
 ORGANIZATION  DESIGNATED  BY  A GROUP OF PRODUCERS TO ACT AS AN AGENT ON
 BEHALF OF EACH PRODUCER TO DEVELOP AND IMPLEMENT A PRODUCER RESPONSIBIL-
 ITY PLAN.
   7. "READILY-RECYCLABLE" MEANS PACKAGING THAT CAN BE SORTED BY ENTITIES
 PROCESSING RECYCLABLES FROM NEW YORK AND FOR WHICH, DURING THE  PREVIOUS
 TWO  CALENDAR  YEARS,  THERE  WAS A CONSISTENT MARKET, MEANING RECYCLERS
 WERE WILLING TO PAY FOR FULLY SORTED  MATERIAL  AT  THE  DOOR  OF  THEIR
 FACILITIES  IN QUANTITIES EQUAL TO OR IN EXCESS OF MATERIAL SUPPLY. THIS
 DOES NOT INCLUDE MATERIAL TYPES THAT RECYCLERS ACCEPT IN LOW  QUANTITIES
 OR  SORT OUT OF MATERIAL DURING ADDITIONAL PROCESSING STEPS; IF MATERIAL
 RECYCLERS DO NOT DESIRE A FULL BALE OF A SPECIFIC  MATERIAL  TYPE,  THAT
 MATERIAL TYPE IS NOT READILY RECYCLABLE.
   8.  "RECYCLING" MEANS TO SEPARATE, DISMANTLE OR PROCESS THE MATERIALS,
 COMPONENTS OR COMMODITIES CONTAINED IN COVERED PRODUCTS FOR THE  PURPOSE
 OF  PREPARING  THE MATERIALS, COMPONENTS OR COMMODITIES FOR USE OR REUSE
 IN NEW PRODUCTS OR  COMPONENTS.  "RECYCLING"  DOES  NOT  INCLUDE  ENERGY
 RECOVERY  OR  ENERGY  GENERATION  BY  MEANS  OF  COMBUSTION, OR LANDFILL
 DISPOSAL OF DISCARDED COVERED PRODUCTS OR  DISCARDED  PRODUCT  COMPONENT
 MATERIALS.
   9. "RECYCLING RATE" MEANS THE PERCENTAGE OF DISCARDED COVERED PRODUCTS
 THAT  IS  MANAGED  THROUGH RECYCLING OR REUSE, AS DEFINED BY THIS TITLE,
 AND IS COMPUTED BY DIVIDING THE AMOUNT  OF  DISCARDED  COVERED  PRODUCTS
 COLLECTED  AND  RECYCLED  OR  REUSED  BY  THE  TOTAL AMOUNT OF DISCARDED
 COVERED PRODUCTS COLLECTED OVER A PROGRAM YEAR.
   10. "REUSE" MEANS DONATING OR SELLING A DISCARDED COVERED PRODUCT BACK
 INTO THE MARKET FOR  ITS  ORIGINAL  INTENDED  USE,  WHEN  THE  DISCARDED
 COVERED PRODUCT RETAINS ITS ORIGINAL PERFORMANCE CHARACTERISTICS AND CAN
 BE USED FOR ITS ORIGINAL PURPOSE.

 S. 1185                             4
 
   11.  "RETAILER"  MEANS A PERSON WHO SELLS OR OFFERS FOR SALE A PRODUCT
 TO A CONSUMER, INCLUDING SALES MADE THROUGH AN INTERNET  TRANSACTION  TO
 BE DELIVERED TO A CONSUMER IN THE STATE.
 § 27-3103. PRODUCER RESPONSIBILITIES.
   1.  WITHIN  THREE  YEARS  AFTER  THE  EFFECTIVE DATE OF THIS TITLE, NO
 PRODUCER SHALL SELL, OFFER FOR SALE, OR DISTRIBUTE COVERED MATERIALS  OR
 PRODUCTS  FOR USE IN NEW YORK UNLESS THE PRODUCER, OR A PRODUCER RESPON-
 SIBILITY ORGANIZATION ACTING AS THEIR DESIGNATED AGENT, HAS  A  PRODUCER
 RESPONSIBILITY  PLAN  APPROVED  BY THE DEPARTMENT. PRODUCERS MAY SATISFY
 PARTICIPATION OBLIGATIONS INDIVIDUALLY OR JOINTLY WITH  OTHER  PRODUCERS
 OR THROUGH A PRODUCER RESPONSIBILITY ORGANIZATION.
   2.  WITHIN ONE YEAR AFTER THE DEPARTMENT APPROVES A PRODUCER RESPONSI-
 BILITY PLAN, PRODUCERS SHALL BE REQUIRED TO MEET THE  MINIMUM  POST-CON-
 SUMER  RECYCLED  MATERIAL  CONTENT RATE AND MINIMUM RECYCLING RATE FOR A
 COVERED MATERIAL OR PRODUCT AS APPROVED BY THE DEPARTMENT IN THE PRODUC-
 ER RESPONSIBILITY PLAN.
   3. A PRODUCER SHALL BE EXEMPT FROM THE REQUIREMENTS OF THIS  TITLE  IF
 THE PRODUCER:
   (A) GENERATES LESS THAN ONE MILLION DOLLARS IN ANNUAL REVENUES;
   (B)  GENERATES  LESS  THAN  ONE  TON  OF COVERED MATERIALS OR PRODUCTS
 SUPPLIED TO NEW YORK STATE RESIDENTS PER YEAR; OR
   (C) OPERATES AS A SINGLE POINT OF RETAIL SALE AND IS NOT  SUPPLIED  OR
 OPERATED AS PART OF A FRANCHISE.
   4.  RETAILERS  THAT ARE NOT PRODUCERS ARE EXEMPT FROM THE REQUIREMENTS
 OF THIS TITLE.
   5. PRODUCERS MAY COMPLY INDIVIDUALLY OR MAY FORM A PRODUCER  RESPONSI-
 BILITY  ORGANIZATION AND DISCHARGE THEIR RESPONSIBILITIES TO SUCH ORGAN-
 IZATION.
 § 27-3105. FUNDING MECHANISM.
   1. A PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL  ESTABLISH  PROGRAM
 PARTICIPATION  CHARGES FOR PRODUCERS THROUGH THE PRODUCER RESPONSIBILITY
 PLAN PURSUANT TO SECTION 27-3107 OF THIS TITLE WHICH SHALL BE SUFFICIENT
 TO COVER ALL PROGRAM COSTS.
   2. A PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL  STRUCTURE  PROGRAM
 CHARGES  TO PROVIDE PRODUCERS WITH FINANCIAL INCENTIVES, TO REWARD WASTE
 REDUCTION AND RECYCLING COMPATIBILITY INNOVATIONS AND PRACTICES, AND  TO
 DISCOURAGE  DESIGNS  OR  PRACTICES  THAT  INCREASE COSTS OF MANAGING THE
 PRODUCTS. THE PRODUCER RESPONSIBILITY ORGANIZATION MAY ADJUST CHARGES TO
 BE PAID BY PARTICIPATING PRODUCERS BASED ON FACTORS THAT  AFFECT  SYSTEM
 COSTS. AT A MINIMUM, CHARGES SHALL BE VARIABLE BASED ON:
   (A)  COSTS  TO  PROVIDE CURBSIDE COLLECTION OR OTHER LEVEL OF CONSUMER
 SERVICE THAT IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR  AS
 CONVENIENT  AS  THE  PREVIOUS  WASTE COLLECTION SCHEMA IN THE PARTICULAR
 JURISDICTION;
   (B) COSTS TO PROCESS A PRODUCER'S COVERED MATERIALS  OR  PRODUCTS  FOR
 SALE TO SECONDARY MATERIAL MARKETS;
   (C) WHETHER THE COVERED MATERIAL OR PRODUCT WOULD TYPICALLY BE RECYCL-
 ABLE  EXCEPT  THAT AS A CONSEQUENCE OF THE PRODUCT'S DESIGN, THE PRODUCT
 HAS THE EFFECT OF DISRUPTING RECYCLING PROCESSES OR THE PRODUCT INCLUDES
 LABELS, INKS, AND ADHESIVES CONTAINING HEAVY METALS OR  OTHER  HAZARDOUS
 WASTE AS DEFINED BY THE DEPARTMENT IN REGULATIONS THAT WOULD CONTAMINATE
 THE RECYCLING PROCESS;
   (D)  WHETHER  THE  COVERED  MATERIALS  OR  PRODUCT ARE NONFOOD CONTACT
 CONTAINERS AND OTHER NONFOOD  CONTACT  PACKAGING  THAT  IS  SPECIFICALLY
 DESIGNED TO BE REUSABLE OR REFILLABLE AND HAS HIGH REUSE OR REFILL RATE.

 S. 1185                             5
 
   3.  THE  CHARGES  SHALL BE ADJUSTED BASED UPON THE PERCENTAGE OF POST-
 CONSUMER RECYCLED MATERIAL CONTENT AND SUCH PERCENTAGE OF  POST-CONSUMER
 RECYCLED CONTENT SHALL BE VERIFIED EITHER BY THE PRODUCER RESPONSIBILITY
 ORGANIZATION  OR BY AN INDEPENDENT PARTY DESIGNATED BY THE DEPARTMENT TO
 ENSURE  THAT  SUCH  PERCENTAGE  EXCEEDS  THE MINIMUM REQUIREMENTS IN THE
 COVERED MATERIAL, AS LONG AS THE RECYCLED CONTENT DOES NOT  DISRUPT  THE
 POTENTIAL FOR FUTURE RECYCLING.
   4.  A  PRODUCER  RESPONSIBILITY  ORGANIZATION SHALL BE RESPONSIBLE FOR
 CALCULATING AND DISPERSING ACTIVITY-BASED COSTS FOR  MUNICIPAL  SERVICES
 UTILIZED  BY  A PRODUCER RESPONSIBILITY ORGANIZATION IF THE MUNICIPALITY
 ELECTS TO BE COMPENSATED BY THE PRODUCER RESPONSIBILITY ORGANIZATION  IN
 THE  RECOVERY,  RECYCLING,  AND PROCESSING OF COVERED MATERIALS, WHETHER
 SUCH SERVICES ARE PROVIDED DIRECTLY BY THE  MUNICIPALITY  OR  THROUGH  A
 CONTRACTED  SERVICE PROVIDER. THE ACTIVITY-BASED COST MECHANISM SHALL BE
 BASED ON THE COST OF RESIDENTIAL CURBSIDE COLLECTION, ON-SITE PROCESSING
 COST FOR EACH READILY-RECYCLABLE MATERIAL, COST OF NON-READILY  RECYCLA-
 BLE  MATERIAL  TYPES, TRANSPORTATION COST OF RECYCLING FOR EACH MATERIAL
 TYPE, AND ANY OTHER COST FACTORS AS DETERMINED  BY  THE  DEPARTMENT.  TO
 FACILITATE  THE  PRODUCER RESPONSIBILITY ORGANIZATION'S DETERMINATION OF
 THE COST OF RECYCLING, PARTICIPATING MUNICIPALITIES  SHALL  REPORT  DATA
 RELATED  TO  THEIR  COSTS  AND  THE  VALUE  OF MATERIALS TO THE PRODUCER
 RESPONSIBILITY ORGANIZATION.  COST CALCULATIONS SHALL TAKE INTO  CONSID-
 ERATION REVENUE GENERATED FROM RECYCLABLE MATERIALS.
   5.  THE  DEPARTMENT SHALL MAKE SUCH RULES AND REGULATIONS WHICH MAY BE
 NECESSARY FOR A PRODUCER  RESPONSIBILITY  ORGANIZATION  TO  DEVELOP  AND
 MANAGE A FUNDING MECHANISM AND ACTIVITY-BASED COSTS.
 § 27-3107. PRODUCER RESPONSIBILITY PLAN.
   1.  PRODUCERS,  OR  A  PRODUCER  RESPONSIBILITY ORGANIZATION ACTING AS
 THEIR DESIGNATED AGENT, SHALL DEVELOP AND SUBMIT A PRODUCER RESPONSIBIL-
 ITY PLAN TO THE DEPARTMENT NO LATER THAN ONE YEAR  AFTER  THE  EFFECTIVE
 DATE  OF  THIS  TITLE.  SUCH  PLAN  SHALL BE FOR FIVE YEARS AND SHALL BE
 REVIEWED AND UPDATED EVERY FIVE YEARS  FOLLOWING  THE  APPROVAL  OF  THE
 ORIGINAL  PLAN.  THE DEPARTMENT SHALL HAVE THE DISCRETION TO REQUIRE THE
 PLAN TO BE REVIEWED OR REVISED PRIOR TO THE  FIVE  YEAR  PERIOD  IF  THE
 DEPARTMENT HAS CAUSE TO BELIEVE THE MINIMUM POST-CONSUMER RECYCLED MATE-
 RIAL  CONTENT  RATES,  MINIMUM  RECYCLING RATES, OR OTHER FACTORS OF THE
 PLAN ARE NOT BEING MET OR FOLLOWED BY THE PRODUCER, OR PRODUCER  RESPON-
 SIBILITY  ORGANIZATION,  OR  IF THERE HAS BEEN A CHANGE IN CIRCUMSTANCES
 THAT WARRANTS REVISION OF THE PLAN. THE SUBMITTED  PLAN  SHALL  INCLUDE,
 BUT NOT BE LIMITED TO:
   (A)  CONTACT  INFORMATION  OF THE PRODUCER RESPONSIBILITY ORGANIZATION
 AND THE PRODUCER OR PRODUCERS COVERED UNDER THE PLAN;
   (B) A DESCRIPTION OF HOW COMMENTS OF STAKEHOLDERS WERE  CONSIDERED  IN
 THE DEVELOPMENT OF THE PLAN;
   (C) THE COVERED MATERIALS FOR WHICH THE PRODUCER OR PRODUCER RESPONSI-
 BILITY ORGANIZATION IS RESPONSIBLE FOR;
   (D)  A  FUNDING MECHANISM THAT ALLOCATES THE COSTS TO THE PRODUCERS TO
 MEET THE REQUIREMENTS OF THIS TITLE AND IS SUFFICIENT TO COVER THE  COST
 OF  REGISTERING,  OPERATING  AND  UPDATING  THE  PLAN, AND MAINTAINING A
 FINANCIAL RESERVE SUFFICIENT  TO  OPERATE  THE  PROGRAM  IN  A  FISCALLY
 PRUDENT AND RESPONSIBLE MANNER;
   (E)  A DESCRIPTION OF THE PROCESS FOR MUNICIPALITIES TO RECOUP REASON-
 ABLE COSTS FROM THE PRODUCER RESPONSIBILITY ORGANIZATION FOR THE ACTIVI-
 TY-BASED COSTS, INCLUDING, AS APPLICABLE, ANY  ADMINISTRATIVE,  SORTING,
 COLLECTION, TRANSPORTATION, OR PROCESSING COSTS, IF THE PRODUCER RESPON-
 SIBILITY ORGANIZATION USES EXISTING SERVICES THROUGH A MUNICIPALITY;

 S. 1185                             6
 
   (F)  A  PROPOSED  MINIMUM POST-CONSUMER RECYCLED MATERIAL CONTENT RATE
 REQUIREMENT AND MINIMUM RECYCLING RATE FOR MATERIALS.  THE MINIMUM RECY-
 CLING RATE SHALL BE VARIED FOR EACH RECYCLED MATERIAL AND SHALL  INCLUDE
 PAPER PRODUCTS, GLASS, METAL, AND PLASTIC;
   (G)  A  DESCRIPTION  OF A PUBLIC EDUCATION PROGRAM PURSUANT TO SECTION
 27-3113 OF THIS TITLE;
   (H) HOW THE PRODUCERS, OR THE  PRODUCER  RESPONSIBILITY  ORGANIZATION,
 WILL  WORK  WITH  EXISTING  WASTE HAULERS, MATERIAL RECOVERY FACILITIES,
 RECYCLERS, AND MUNICIPALITIES TO OPERATE OR  EXPAND  CURRENT  COLLECTION
 PROGRAMS TO ADDRESS MATERIAL COLLECTION METHODS;
   (I)  A DESCRIPTION OF HOW A MUNICIPALITY WILL PARTICIPATE, ON A VOLUN-
 TARY BASIS, WITH COLLECTION AND HOW EXISTING MUNICIPAL WASTE  COLLECTION
 INFRASTRUCTURE WILL BE USED;
   (J)  A  DESCRIPTION  OF  HOW  THE PRODUCER, OR PRODUCER RESPONSIBILITY
 ORGANIZATION, PLANS TO MEET THE CONVENIENCE REQUIREMENTS  SET  FORTH  IN
 THIS TITLE;
   (K)  A  DESCRIPTION  OF  HOW  THE PRODUCER, OR PRODUCER RESPONSIBILITY
 ORGANIZATION, WILL MEET OR EXCEED THE MINIMUM RECYCLING RATE FOR A PROD-
 UCT;
   (L) A DESCRIPTION OF THE PROCESS FOR END-OF-LIFE MANAGEMENT, INCLUDING
 RECYCLING AND DISPOSAL, USING  ENVIRONMENTALLY  SOUND  MANAGEMENT  PRAC-
 TICES;
   (M)  A  DESCRIPTION OF HOW A PRODUCER RESPONSIBILITY ORGANIZATION WILL
 WORK WITH PRODUCERS TO  REDUCE  PACKAGING  THROUGH  PRODUCT  DESIGN  AND
 PROGRAM INNOVATIONS;
   (N)  A  PROCESS  TO  ADDRESS CONCERNS AND QUESTIONS FROM CUSTOMERS AND
 CONSUMERS; AND
   (O) ANY OTHER INFORMATION AS SPECIFIED BY THE DEPARTMENT THROUGH REGU-
 LATIONS.
   2. THE DEPARTMENT SHALL PROMULGATE  A  REGISTRATION  FEE  SCHEDULE  TO
 COVER  ADMINISTRATIVE  COSTS, INCLUDING A SCHEDULE FOR RE-EVALUATING THE
 FEE STRUCTURE ON AN ANNUAL BASIS.
 § 27-3109. PRODUCER RESPONSIBILITY PLAN APPROVAL.
   1. NO LATER THAN NINETY DAYS AFTER  THE  SUBMISSION  OF  THE  PRODUCER
 RESPONSIBILITY  PLAN,  THE  DEPARTMENT  SHALL  MAKE  A  DETERMINATION TO
 APPROVE THE PLAN AS SUBMITTED; APPROVE THE PLAN WITH CONDITIONS; OR DENY
 THE PLAN. THE DEPARTMENT SHALL CONSIDER  THE  FOLLOWING  IN  WHETHER  TO
 APPROVE A PLAN:
   (A)  THE  PLAN  ADEQUATELY ADDRESSES ALL ELEMENTS DESCRIBED IN SECTION
 27-3107 OF THIS TITLE WITH SUFFICIENT DETAIL  TO  DEMONSTRATE  THAT  THE
 OBJECTIVE OF THE PLAN WILL BE MET;
   (B)  THE PRODUCER HAS UNDERTAKEN SATISFACTORY CONSULTATION WITH STAKE-
 HOLDERS AND HAS PROVIDED AN OPPORTUNITY FOR  STAKEHOLDER  INPUT  IN  THE
 IMPLEMENTATION  AND  OPERATION  OF  THE  PLAN PRIOR TO SUBMISSION OF THE
 PLAN;
   (C) THE PLAN ADEQUATELY PROVIDES FOR: (I) THE PRODUCER COLLECTING  AND
 FUNDING  THE  COSTS OF COLLECTING AND PROCESSING PRODUCTS COVERED BY THE
 PLAN OR REIMBURSING A MUNICIPALITY; (II) THE FUNDING MECHANISM TO  COVER
 THE  ENTIRE  COST  OF  THE  PROGRAM;  (III) CONVENIENT AND FREE CONSUMER
 ACCESS TO COLLECTION FACILITIES OR  COLLECTION  SERVICES;  AND  (IV)  AN
 EVALUATION  SYSTEM FOR THE FEE STRUCTURE, WHICH SHALL BE EVALUATED ON AN
 ANNUAL BASIS BY THE PRODUCER RESPONSIBILITY ORGANIZATION AND  RE-SUBMIT-
 TED TO THE DEPARTMENT ANNUALLY;
   (D) THE PLAN TAKES INTO CONSIDERATION A POST-CONSUMER CONTENT RATE AND
 RECYCLING  RATE THAT WILL CREATE OR ENHANCE MARKETS FOR RECYCLED MATERI-
 ALS AND THERE IS A PLAN TO ADJUST THE MINIMUM RATES ON AN ANNUAL  BASIS.

 S. 1185                             7
 
 SUCH  RATES  SHALL  TAKE  INTO  CONSIDERATION  CURRENT STATE AND FEDERAL
 RATES;
   (E) THE PLAN CREATES A CONVENIENT SYSTEM FOR CONSUMERS TO RECYCLE THAT
 IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR AS CONVENIENT AS
 THE PREVIOUS WASTE COLLECTION SCHEMA IN THE PARTICULAR JURISDICTION.
   2.  NO  LATER THAN SIX MONTHS AFTER THE DATE THE PLAN IS APPROVED, THE
 PRODUCER, OR PRODUCER RESPONSIBILITY ORGANIZATION, SHALL  IMPLEMENT  THE
 APPROVED  PLAN.  THE  DEPARTMENT MAY RESCIND THE APPROVAL OF AN APPROVED
 PLAN AT ANY TIME.
 § 27-3111. COLLECTION AND CONVENIENCE.
   A PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL  PROVIDE  FOR
 WIDESPREAD, CONVENIENT, AND EQUITABLE ACCESS TO COLLECTION OPPORTUNITIES
 FOR  THE  COVERED  PRODUCTS  IDENTIFIED  UNDER  THE PRODUCER OR PRODUCER
 RESPONSIBILITY ORGANIZATION'S PLAN.  A PRODUCER RESPONSIBILITY ORGANIZA-
 TION SHALL ENSURE SERVICES CONTINUE  FOR  ALL  SINGLE  AND  MULTI-FAMILY
 RESIDENTIAL UNITS THAT A MUNICIPALITY SERVES AS OF THE EFFECTIVE DATE OF
 THIS ARTICLE, EITHER DIRECTLY OR THROUGH A CONTRACT TO PROVIDE SERVICES,
 AND  THAT  SUCH  SERVICES  ARE  CONTINUED THROUGH THE PLAN.   A PRODUCER
 RESPONSIBILITY ORGANIZATION MAY RELY ON A  RANGE  OF  MEANS  TO  COLLECT
 VARIOUS  CATEGORIES  OF COVERED MATERIALS OR PRODUCTS INCLUDING, BUT NOT
 LIMITED TO, CURBSIDE COLLECTION, DEPOT DROP-OFF, AND RETAILER  TAKE-BACK
 SO  LONG  AS  COVERED  MATERIALS AND PRODUCTS COLLECTION OPTIONS INCLUDE
 CURBSIDE OR  MULTI-FAMILY  RECYCLING  COLLECTION  SERVICES  PROVIDED  BY
 MUNICIPAL   PROGRAMS,   MUNICIPAL   CONTRACTED   PROGRAMS,  SOLID  WASTE
 COLLECTION COMPANIES, OR OTHER APPROVED ENTITIES AS  IDENTIFIED  BY  THE
 DEPARTMENT IF:
   1.  THE  CATEGORY  OF  COVERED  MATERIALS AND PRODUCTS IS SUITABLE FOR
 RESIDENTIAL CURBSIDE RECYCLING COLLECTION AND CAN BE EFFECTIVELY  SORTED
 BY THE FACILITIES RECEIVING THE CURBSIDE COLLECTED MATERIAL;
   2.  THE CATEGORY OF PAPER IS SUITABLE FOR RESIDENTIAL CURBSIDE RECYCL-
 ING COLLECTION AND CAN BE EFFECTIVELY SORTED BY THE FACILITIES RECEIVING
 THE CURBSIDE COLLECTED MATERIAL;
   3. THE PROVIDER OF THE RESIDENTIAL CURBSIDE RECYCLING  SERVICE  AGREES
 TO INCLUDE THE CATEGORY OF COVERED MATERIALS AND PRODUCTS AS AN ACCEPTED
 MATERIAL;
   4.  THE COVERED MATERIALS AND PRODUCTS CATEGORY IS NOT HANDLED THROUGH
 A DEPOSIT AND RETURN  SCHEME  OR  BUY  BACK  SYSTEM  THAT  RELIES  ON  A
 COLLECTION SYSTEM OTHER THAN CURBSIDE OR MULTI-FAMILY COLLECTION; AND
   5.  THE  PROVIDER OF THE RESIDENTIAL CURBSIDE RECYCLING SERVICE AGREES
 TO  THE  PRODUCER  RESPONSIBILITY  ORGANIZATION   ACTIVITY-BASED   COSTS
 ARRANGEMENT.
 § 27-3113. OUTREACH AND EDUCATION.
   1.  THE  PRODUCER,  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION,  SHALL
 PROVIDE EFFECTIVE OUTREACH, EDUCATION, AND COMMUNICATIONS  TO  CONSUMERS
 THROUGHOUT NEW YORK STATE REGARDING:
   (A)  PROPER  END-OF-LIFE  MANAGEMENT  OF COVERED PRODUCTS AND BEVERAGE
 CONTAINERS;
   (B) THE LOCATION AND AVAILABILITY OF CURBSIDE AND DROP-OFF  COLLECTION
 OPPORTUNITIES;
   (C) HOW TO PREVENT LITTER OF COVERED PRODUCTS AND BEVERAGE CONTAINERS;
 AND
   (D)  RECYCLING AND COMPOSTING INSTRUCTIONS THAT ARE: CONSISTENT STATE-
 WIDE, EXCEPT AS NECESSARY TO TAKE INTO ACCOUNT DIFFERENCES  AMONG  LOCAL
 LAWS  AND PROCESSING CAPABILITIES; EASY TO UNDERSTAND; AND EASILY ACCES-
 SIBLE.

 S. 1185                             8
 
   2. THE OUTREACH AND EDUCATION REQUIRED PURSUANT TO SUBDIVISION ONE  OF
 THIS SECTION SHALL:
   (A)  BE  DESIGNED  TO ACHIEVE THE MANAGEMENT GOALS OF COVERED PRODUCTS
 UNDER THIS TITLE, INCLUDING THE PREVENTION OF CONTAMINATION  OF  COVERED
 PRODUCTS;
   (B) BE COORDINATED ACROSS PROGRAMS TO AVOID CONFUSION FOR CONSUMERS;
   (C)  INCLUDE,  AT  A  MINIMUM:  CONSULTING ON EDUCATION, OUTREACH, AND
 COMMUNICATIONS WITH LOCAL GOVERNMENTS AND OTHER STAKEHOLDERS; COORDINAT-
 ING WITH AND ASSISTING LOCAL MUNICIPAL  PROGRAMS,  MUNICIPAL  CONTRACTED
 PROGRAMS, SOLID WASTE COLLECTION COMPANIES, AND OTHER ENTITIES PROVIDING
 SERVICES;  AND  DEVELOPING  AND  PROVIDING OUTREACH AND EDUCATION TO THE
 DIVERSE ETHNIC POPULATIONS IN THE STATE; AND
   (D) A PLAN TO WORK  WITH  PARTICIPATING  PRODUCERS  TO  LABEL  COVERED
 PRODUCTS  WITH  INFORMATION  TO ASSIST CONSUMERS IN RESPONSIBLY MANAGING
 AND RECYCLING COVERED PRODUCTS.
   3. THE DEPARTMENT SHALL DETERMINE THE EFFECTIVENESS  OF  OUTREACH  AND
 EDUCATION  EFFORTS  UNDER  THIS SECTION TO DETERMINE WHETHER CHANGES ARE
 NECESSARY TO IMPROVE THOSE OUTREACH AND EDUCATION  EFFORTS  AND  DEVELOP
 INFORMATION  THAT  MAY BE USED TO IMPROVE OUTREACH AND EDUCATION EFFORTS
 UNDER THIS SECTION.
   4. THE PRODUCER RESPONSIBILITY ORGANIZATION SHALL UNDERTAKE  OUTREACH,
 EDUCATION,  AND COMMUNICATIONS THAT ASSIST IN ATTAINING OR EXCEEDING THE
 MINIMUM POST-CONSUMER CONTENT AND RECOVERY RATES.
 § 27-3115. REPORTING REQUIREMENTS AND AUDITS.
   1. ON OR BEFORE ONE YEAR AFTER A PRODUCER OR  PRODUCER  RESPONSIBILITY
 ORGANIZATION'S  FIRST  PLAN  IS  APPROVED, AND ANNUALLY THEREAFTER, EACH
 PRODUCER, OR PRODUCER RESPONSIBILITY ORGANIZATION ACTING AS THEIR DESIG-
 NATED AGENT, SHALL SUBMIT A REPORT TO THE COMMISSIONER THAT DETAILS  THE
 PROGRAM  FOR THE PRIOR YEAR'S PROGRAM. THE REPORT SHALL BE POSTED ON THE
 DEPARTMENT'S WEBSITE AND ON THE WEBSITE OF  THE  PRODUCER,  OR  PRODUCER
 RESPONSIBILITY ORGANIZATION ACTING AS THEIR DESIGNATED AGENT. SUCH ANNU-
 AL REPORT SHALL INCLUDE:
   (A)  A  DETAILED DESCRIPTION OF THE METHODS USED TO COLLECT, TRANSPORT
 AND  PROCESS  COVERED  MATERIALS  AND   PRODUCTS   INCLUDING   DETAILING
 COLLECTION  METHODS MADE AVAILABLE TO CONSUMERS AND AN EVALUATION OF THE
 PROGRAM'S COLLECTION CONVENIENCE;
   (B) THE OVERALL WEIGHT OF COVERED MATERIALS AND PRODUCTS COLLECTED  IN
 THE STATE;
   (C) THE WEIGHT AND TYPE OF COVERED MATERIALS AND PRODUCTS COLLECTED IN
 THE STATE BY THE METHOD OF DISPOSITION;
   (D)  THE  TOTAL  COST OF IMPLEMENTING THE PROGRAM, AS DETERMINED BY AN
 INDEPENDENT FINANCIAL AUDIT, AS PERFORMED BY AN INDEPENDENT AUDITOR;
   (E) INFORMATION REGARDING THE INDEPENDENTLY AUDITED  FINANCIAL  STATE-
 MENTS  DETAILING ALL DEPOSITS RECEIVED AND REFUNDS PAID BY THE PRODUCERS
 COVERED BY THE APPROVED PLAN, AND REVENUES AND EXPENDITURES FOR ANY FEES
 ASSOCIATED WITH THE APPROVED PLAN THAT MAY  BE  CHARGED  SEPARATELY  AND
 IDENTIFIED ON THE CONSUMER RECEIPT OF SALE;
   (F) A COPY OF THE INDEPENDENT AUDIT;
   (G)  A DETAILED DESCRIPTION OF WHETHER THE PROGRAM COMPENSATES MUNICI-
 PALITIES, SOLID WASTE COLLECTION, SORTING, AND  REPROCESSING  COMPANIES,
 AND  OTHER  APPROVED  ENTITIES  FOR  THEIR  RECYCLING  EFFORTS AND OTHER
 RELATED SERVICES PROVIDED BY THE ABOVE ENTITIES;
   (H) SAMPLES OF ALL EDUCATIONAL  MATERIALS  PROVIDED  TO  CONSUMERS  OR
 OTHER ENTITIES; AND

 S. 1185                             9
 
   (I)  A  DETAILED  LIST  OF EFFORTS UNDERTAKEN AND AN EVALUATION OF THE
 METHODS USED TO DISSEMINATE SUCH MATERIALS INCLUDING RECOMMENDATIONS, IF
 ANY, FOR HOW THE EDUCATIONAL COMPONENT OF THE PROGRAM CAN BE IMPROVED.
   2.  THE DEPARTMENT SHALL NOT REQUIRE PUBLIC REPORTING OF ANY CONFIDEN-
 TIAL INFORMATION THAT THE DEPARTMENT FINDS TO BE  PROTECTED  PROPRIETARY
 INFORMATION.  FOR PURPOSES OF THIS TITLE, PROTECTED PROPRIETARY INFORMA-
 TION SHALL MEAN INFORMATION THAT, IF MADE PUBLIC, WOULD DIVULGE  COMPET-
 ITIVE  BUSINESS INFORMATION, METHODS OR PROCESSES ENTITLED TO PROTECTION
 AS TRADE SECRETS OF SUCH PRODUCER OR PRODUCER  RESPONSIBILITY  ORGANIZA-
 TION OR INFORMATION THAT WOULD REASONABLY HINDER THE PRODUCER OR PRODUC-
 ER  RESPONSIBILITY  ORGANIZATION'S  COMPETITIVE ADVANTAGE IN THE MARKET-
 PLACE.
 § 27-3117. ANTITRUST PROTECTIONS.
   A PRODUCER RESPONSIBILITY ORGANIZATION, INCLUDING  OFFICERS,  MEMBERS,
 EMPLOYEES AND AGENTS THEREOF, SHALL BE IMMUNE FROM LIABILITY FOR CONDUCT
 UNDER STATE LAWS RELATING TO ANTITRUST, RESTRAINT OF TRADE, UNFAIR TRADE
 PRACTICES,  AND OTHER REGULATION OF TRADE OR COMMERCE ONLY TO THE EXTENT
 NECESSARY TO PLAN AND IMPLEMENT COMPLIANCE WITH THIS SECTION.
 § 27-3119. PENALTIES.
   1. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ANY PERSON OR  ENTITY
 THAT  VIOLATES  ANY  PROVISION  OF  OR FAILS TO PERFORM ANY DUTY IMPOSED
 PURSUANT TO THIS TITLE OR ANY RULE OR  REGULATION  PROMULGATED  PURSUANT
 THERETO,  OR  ANY TERM OR CONDITION OF ANY REGISTRATION OR PERMIT ISSUED
 PURSUANT THERETO, OR ANY FINAL DETERMINATION OR ORDER OF THE COMMISSION-
 ER MADE PURSUANT TO THIS ARTICLE OR ARTICLE SEVENTY-ONE OF THIS  CHAPTER
 SHALL  BE  LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS
 FOR EACH VIOLATION AND AN ADDITIONAL  PENALTY  OF  NOT  MORE  THAN  FIVE
 HUNDRED DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES.
   2.  (A)  ANY  PRODUCER  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION WHO
 VIOLATES ANY PROVISION OF OR FAILS TO PERFORM ANY DUTY IMPOSED  PURSUANT
 TO THIS TITLE OR ANY RULE OR REGULATION PROMULGATED PURSUANT THERETO, OR
 ANY  TERM  OR  CONDITION  OF  ANY REGISTRATION OR PERMIT ISSUED PURSUANT
 THERETO, OR ANY FINAL DETERMINATION OR ORDER OF  THE  COMMISSIONER  MADE
 PURSUANT TO THIS ARTICLE OR ARTICLE SEVENTY-ONE OF THIS CHAPTER SHALL BE
 LIABLE  FOR A CIVIL PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH
 VIOLATION AND AN ADDITIONAL PENALTY OF NOT MORE THAN ONE  THOUSAND  FIVE
 HUNDRED  DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES. FOR
 A SECOND VIOLATION COMMITTED WITHIN TWELVE MONTHS OF A PRIOR  VIOLATION,
 THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE LIABLE FOR
 A  CIVIL  PENALTY  NOT  TO EXCEED TEN THOUSAND DOLLARS AND AN ADDITIONAL
 PENALTY OF NOT MORE THAN THREE THOUSAND  DOLLARS  FOR  EACH  DAY  DURING
 WHICH  SUCH  VIOLATION  CONTINUES.  FOR  A THIRD OR SUBSEQUENT VIOLATION
 COMMITTED WITHIN TWELVE MONTHS OF ANY PRIOR VIOLATION, THE  PRODUCER  OR
 PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE LIABLE FOR A CIVIL PENALTY
 NOT  TO  EXCEED TWENTY THOUSAND DOLLARS AND AN ADDITIONAL PENALTY OF SIX
 THOUSAND DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES.
   (B) ALL PRODUCERS PARTICIPATING IN A PRODUCER RESPONSIBILITY ORGANIZA-
 TION SHALL BE JOINTLY AND SEVERALLY LIABLE FOR  ANY  PENALTIES  ASSESSED
 AGAINST  THE PRODUCER RESPONSIBILITY ORGANIZATION PURSUANT TO THIS TITLE
 AND ARTICLE SEVENTY-ONE OF THIS CHAPTER.
   3. CIVIL PENALTIES UNDER THIS SECTION SHALL BE ASSESSED BY THE DEPART-
 MENT AFTER AN OPPORTUNITY TO BE HEARD  PURSUANT  TO  THE  PROVISIONS  OF
 SECTION  71-1709  OF  THIS  CHAPTER,  OR  BY  THE COURT IN ANY ACTION OR
 PROCEEDING PURSUANT TO SECTION 71-2727 OF THIS CHAPTER, AND IN  ADDITION
 THERETO,  SUCH  PERSON OR ENTITY MAY BY SIMILAR PROCESS BE ENJOINED FROM
 CONTINUING SUCH VIOLATION AND ANY PERMIT, REGISTRATION OR OTHER APPROVAL

 S. 1185                            10
 
 ISSUED BY THE DEPARTMENT MAY  BE  REVOKED  OR  SUSPENDED  OR  A  PENDING
 RENEWAL DENIED.
   4.  THE  DEPARTMENT  AND THE ATTORNEY GENERAL ARE HEREBY AUTHORIZED TO
 ENFORCE THE PROVISIONS OF THIS TITLE AND ALL MONIES COLLECTED  SHALL  BE
 DEPOSITED TO THE CREDIT OF THE ENVIRONMENTAL PROTECTION FUND ESTABLISHED
 PURSUANT TO SECTION NINETY-TWO-S OF THE STATE FINANCE LAW.
 § 27-3121. STATE PREEMPTION.
   JURISDICTION  IN  ALL  MATTERS  PERTAINING TO ACTIVITY-BASED COSTS AND
 FUNDING MECHANISMS OF PRODUCER RESPONSIBILITY ORGANIZATIONS RELATING  TO
 THE  RECOVERY  OF COVERED MATERIALS BY THIS TITLE, VESTED EXCLUSIVELY IN
 THE STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY  RULE  OR
 REGULATION PROMULGATED THERETO, GOVERNING COVERED MATERIALS AND PRODUCTS
 RECYCLING  SHALL,  UPON  THE EFFECTIVE DATE OF THIS TITLE, BE PREEMPTED;
 PROVIDED HOWEVER, THAT NOTHING IN THIS SECTION SHALL PRECLUDE  A  PERSON
 FROM  COORDINATING,  FOR  RECYCLING  OR REUSE, THE COLLECTION OF COVERED
 MATERIALS AND PRODUCTS.
 § 27-3123. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
   THE COMMISSIONER SHALL HAVE THE POWER TO PROMULGATE  RULES  AND  REGU-
 LATIONS NECESSARY AND APPROPRIATE FOR THE ADMINISTRATION OF THIS TITLE.
 § 27-3125. SEVERABILITY.
   THE  PROVISIONS  OF  THIS  TITLE SHALL BE SEVERABLE AND IF ANY PHRASE,
 CLAUSE, SENTENCE OR PROVISION OF THIS TITLE OR THE APPLICABILITY THEREOF
 TO ANY PERSON OR CIRCUMSTANCE SHALL BE HELD INVALID,  THE  REMAINDER  OF
 THIS TITLE AND THE APPLICATION THEREOF SHALL NOT BE AFFECTED THEREBY.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1185--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              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:
 
   Section  1.  Legislative  intent.  The legislature finds the weight of
 waste generated in New York is a threat to the environment. The legisla-
 ture further finds and declares that it is in the public interest of the
 state of New York for covered material and product producers  to  under-
 take the responsibility for the development and implementation of strat-
 egies  to  promote recycling, reuse and recovery of covered material and
 products through investments in the  end-of-product-life  management  of
 products, printed paper, and product packaging.
   §  2.  Article  27 of the environmental conservation law is amended by
 adding a new title 33 to read as follows:
                                 TITLE 33
                   EXTENDED PRODUCER RESPONSIBILITY ACT
 SECTION 27-3301. DEFINITIONS.
         27-3303. PRODUCER RESPONSIBILITIES.
         27-3305. FUNDING MECHANISM.
         27-3307. PRODUCER RESPONSIBILITY PLAN.
         27-3309. PRODUCER RESPONSIBILITY PLAN APPROVAL.
         27-3311. COLLECTION AND CONVENIENCE.
         27-3313. OUTREACH AND EDUCATION.
         27-3315. REPORTING REQUIREMENTS AND AUDITS.
         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
 
         27-3319. PENALTIES.
         27-3321. STATE PREEMPTION.
         27-3323. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
         27-3325. SEVERABILITY.
 § 27-3301. DEFINITIONS.
   1.  "COVERED  MATERIALS AND PRODUCTS" SHALL MEAN ANY PART OF A PACKAGE
 OR  CONTAINER,  REGARDLESS  OF  RECYCLABILITY  OR  COMPOSTABILITY,  THAT
 INCLUDES  MATERIAL  THAT IS USED FOR THE CONTAINMENT, PROTECTION, HANDL-
 ING, DELIVERY, AND PRESENTATION OF GOODS  THAT  ARE  SOLD,  OFFERED  FOR
 SALE,  OR  DISTRIBUTED  TO  CONSUMERS IN THE STATE, INCLUDING THROUGH AN
 INTERNET TRANSACTION.  COVERED MATERIALS AND PRODUCTS INCLUDE,  BUT  ARE
 NOT LIMITED TO, THE FOLLOWING CLASSES OF MATERIALS:
   (A) CONTAINERS AND PACKAGING: THIS CLASS INCLUDES ALL FLEXIBLE FOAM OR
 RIGID  MATERIAL,  INCLUDING  BUT  NOT LIMITED TO PAPER, CARTON, PLASTIC,
 GLASS, OR METAL, AND ANY COMBINATION OF SUCH MATERIALS THAT:
   (I) IS USED TO CONTAIN, PROTECT, WRAP OR PRESENT PRODUCTS AT ANY STAGE
 IN THE MOVEMENT OF THE PRODUCT FROM THE RESPONSIBLE PARTY TO  THE  ULTI-
 MATE USER OR CONSUMER, INCLUDING TERTIARY PACKAGING USED FOR TRANSPORTA-
 TION OR DISTRIBUTION DIRECTLY TO A CONSUMER;
   (II)  IS  INTENDED  FOR  A  SINGLE  OR  SHORT-TERM USE AND DESIGNED TO
 CONTAIN,  PROTECT  OR  WRAP  PRODUCTS,  INCLUDING  SECONDARY   PACKAGING
 INTENDED FOR THE CONSUMER MARKET; OR
   (III)  DOES NOT INCLUDE PACKAGING USED FOR THE LONG-TERM PROTECTION OR
 STORAGE OF A PRODUCT OR WITH A LIFE OF NOT LESS THAN FIVE YEARS.
   (B) PAPER PRODUCTS: THIS CLASS INCLUDES:
   (I) PAPER AND OTHER CELLULOSIC FIBERS, WHETHER OR NOT THEY ARE USED AS
 A MEDIUM FOR TEXT OR IMAGES, EXCEPT BOOKS, AND MATERIALS IN THE  NEWSPA-
 PERS CLASS OF MATERIALS;
   (II)  CONTAINERS  OR PACKAGING USED TO DELIVER PRINTED MATTER DIRECTLY
 TO THE ULTIMATE CONSUMER OR RECIPIENT;
   (III) PAPER OF ANY DESCRIPTION, INCLUDING BUT NOT LIMITED TO:
   (1) FLYERS;
   (2) BROCHURES;
   (3) BOOKLETS;
   (4) CATALOGS;
   (5) TELEPHONE DIRECTORIES;
   (6) NEWSPAPERS;
   (7) MAGAZINES;
   (8) PAPER FIBER; AND
   (9) PAPER USED FOR WRITING OR ANY OTHER PURPOSE.
   (C) PLASTICS: THIS CLASS INCLUDES ANY PLASTIC  AS  DETERMINED  BY  THE
 DEPARTMENT INCLUDING, BUT NOT LIMITED TO:
   (I) RIGID PLASTICS:
   (1) POLYETHYLENE TEREPHTHALATE (PET);
   (2) POLYETHYLENE (PE);
   (3) POLYVINYL CHLORIDE (PVC);
   (4) POLYPROPYLENE (PP);
   (5) POLYSTYRENE (PS);
   (6) POLY COATED FIBER;
   (7) MULTI-LAYERED PLASTICS;
   (8) OTHER (BPA, COMPOSTABLE PLASTICS, POLYCARBONATE AND LEXAN);
   (II) FLEXIBLE PLASTICS:
   (1) POLYETHYLENE (PE);
   (2) POLYVINYL CHLORIDE (PVC);
   (3) POLYPROPYLENE (PP);
   (4) POLY COATED FIBER;

 S. 1185--A                          3
 
   (5) MULTI-LAYERED PLASTICS;
   (6) OTHER (BPA, COMPOSTABLE PLASTICS, POLYCARBONATE AND LEXAN).
   (D)  FOR  THE  PURPOSE OF THIS TITLE, THE PRODUCTS COVERED DESIGNATION
 DOES NOT INCLUDE THE FOLLOWING:
   (I) PAPER PRODUCTS THAT COULD BECOME UNSAFE OR UNSANITARY  TO  RECYCLE
 BY VIRTUE OF THEIR ANTICIPATED USE;
   (II) LITERARY, TEXT, AND REFERENCE BOUND BOOKS; AND
   (III)  BEVERAGE CONTAINERS AS DEFINED IN SECTION 27-1003 OF THIS ARTI-
 CLE.
   2. "CURBSIDE RECYCLING" MEANS A RECYCLING PROGRAM THAT  SERVES  SINGLE
 AND MULTI-FAMILY RESIDENTIAL UNITS, SCHOOLS, STATE OR LOCAL AGENCIES, OR
 INSTITUTIONS  THAT  IS  OPERATED  BY  A  MUNICIPALITY  OR  PURSUANT TO A
 CONTRACT WITH THE MUNICIPALITY, PRIVATE ENTITY, OR OTHER  PUBLIC  AGENCY
 OR THROUGH APPROVED LOCAL SOLID WASTE MANAGEMENT PLANS.
   3.  "POST-CONSUMER  RECYCLED  CONTENT"  MEANS THE CONTENT OF A PRODUCT
 MADE OF RECYCLED MATERIALS DERIVED FROM POST-CONSUMER RECYCLED MATERIALS
 OR FEEDSTOCK.
   4. "PRODUCER" MEANS: (A) THE PERSON WHO MANUFACTURES THE COVERED MATE-
 RIAL OR PRODUCT UNDER SUCH PERSON'S OWN NAME OR BRAND AND WHO  SELLS  OR
 OFFERS FOR SALE THE COVERED MATERIAL OR PRODUCT IN THE STATE; OR
   (B)  THE  PERSON  WHO  IMPORTS  THE COVERED MATERIAL OR PRODUCT AS THE
 OWNER OR LICENSEE OF A TRADEMARK OR BRAND UNDER WHICH THE COVERED  MATE-
 RIAL OR PRODUCT IS SOLD OR DISTRIBUTED IN THE STATE; OR
   (C)  THE PERSON OR COMPANY THAT OFFERS FOR SALE, SELLS, OR DISTRIBUTES
 THE COVERED MATERIAL OR PRODUCT IN THE STATE.
   A PRODUCER SHALL NOT INCLUDE A  MUNICIPALITY  OR  A  LOCAL  GOVERNMENT
 PLANNING  UNIT,  OR  A  REGISTERED  501(C)(3) CHARITABLE ORGANIZATION OR
 501(C)(4) SOCIAL WELFARE ORGANIZATION.
   5.  "PRODUCER  RESPONSIBILITY  ORGANIZATION"  MEANS  A  NOT-FOR-PROFIT
 ORGANIZATION  DESIGNATED  BY  A GROUP OF PRODUCERS TO ACT AS AN AGENT ON
 BEHALF OF EACH PRODUCER TO DEVELOP AND IMPLEMENT A PRODUCER RESPONSIBIL-
 ITY PLAN, OR A REGISTERED 501(C)(3) CHARITABLE ORGANIZATION OR 501(C)(4)
 SOCIAL WELFARE ORGANIZATION
   6. "READILY-RECYCLABLE" MEANS PACKAGING THAT CAN BE SORTED BY ENTITIES
 PROCESSING RECYCLABLES FROM NEW YORK AND FOR WHICH, DURING THE  PREVIOUS
 TWO  CALENDAR  YEARS,  THERE  WAS A CONSISTENT MARKET, MEANING RECYCLERS
 WERE WILLING TO ACCEPT SORTED MATERIAL AT THE DOOR OF THEIR  FACILITIES.
 READILY-RECYCLABLE DOES NOT INCLUDE MATERIAL TYPES THAT RECYCLERS ACCEPT
 IN  LOW  QUANTITIES OR SORT OUT OF MATERIAL DURING ADDITIONAL PROCESSING
 STEPS; IF MATERIAL RECYCLERS DO NOT DESIRE A FULL  BALE  OF  A  SPECIFIC
 MATERIAL TYPE, THAT MATERIAL TYPE IS NOT READILY RECYCLABLE. READILY-RE-
 CYCLABLE  ALSO DOES NOT INCLUDE MATERIALS THAT CONTAIN HARMFUL CHEMICAL,
 PHYSICAL, BIOLOGICAL, OR RADIOLOGICAL SUBSTANCES THAT POSE A  THREAT  TO
 HUMAN HEALTH OR THE ENVIRONMENT FOR ITS INTENDED OR LIKE MANNER OF USE.
   7.  "RECYCLING" MEANS TO SEPARATE, DISMANTLE OR PROCESS THE MATERIALS,
 COMPONENTS OR COMMODITIES CONTAINED IN COVERED PRODUCTS FOR THE  PURPOSE
 OF  PREPARING  THE MATERIALS, COMPONENTS OR COMMODITIES FOR USE OR REUSE
 IN NEW PRODUCTS OR  COMPONENTS.  "RECYCLING"  DOES  NOT  INCLUDE  ENERGY
 RECOVERY  OR  ENERGY  GENERATION  BY  MEANS  OF  COMBUSTION, OR LANDFILL
 DISPOSAL OF DISCARDED COVERED PRODUCTS OR  DISCARDED  PRODUCT  COMPONENT
 MATERIALS.
   8. "RECYCLING RATE" MEANS THE PERCENTAGE OF DISCARDED COVERED PRODUCTS
 THAT  IS  MANAGED  THROUGH RECYCLING OR REUSE, AS DEFINED BY THIS TITLE,
 AND IS COMPUTED BY DIVIDING THE AMOUNT  OF  DISCARDED  COVERED  PRODUCTS
 COLLECTED  AND  RECYCLED  OR  REUSED  BY  THE  TOTAL AMOUNT OF DISCARDED
 COVERED PRODUCTS COLLECTED OVER A PROGRAM YEAR.

 S. 1185--A                          4
 
   9. "REUSE" MEANS DONATING OR SELLING A DISCARDED COVERED PRODUCT  BACK
 INTO  THE  MARKET  FOR  ITS  ORIGINAL  INTENDED  USE, WHEN THE DISCARDED
 COVERED PRODUCT RETAINS ITS ORIGINAL PERFORMANCE CHARACTERISTICS AND CAN
 BE USED FOR ITS ORIGINAL PURPOSE.
   10.  "RETAILER"  MEANS A PERSON WHO SELLS OR OFFERS FOR SALE A PRODUCT
 TO A CONSUMER, INCLUDING SALES MADE THROUGH AN INTERNET  TRANSACTION  TO
 BE DELIVERED TO A CONSUMER IN THE STATE.
 § 27-3303. PRODUCER RESPONSIBILITIES.
   1.  WITHIN  THREE  YEARS  AFTER  THE  EFFECTIVE DATE OF THIS TITLE, NO
 PRODUCER SHALL SELL, OFFER FOR SALE, OR DISTRIBUTE COVERED MATERIALS  OR
 PRODUCTS  FOR USE IN NEW YORK UNLESS THE PRODUCER, OR A PRODUCER RESPON-
 SIBILITY ORGANIZATION ACTING AS THEIR DESIGNATED AGENT, HAS  A  PRODUCER
 RESPONSIBILITY  PLAN  APPROVED  BY THE DEPARTMENT. PRODUCERS MAY SATISFY
 PARTICIPATION OBLIGATIONS INDIVIDUALLY OR JOINTLY WITH  OTHER  PRODUCERS
 OR THROUGH A PRODUCER RESPONSIBILITY ORGANIZATION.
   2.  WITHIN ONE YEAR AFTER THE DEPARTMENT APPROVES A PRODUCER RESPONSI-
 BILITY PLAN, PRODUCERS SHALL BE REQUIRED TO MEET THE  MINIMUM  POST-CON-
 SUMER  RECYCLED  MATERIAL  CONTENT RATE AND MINIMUM RECYCLING RATE FOR A
 COVERED MATERIAL OR PRODUCT AS APPROVED BY THE DEPARTMENT IN THE PRODUC-
 ER RESPONSIBILITY PLAN.
   3. A PRODUCER SHALL BE EXEMPT FROM THE REQUIREMENTS OF THIS  TITLE  IF
 THE PRODUCER:
   (A) GENERATES LESS THAN ONE MILLION DOLLARS IN ANNUAL REVENUES;
   (B)  GENERATES  LESS  THAN  ONE  TON  OF COVERED MATERIALS OR PRODUCTS
 SUPPLIED TO NEW YORK STATE RESIDENTS PER YEAR; OR
   (C) OPERATES AS A SINGLE POINT OF RETAIL SALE AND IS NOT  SUPPLIED  OR
 OPERATED AS PART OF A FRANCHISE.
   4.  RETAILERS  THAT ARE NOT PRODUCERS ARE EXEMPT FROM THE REQUIREMENTS
 OF THIS TITLE.
   5. PRODUCERS MAY COMPLY INDIVIDUALLY OR MAY FORM A PRODUCER  RESPONSI-
 BILITY  ORGANIZATION AND DISCHARGE THEIR RESPONSIBILITIES TO SUCH ORGAN-
 IZATION.
 § 27-3305. FUNDING MECHANISM.
   1. A PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION ACTING AS  THEIR
 AGENT SHALL ESTABLISH PROGRAM PARTICIPATION CHARGES, SUCH AS THROUGH THE
 USE  OF ECO-MODULATED FEES, FOR PRODUCERS THROUGH THE PRODUCER RESPONSI-
 BILITY PLAN PURSUANT TO SECTION 27-3307 OF THIS  TITLE  WHICH  SHALL  BE
 SUFFICIENT TO COVER ALL PROGRAM COSTS.
   2.  A  PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL STRUCTURE PROGRAM
 CHARGES TO PROVIDE PRODUCERS WITH FINANCIAL INCENTIVES, TO REWARD  WASTE
 REDUCTION  AND RECYCLING COMPATIBILITY INNOVATIONS AND PRACTICES, AND TO
 DISCOURAGE DESIGNS OR PRACTICES THAT  INCREASE  COSTS  OF  MANAGING  THE
 PRODUCTS. THE PRODUCER RESPONSIBILITY ORGANIZATION MAY ADJUST CHARGES TO
 BE  PAID  BY PARTICIPATING PRODUCERS BASED ON FACTORS THAT AFFECT SYSTEM
 COSTS. AT A MINIMUM, CHARGES SHALL BE VARIABLE BASED ON:
   (A) COSTS TO PROVIDE CURBSIDE COLLECTION OR OTHER  LEVEL  OF  CONSUMER
 SERVICE  THAT IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR AS
 CONVENIENT AS THE PREVIOUS RECYCLING COLLECTION SCHEMA IN THE PARTICULAR
 JURISDICTION OR AS CONVENIENT AS THE PREVIOUS REFUSE  COLLECTION  SCHEMA
 IN  THE  PARTICULAR  JURISDICTION  SHOULD  RECYCLING  COLLECTION  NOT BE
 PROVIDED;
   (B) COSTS TO PROCESS A PRODUCER'S COVERED MATERIALS  OR  PRODUCTS  FOR
 ACCEPTANCE BY SECONDARY MATERIAL MARKETS;
   (C)  WHETHER THE COVERED MATERIAL OR PRODUCT WOULD TYPICALLY BE READI-
 LY-RECYCLABLE EXCEPT THAT AS A CONSEQUENCE OF THE PRODUCT'S DESIGN,  THE
 PRODUCT  HAS THE EFFECT OF DISRUPTING RECYCLING PROCESSES OR THE PRODUCT

 S. 1185--A                          5
 
 INCLUDES LABELS, INKS, AND ADHESIVES CONTAINING HEAVY  METALS  OR  OTHER
 HAZARDOUS  WASTE  AS DEFINED BY THE DEPARTMENT IN REGULATIONS THAT WOULD
 CONTAMINATE THE RECYCLING PROCESS;
   (D)  WHETHER  THE  COVERED  MATERIALS  OR  PRODUCT ARE NONFOOD CONTACT
 CONTAINERS AND OTHER NONFOOD  CONTACT  PACKAGING  THAT  IS  SPECIFICALLY
 DESIGNED TO BE REUSABLE OR REFILLABLE AND HAS HIGH REUSE OR REFILL RATE.
   3.  THE  CHARGES  SHALL BE ADJUSTED BASED UPON THE PERCENTAGE OF POST-
 CONSUMER RECYCLED MATERIAL CONTENT AND SUCH PERCENTAGE OF  POST-CONSUMER
 RECYCLED CONTENT SHALL BE VERIFIED EITHER BY THE PRODUCER RESPONSIBILITY
 ORGANIZATION  THROUGH  AN INDEPENDENT THIRD PARTY APPROVED OR DESIGNATED
 BY THE DEPARTMENT TO PERFORM VERIFICATION SERVICES TO ENSURE  THAT  SUCH
 PERCENTAGE  EXCEEDS THE MINIMUM REQUIREMENTS IN THE COVERED MATERIAL, AS
 LONG AS THE RECYCLED CONTENT DOES NOT DISRUPT THE POTENTIAL  FOR  FUTURE
 RECYCLING.
   4.  A  PRODUCER  RESPONSIBILITY  ORGANIZATION SHALL BE RESPONSIBLE FOR
 CALCULATING AND DISPERSING FUNDING FOR MUNICIPAL SERVICES UTILIZED BY  A
 PRODUCER  RESPONSIBILITY  ORGANIZATION  IF THE MUNICIPALITY ELECTS TO BE
 COMPENSATED BY THE PRODUCER RESPONSIBILITY ORGANIZATION IN THE RECOVERY,
 RECYCLING, AND PROCESSING OF COVERED MATERIALS,  WHETHER  SUCH  SERVICES
 ARE  PROVIDED  DIRECTLY  BY  THE  MUNICIPALITY  OR  THROUGH A CONTRACTED
 SERVICE PROVIDER. THE PROGRAM FUNDING MECHANISM SHALL BE  BASED  ON  THE
 COST  OF RESIDENTIAL CURBSIDE COLLECTION, INCLUDING THE COST OF CURBSIDE
 CONTAINERS WHERE RELEVANT, AS WELL AS PROCESSING COST FOR EACH  READILY-
 RECYCLABLE  MATERIAL,  COST  OF HANDLING NON-READILY RECYCLABLE MATERIAL
 TYPES COLLECTED AS PART OF A RECYCLING OPERATION, TRANSPORTATION COST OF
 RECYCLING FOR EACH MATERIAL TYPE, AND ANY OTHER COST FACTORS  AS  DETER-
 MINED  BY  THE  DEPARTMENT.  TO  FACILITATE  THE PRODUCER RESPONSIBILITY
 ORGANIZATION'S DETERMINATION OF THE  COST  OF  RECYCLING,  PARTICIPATING
 MUNICIPALITIES SHALL REPORT DATA RELATED TO THEIR COSTS AND THE VALUE OF
 MATERIALS  TO  THE  PRODUCER  RESPONSIBILITY ORGANIZATION.   COST CALCU-
 LATIONS SHALL TAKE INTO CONSIDERATION REVENUE GENERATED FROM  RECYCLABLE
 MATERIALS.
   5. NO PRODUCER MAY CHARGE A POINT-OF-SALE OR OTHER FEE TO CONSUMERS TO
 RECOUP THE COSTS OF MEETING PRODUCER OBLIGATIONS UNDER THIS TITLE.
   6.  NOTHING  IN THIS TITLE SHALL REQUIRE A MUNICIPALITY TO PARTICIPATE
 IN A PRODUCER RESPONSIBILITY PROGRAM.
   7. THE DEPARTMENT SHALL MAKE SUCH RULES AND REGULATIONS WHICH  MAY  BE
 NECESSARY  FOR  A  PRODUCER  RESPONSIBILITY  ORGANIZATION TO DEVELOP AND
 MANAGE A FUNDING MECHANISM AND ACTIVITY-BASED COSTS.
 § 27-3307. PRODUCER RESPONSIBILITY PLAN.
   1. PRODUCERS, OR A  PRODUCER  RESPONSIBILITY  ORGANIZATION  ACTING  AS
 THEIR DESIGNATED AGENT, SHALL DEVELOP AND SUBMIT A PRODUCER RESPONSIBIL-
 ITY  PLAN  TO  THE DEPARTMENT NO LATER THAN ONE YEAR AFTER THE EFFECTIVE
 DATE OF THIS TITLE. SUCH PLAN SHALL BE  FOR  FIVE  YEARS  AND  SHALL  BE
 REVIEWED  AND  UPDATED  EVERY  FIVE  YEARS FOLLOWING THE APPROVAL OF THE
 ORIGINAL PLAN. THE DEPARTMENT SHALL HAVE THE DISCRETION TO  REQUIRE  THE
 PLAN  TO  BE  REVIEWED  OR  REVISED PRIOR TO THE FIVE YEAR PERIOD IF THE
 DEPARTMENT HAS CAUSE TO BELIEVE THE MINIMUM POST-CONSUMER RECYCLED MATE-
 RIAL CONTENT RATES, MINIMUM RECYCLING RATES, OR  OTHER  FACTORS  OF  THE
 PLAN  ARE NOT BEING MET OR FOLLOWED BY THE PRODUCER, OR PRODUCER RESPON-
 SIBILITY ORGANIZATION, OR IF THERE HAS BEEN A  CHANGE  IN  CIRCUMSTANCES
 THAT  WARRANTS  REVISION  OF THE PLAN. THE SUBMITTED PLAN SHALL INCLUDE,
 BUT NOT BE LIMITED TO:
   (A) CONTACT INFORMATION OF THE  PRODUCER  RESPONSIBILITY  ORGANIZATION
 AND THE PRODUCER OR PRODUCERS COVERED UNDER THE PLAN;

 S. 1185--A                          6
 
   (B) A DESCRIPTION OF HOW COMMENTS OF STAKEHOLDERS WERE CONSIDERED AND,
 IF APPLICABLE, ADDRESSED IN THE DEVELOPMENT OF THE PLAN;
   (C)  A  COMPREHENSIVE  LIST  OF  THE COVERED MATERIALS OR PRODUCTS FOR
 WHICH THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION IS  RESPONSI-
 BLE FOR;
   (D)  A  FUNDING MECHANISM THAT ALLOCATES THE COSTS TO THE PRODUCERS TO
 MEET THE REQUIREMENTS OF THIS TITLE AND IS SUFFICIENT TO COVER THE  COST
 OF  REGISTERING,  OPERATING  AND  UPDATING  THE  PLAN, AND MAINTAINING A
 FINANCIAL RESERVE SUFFICIENT  TO  OPERATE  THE  PROGRAM  IN  A  FISCALLY
 PRUDENT AND RESPONSIBLE MANNER;
   (E)  A  DESCRIPTION  OF  THE  PROCESS FOR MUNICIPALITIES TO RECOUP ALL
 REASONABLE COSTS, BOTH OPERATIONAL AND CAPITAL,  FROM  THE  PRODUCER  OR
 PRODUCER  RESPONSIBILITY  ORGANIZATION  FOR  THE  ACTIVITY-BASED  COSTS,
 INCLUDING,  AS  APPLICABLE,  ANY  ADMINISTRATIVE,  SORTING,  COLLECTION,
 TRANSPORTATION,  PUBLIC  EDUCATION, OR PROCESSING COSTS, IF THE PRODUCER
 RESPONSIBILITY ORGANIZATION USES EXISTING  SERVICES  THROUGH  A  MUNICI-
 PALITY;
   (F) A DETAILED DESCRIPTION OF HOW THE PRODUCER OR THE PRODUCER RESPON-
 SIBILITY  ORGANIZATION,  CONSULTED  WITH STAKEHOLDERS, INCLUDING MUNICI-
 PALITIES, PRIVATE SECTOR HAULERS, AND MATERIAL RECOVERY FACILITIES,  AND
 PROCESSORS  TO  SEEK THEIR INPUT IN THE DEVELOPMENT OF THE PLAN PRIOR TO
 ITS SUBMISSION TO THE DEPARTMENT, AND TO WHAT EXTENT  THE  PRODUCERS  OR
 THE  PRODUCER  RESPONSIBILITY ORGANIZATION SPECIFICALLY INCORPORATED THE
 STAKEHOLDERS' INPUT INTO THE PLAN.  PRODUCERS OR THE PRODUCER  RESPONSI-
 BILITY  ORGANIZATION SHALL PROVIDE SUCH STAKEHOLDERS WITH AN OPPORTUNITY
 TO REVIEW AND COMMENT UPON THE DRAFT PLAN PRIOR TO ITS SUBMISSION TO THE
 DEPARTMENT. PRODUCERS OR THE PRODUCER RESPONSIBILITY ORGANIZATION  SHALL
 MAKE  AN ASSESSMENT OF COMMENTS RECEIVED AND SHALL PROVIDE A SUMMARY AND
 AN ANALYSIS OF THE ISSUES RAISED BY STAKEHOLDERS AND SIGNIFICANT CHANGES
 SUGGESTED BY ANY SUCH COMMENTS, A  STATEMENT  OF  THE  REASONS  WHY  ANY
 SIGNIFICANT   CHANGES  WERE  NOT  INCORPORATED  INTO  THE  PLAN,  AND  A
 DESCRIPTION OF ANY CHANGES  MADE  TO  THE  PLAN  AS  A  RESULT  OF  SUCH
 COMMENTS.
   (G)  A  PROPOSED  MINIMUM POST-CONSUMER RECYCLED MATERIAL CONTENT RATE
 REQUIREMENT AND MINIMUM RECYCLING RATE FOR COVERED MATERIALS.  THE MINI-
 MUM RECYCLING RATE SHALL BE VARIED FOR EACH  COVERED  RECYCLED  MATERIAL
 AND SHALL INCLUDE PAPER PRODUCTS, GLASS, METAL, AND PLASTIC;
   (H)  A  DESCRIPTION  OF A PUBLIC EDUCATION PROGRAM PURSUANT TO SECTION
 27-3313 OF THIS TITLE;
   (I) HOW THE PRODUCERS, OR THE  PRODUCER  RESPONSIBILITY  ORGANIZATION,
 WILL  WORK  WITH  EXISTING  WASTE HAULERS, MATERIAL RECOVERY FACILITIES,
 RECYCLERS, AND MUNICIPALITIES TO OPERATE OR  EXPAND  CURRENT  COLLECTION
 PROGRAMS TO ADDRESS MATERIAL COLLECTION METHODS;
   (J)  A  DESCRIPTION  OF  HOW  PRODUCERS OR THE PRODUCER RESPONSIBILITY
 ORGANIZATION WILL USE OPEN, COMPETITIVE, AND FAIR PROCUREMENT  PRACTICES
 SHOULD  THEY  DIRECTLY  ENTER  INTO  CONTRACTUAL AGREEMENTS WITH SERVICE
 PROVIDERS, INCLUDING MUNICIPALITIES AND PRIVATE ENTITIES;
   (K) A DESCRIPTION OF HOW A MUNICIPALITY WILL PARTICIPATE, ON A  VOLUN-
 TARY  BASIS, WITH COLLECTION AND HOW EXISTING MUNICIPAL WASTE COLLECTION
 INFRASTRUCTURE WILL BE USED;
   (L) A DESCRIPTION OF HOW  THE  PRODUCER,  OR  PRODUCER  RESPONSIBILITY
 ORGANIZATION,  PLANS  TO  MEET THE CONVENIENCE REQUIREMENTS SET FORTH IN
 THIS TITLE;
   (M) A DESCRIPTION OF HOW  THE  PRODUCER,  OR  PRODUCER  RESPONSIBILITY
 ORGANIZATION, WILL MEET OR EXCEED THE MINIMUM RECYCLING RATE FOR A PROD-
 UCT;

 S. 1185--A                          7
 
   (N) A DESCRIPTION OF THE PROCESS FOR END-OF-LIFE MANAGEMENT, INCLUDING
 RECYCLING  AND  DISPOSAL,  USING  ENVIRONMENTALLY SOUND MANAGEMENT PRAC-
 TICES;
   (O)  A  DESCRIPTION OF HOW A PRODUCER RESPONSIBILITY ORGANIZATION WILL
 WORK WITH PRODUCERS TO  REDUCE  PACKAGING  THROUGH  PRODUCT  DESIGN  AND
 PROGRAM INNOVATIONS;
   (P)  A  DESCRIPTION OF HOW A PRODUCER RESPONSIBILITY ORGANIZATION WILL
 INVEST IN REUSE AND RECYCLING INFRASTRUCTURE AND MARKET  DEVELOPMENT  IN
 THE STATE, INCLUDING, BUT NOT LIMITED TO, INSTALLING OR UPGRADING EQUIP-
 MENT TO IMPROVE SORTING OF COVERED PRODUCTS OR MITIGATING THE IMPACTS OF
 COVERED PRODUCTS TO OTHER COMMODITIES AT EXISTING SORTING AND PROCESSING
 FACILITIES,  AND CAPITAL EXPENDITURES FOR NEW TECHNOLOGY, EQUIPMENT, AND
 FACILITIES.
   (Q) A PROCESS TO ADDRESS CONCERNS AND  QUESTIONS  FROM  CUSTOMERS  AND
 CONSUMERS; AND
   (R) ANY OTHER INFORMATION AS SPECIFIED BY THE DEPARTMENT THROUGH REGU-
 LATIONS.
   2.  THE  DEPARTMENT  SHALL  PROMULGATE  A REGISTRATION FEE SCHEDULE TO
 COVER ADMINISTRATIVE COSTS, INCLUDING A SCHEDULE FOR  RE-EVALUATING  THE
 FEE STRUCTURE ON AN ANNUAL BASIS.
 § 27-3309. PRODUCER RESPONSIBILITY PLAN APPROVAL.
   1.  NO  LATER  THAN  NINETY  DAYS AFTER THE SUBMISSION OF THE PRODUCER
 RESPONSIBILITY PLAN,  THE  DEPARTMENT  SHALL  MAKE  A  DETERMINATION  TO
 APPROVE THE PLAN AS SUBMITTED; APPROVE THE PLAN WITH CONDITIONS; OR DENY
 THE  PLAN.  THE  DEPARTMENT  SHALL  CONSIDER THE FOLLOWING IN WHETHER TO
 APPROVE A PLAN:
   (A) THE PLAN ADEQUATELY ADDRESSES ALL ELEMENTS  DESCRIBED  IN  SECTION
 27-3307  OF  THIS  TITLE  WITH SUFFICIENT DETAIL TO DEMONSTRATE THAT THE
 OBJECTIVE OF THE PLAN WILL BE MET;
   (B) THE PRODUCER HAS UNDERTAKEN SATISFACTORY CONSULTATION WITH  STAKE-
 HOLDERS, HAS PROVIDED AN OPPORTUNITY FOR STAKEHOLDER INPUT IN THE IMPLE-
 MENTATION AND OPERATION OF THE PLAN PRIOR TO SUBMISSION OF THE PLAN, AND
 HAS  THOROUGHLY  DESCRIBED HOW THE STAKEHOLDERS' INPUT WILL BE ADDRESSED
 BY AND INCORPORATED INTO THE PLAN PURSUANT TO PARAGRAPH (F) OF  SUBDIVI-
 SION ONE OF SECTION 27-3307 OF THIS TITLE;
   (C)  THE PLAN ADEQUATELY PROVIDES FOR: (I) THE PRODUCER COLLECTING AND
 FUNDING THE COSTS OF COLLECTING AND PROCESSING PRODUCTS COVERED  BY  THE
 PLAN  OR REIMBURSING A MUNICIPALITY; (II) THE FUNDING MECHANISM TO COVER
 THE ENTIRE COST OF THE  PROGRAM;  (III)  CONVENIENT  AND  FREE  CONSUMER
 ACCESS TO COLLECTION FACILITIES OR COLLECTION SERVICES; (IV) A FORMULAIC
 SYSTEM FOR EQUITABLE DISTRIBUTION OF FUNDS; AND (V) AN EVALUATION SYSTEM
 FOR  THE  FEE  STRUCTURE, WHICH SHALL BE EVALUATED ON AN ANNUAL BASIS BY
 THE PRODUCER RESPONSIBILITY ORGANIZATION AND RE-SUBMITTED TO THE DEPART-
 MENT ANNUALLY;
   (D) THE PLAN TAKES INTO CONSIDERATION A POST-CONSUMER CONTENT RATE AND
 RECYCLING RATE THAT WILL CREATE OR ENHANCE MARKETS FOR RECYCLED  MATERI-
 ALS  AND THERE IS A PLAN TO ADJUST THE MINIMUM RATES ON AN ANNUAL BASIS.
 SUCH RATES SHALL TAKE  INTO  CONSIDERATION  CURRENT  STATE  AND  FEDERAL
 RATES;
   (E) THE PLAN CREATES A CONVENIENT SYSTEM FOR CONSUMERS TO RECYCLE THAT
 IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR AS CONVENIENT AS
 THE PREVIOUS WASTE COLLECTION SCHEMA IN THE PARTICULAR JURISDICTION.
   (F) THE DEPARTMENT MAY ESTABLISH ADDITIONAL PLAN REQUIREMENTS IN ADDI-
 TION TO THOSE IDENTIFIED HEREIN TO FULFILL THE INTENT OF THIS TITLE.
   2.  NO  LATER THAN SIX MONTHS AFTER THE DATE THE PLAN IS APPROVED, THE
 PRODUCER, OR PRODUCER RESPONSIBILITY ORGANIZATION, SHALL  IMPLEMENT  THE

 S. 1185--A                          8
 
 APPROVED  PLAN.  THE  DEPARTMENT MAY RESCIND THE APPROVAL OF AN APPROVED
 PLAN AT ANY TIME.
 § 27-3311. COLLECTION AND CONVENIENCE.
   A  PRODUCER  OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL PROVIDE FOR
 WIDESPREAD, CONVENIENT, AND EQUITABLE ACCESS TO COLLECTION OPPORTUNITIES
 FOR THE COVERED PRODUCTS  IDENTIFIED  UNDER  THE  PRODUCER  OR  PRODUCER
 RESPONSIBILITY ORGANIZATION'S PLAN.  A PRODUCER RESPONSIBILITY ORGANIZA-
 TION  SHALL  ENSURE  SERVICES  CONTINUE  FOR ALL SINGLE AND MULTI-FAMILY
 RESIDENTIAL UNITS THAT A MUNICIPALITY SERVES AS OF THE EFFECTIVE DATE OF
 THIS ARTICLE, EITHER DIRECTLY OR THROUGH A CONTRACT TO PROVIDE SERVICES,
 AND THAT SUCH SERVICES ARE CONTINUED  THROUGH  THE  PLAN.    A  PRODUCER
 RESPONSIBILITY  ORGANIZATION  MAY  RELY  ON  A RANGE OF MEANS TO COLLECT
 VARIOUS CATEGORIES OF COVERED MATERIALS OR PRODUCTS INCLUDING,  BUT  NOT
 LIMITED  TO, CURBSIDE COLLECTION, DEPOT DROP-OFF, AND RETAILER TAKE-BACK
 SO LONG AS COVERED MATERIALS AND  PRODUCTS  COLLECTION  OPTIONS  INCLUDE
 CURBSIDE  OR  MULTI-FAMILY  RECYCLING  COLLECTION  SERVICES  PROVIDED BY
 MUNICIPAL  PROGRAMS,  MUNICIPAL   CONTRACTED   PROGRAMS,   SOLID   WASTE
 COLLECTION  COMPANIES,  OR  OTHER APPROVED ENTITIES AS IDENTIFIED BY THE
 DEPARTMENT IF:
   1. THE CATEGORY OF COVERED MATERIALS  AND  PRODUCTS  IS  SUITABLE  FOR
 RESIDENTIAL  CURBSIDE RECYCLING COLLECTION AND CAN BE EFFECTIVELY SORTED
 BY THE FACILITIES RECEIVING THE CURBSIDE COLLECTED MATERIAL;
   2. THE CATEGORY OF PAPER IS SUITABLE FOR RESIDENTIAL CURBSIDE  RECYCL-
 ING COLLECTION AND CAN BE EFFECTIVELY SORTED BY THE FACILITIES RECEIVING
 THE CURBSIDE COLLECTED MATERIAL;
   3.  THE  RECYCLING  FACILITY  PROVIDING PROCESSING AND SORTING SERVICE
 AGREES TO INCLUDE THE CATEGORY OF COVERED MATERIALS AND PRODUCTS  AS  AN
 ACCEPTED MATERIAL;
   4.  THE COVERED MATERIALS AND PRODUCTS CATEGORY IS NOT HANDLED THROUGH
 A DEPOSIT AND RETURN  SCHEME  OR  BUY  BACK  SYSTEM  THAT  RELIES  ON  A
 COLLECTION SYSTEM OTHER THAN CURBSIDE OR MULTI-FAMILY COLLECTION; AND
   5.  THE  PROVIDER OF THE RESIDENTIAL CURBSIDE RECYCLING SERVICE AGREES
 TO THE  PRODUCER  RESPONSIBILITY  ORGANIZATION  SERVICE  PROVIDER  COSTS
 ARRANGEMENT.
 § 27-3313. OUTREACH AND EDUCATION.
   1.  THE  PRODUCER,  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION,  SHALL
 PROVIDE EFFECTIVE OUTREACH, EDUCATION, AND COMMUNICATIONS  TO  CONSUMERS
 THROUGHOUT NEW YORK STATE REGARDING:
   (A) PROPER END-OF-LIFE MANAGEMENT OF COVERED PRODUCTS AND MATERIALS;
   (B)  THE LOCATION AND AVAILABILITY OF CURBSIDE AND DROP-OFF COLLECTION
 OPPORTUNITIES;
   (C) HOW TO PREVENT LITTER OF COVERED PRODUCTS MATERIALS; AND
   (D) RECYCLING AND COMPOSTING INSTRUCTIONS THAT ARE: CONSISTENT  STATE-
 WIDE,  EXCEPT  AS NECESSARY TO TAKE INTO ACCOUNT DIFFERENCES AMONG LOCAL
 LAWS AND PROCESSING CAPABILITIES; EASY TO UNDERSTAND; AND EASILY  ACCES-
 SIBLE.
   2.  THE OUTREACH AND EDUCATION REQUIRED PURSUANT TO SUBDIVISION ONE OF
 THIS SECTION SHALL:
   (A) BE DESIGNED TO ACHIEVE THE MANAGEMENT GOALS  OF  COVERED  PRODUCTS
 UNDER  THIS  TITLE, INCLUDING THE PREVENTION OF CONTAMINATION OF COVERED
 PRODUCTS;
   (B) INCORPORATE, AT  A  MINIMUM,  ELECTRONIC,  PRINT,  WEB-BASED,  AND
 SOCIAL  MEDIA  ELEMENTS  THAT  MUNICIPALITIES  COULD  UTILIZE  AT  THEIR
 DISCRETION;
   (C) BE COORDINATED ACROSS PROGRAMS TO AVOID CONFUSION FOR CONSUMERS;

 S. 1185--A                          9
 
   (D) INCLUDE, AT A MINIMUM:  CONSULTING  ON  EDUCATION,  OUTREACH,  AND
 COMMUNICATIONS WITH LOCAL GOVERNMENTS AND OTHER STAKEHOLDERS; COORDINAT-
 ING  WITH  AND  ASSISTING LOCAL MUNICIPAL PROGRAMS, MUNICIPAL CONTRACTED
 PROGRAMS, SOLID WASTE COLLECTION COMPANIES, AND OTHER ENTITIES PROVIDING
 SERVICES;  AND  DEVELOPING  AND  PROVIDING OUTREACH AND EDUCATION TO THE
 DIVERSE ETHNIC POPULATIONS IN THE STATE; AND
   (E) A PLAN TO WORK  WITH  PARTICIPATING  PRODUCERS  TO  LABEL  COVERED
 PRODUCTS  WITH  INFORMATION  TO ASSIST CONSUMERS IN RESPONSIBLY MANAGING
 AND RECYCLING COVERED PRODUCTS.
   3. THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL  CONSULT
 WITH  MUNICIPALITIES ON THE DEVELOPMENT OF EDUCATIONAL MATERIALS AND MAY
 COORDINATE WITH MUNICIPALITIES ON OUTREACH AND COMMUNICATION.
   4. THE DEPARTMENT SHALL DETERMINE THE EFFECTIVENESS  OF  OUTREACH  AND
 EDUCATION  EFFORTS  UNDER  THIS SECTION TO DETERMINE WHETHER CHANGES ARE
 NECESSARY TO IMPROVE THOSE OUTREACH AND EDUCATION  EFFORTS  AND  DEVELOP
 INFORMATION  THAT  MAY BE USED TO IMPROVE OUTREACH AND EDUCATION EFFORTS
 UNDER THIS SECTION.
   5. THE PRODUCER RESPONSIBILITY ORGANIZATION SHALL UNDERTAKE  OUTREACH,
 EDUCATION,  AND COMMUNICATIONS THAT ASSIST IN ATTAINING OR EXCEEDING THE
 MINIMUM POST-CONSUMER CONTENT AND RECOVERY RATES.
 § 27-3315. REPORTING REQUIREMENTS AND AUDITS.
   1. ON OR BEFORE ONE YEAR AFTER A PRODUCER OR  PRODUCER  RESPONSIBILITY
 ORGANIZATION'S  FIRST  PLAN  IS  APPROVED, AND ANNUALLY THEREAFTER, EACH
 PRODUCER, OR PRODUCER RESPONSIBILITY ORGANIZATION ACTING AS THEIR DESIG-
 NATED AGENT, SHALL SUBMIT A REPORT TO THE COMMISSIONER THAT DETAILS  THE
 PROGRAM  FOR THE PRIOR YEAR'S PROGRAM. THE REPORT SHALL BE POSTED ON THE
 DEPARTMENT'S WEBSITE AND ON THE WEBSITE OF  THE  PRODUCER,  OR  PRODUCER
 RESPONSIBILITY ORGANIZATION ACTING AS THEIR DESIGNATED AGENT. SUCH ANNU-
 AL REPORT SHALL INCLUDE:
   (A)  A  DETAILED DESCRIPTION OF THE METHODS USED TO COLLECT, TRANSPORT
 AND  PROCESS  COVERED  MATERIALS  AND   PRODUCTS   INCLUDING   DETAILING
 COLLECTION  METHODS MADE AVAILABLE TO CONSUMERS AND AN EVALUATION OF THE
 PROGRAM'S COLLECTION CONVENIENCE;
   (B) A DESCRIPTION ON THE STATUS OF ACHIEVING THE  POST-CONSUMER  RECY-
 CLED  CONTENT  REQUIREMENTS  AS  SET  FORTH IN THE PLAN PURSUANT TO THIS
 TITLE, AND WHAT EFFORTS ARE PROPOSED IN THE EVENT OF FAILING TO  ACHIEVE
 SUCH GOALS;
   (C)  THE OVERALL WEIGHT OF COVERED MATERIALS AND PRODUCTS COLLECTED IN
 THE STATE BY MATERIAL TYPE;
   (D) THE WEIGHT AND TYPE OF COVERED MATERIALS AND PRODUCTS COLLECTED IN
 THE STATE BY THE METHOD OF DISPOSITION BY MATERIAL TYPE;
   (E) THE TOTAL COST OF IMPLEMENTING THE PROGRAM, AS  DETERMINED  BY  AN
 INDEPENDENT FINANCIAL AUDIT, AS PERFORMED BY AN INDEPENDENT AUDITOR;
   (F)  INFORMATION  REGARDING THE INDEPENDENTLY AUDITED FINANCIAL STATE-
 MENTS DETAILING ALL  PAYMENTS  RECEIVED  AND  ISSUED  BY  THE  PRODUCERS
 COVERED BY THE APPROVED PLAN;
   (G) A COPY OF THE INDEPENDENT AUDIT;
   (H)  A DETAILED DESCRIPTION OF WHETHER THE PROGRAM COMPENSATES MUNICI-
 PALITIES, SOLID WASTE COLLECTION, SORTING AND PROCESSING FACILITIES, AND
 OTHER APPROVED ENTITIES FOR THEIR RECYCLING EFFORTS  AND  OTHER  RELATED
 SERVICES PROVIDED BY THE ABOVE ENTITIES;
   (I)  SAMPLES  OF  ALL  EDUCATIONAL  MATERIALS PROVIDED TO CONSUMERS OR
 OTHER ENTITIES;
   (J) A DETAILED LIST OF EFFORTS UNDERTAKEN AND  AN  EVALUATION  OF  THE
 METHODS USED TO DISSEMINATE SUCH MATERIALS INCLUDING RECOMMENDATIONS, IF

 S. 1185--A                         10
 
 ANY,  FOR  HOW THE EDUCATIONAL COMPONENT OF THE PROGRAM CAN BE IMPROVED;
 AND
   (K) A DETAILED DESCRIPTION OF INVESTMENTS MADE IN REUSE AND  RECYCLING
 INFRASTRUCTURE AND MARKET DEVELOPMENT.
   2.  THE DEPARTMENT SHALL NOT REQUIRE PUBLIC REPORTING OF ANY CONFIDEN-
 TIAL INFORMATION THAT THE DEPARTMENT FINDS TO BE  PROTECTED  PROPRIETARY
 INFORMATION.  FOR PURPOSES OF THIS TITLE, PROTECTED PROPRIETARY INFORMA-
 TION SHALL MEAN INFORMATION THAT, IF MADE PUBLIC, WOULD DIVULGE  COMPET-
 ITIVE  BUSINESS INFORMATION, METHODS OR PROCESSES ENTITLED TO PROTECTION
 AS TRADE SECRETS OF SUCH PRODUCER OR PRODUCER  RESPONSIBILITY  ORGANIZA-
 TION OR INFORMATION THAT WOULD REASONABLY HINDER THE PRODUCER OR PRODUC-
 ER  RESPONSIBILITY  ORGANIZATION'S  COMPETITIVE ADVANTAGE IN THE MARKET-
 PLACE.
 § 27-3317. ANTITRUST PROTECTIONS.
   A PRODUCER RESPONSIBILITY ORGANIZATION, INCLUDING  OFFICERS,  MEMBERS,
 EMPLOYEES AND AGENTS THEREOF, SHALL BE IMMUNE FROM LIABILITY FOR CONDUCT
 UNDER STATE LAWS RELATING TO ANTITRUST, RESTRAINT OF TRADE, UNFAIR TRADE
 PRACTICES,  AND OTHER REGULATION OF TRADE OR COMMERCE ONLY TO THE EXTENT
 NECESSARY TO PLAN AND IMPLEMENT COMPLIANCE WITH THIS SECTION.
 § 27-3319. PENALTIES.
   1. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ANY PERSON OR  ENTITY
 THAT  VIOLATES  ANY  PROVISION  OF  OR FAILS TO PERFORM ANY DUTY IMPOSED
 PURSUANT TO THIS TITLE OR ANY RULE OR  REGULATION  PROMULGATED  PURSUANT
 THERETO,  OR  ANY TERM OR CONDITION OF ANY REGISTRATION OR PERMIT ISSUED
 PURSUANT THERETO, OR ANY FINAL DETERMINATION OR ORDER OF THE COMMISSION-
 ER MADE PURSUANT TO THIS ARTICLE OR ARTICLE SEVENTY-ONE OF THIS  CHAPTER
 SHALL  BE  LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS
 FOR EACH VIOLATION AND AN ADDITIONAL  PENALTY  OF  NOT  MORE  THAN  FIVE
 HUNDRED DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES.
   2.  (A)  ANY  PRODUCER  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION WHO
 VIOLATES ANY PROVISION OF OR FAILS TO PERFORM ANY DUTY IMPOSED  PURSUANT
 TO THIS TITLE OR ANY RULE OR REGULATION PROMULGATED PURSUANT THERETO, OR
 ANY  TERM  OR  CONDITION  OF  ANY REGISTRATION OR PERMIT ISSUED PURSUANT
 THERETO, OR ANY FINAL DETERMINATION OR ORDER OF  THE  COMMISSIONER  MADE
 PURSUANT TO THIS ARTICLE OR ARTICLE SEVENTY-ONE OF THIS CHAPTER SHALL BE
 LIABLE  FOR A CIVIL PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH
 VIOLATION AND AN ADDITIONAL PENALTY OF NOT MORE THAN ONE  THOUSAND  FIVE
 HUNDRED  DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES. FOR
 A SECOND VIOLATION COMMITTED WITHIN TWELVE MONTHS OF A PRIOR  VIOLATION,
 THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE LIABLE FOR
 A  CIVIL  PENALTY  NOT  TO EXCEED TEN THOUSAND DOLLARS AND AN ADDITIONAL
 PENALTY OF NOT MORE THAN THREE THOUSAND  DOLLARS  FOR  EACH  DAY  DURING
 WHICH  SUCH  VIOLATION  CONTINUES.  FOR  A THIRD OR SUBSEQUENT VIOLATION
 COMMITTED WITHIN TWELVE MONTHS OF ANY PRIOR VIOLATION, THE  PRODUCER  OR
 PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE LIABLE FOR A CIVIL PENALTY
 NOT  TO  EXCEED TWENTY THOUSAND DOLLARS AND AN ADDITIONAL PENALTY OF SIX
 THOUSAND DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES.
   (B) ALL PRODUCERS PARTICIPATING IN A PRODUCER RESPONSIBILITY ORGANIZA-
 TION SHALL BE JOINTLY AND SEVERALLY LIABLE FOR  ANY  PENALTIES  ASSESSED
 AGAINST  THE PRODUCER RESPONSIBILITY ORGANIZATION PURSUANT TO THIS TITLE
 AND ARTICLE SEVENTY-ONE OF THIS CHAPTER.
   3. CIVIL PENALTIES UNDER THIS SECTION SHALL BE ASSESSED BY THE DEPART-
 MENT AFTER AN OPPORTUNITY TO BE HEARD  PURSUANT  TO  THE  PROVISIONS  OF
 SECTION  71-1709  OF  THIS  CHAPTER,  OR  BY  THE COURT IN ANY ACTION OR
 PROCEEDING PURSUANT TO SECTION 71-2727 OF THIS CHAPTER, AND IN  ADDITION
 THERETO,  SUCH  PERSON OR ENTITY MAY BY SIMILAR PROCESS BE ENJOINED FROM

 S. 1185--A                         11
 
 CONTINUING SUCH VIOLATION AND ANY PERMIT, REGISTRATION OR OTHER APPROVAL
 ISSUED BY THE DEPARTMENT MAY  BE  REVOKED  OR  SUSPENDED  OR  A  PENDING
 RENEWAL DENIED.
   4.  THE  DEPARTMENT  AND THE ATTORNEY GENERAL ARE HEREBY AUTHORIZED TO
 ENFORCE THE PROVISIONS OF THIS TITLE AND ALL MONIES COLLECTED  SHALL  BE
 DEPOSITED TO THE CREDIT OF THE ENVIRONMENTAL PROTECTION FUND ESTABLISHED
 PURSUANT TO SECTION NINETY-TWO-S OF THE STATE FINANCE LAW.
 § 27-3321. STATE PREEMPTION.
   JURISDICTION IN ALL MATTERS PERTAINING TO COSTS AND FUNDING MECHANISMS
 OF  PRODUCER  RESPONSIBILITY  ORGANIZATIONS  RELATING TO THE RECOVERY OF
 COVERED MATERIALS BY  THIS  TITLE,  VESTED  EXCLUSIVELY  IN  THE  STATE;
 PROVIDED,  HOWEVER,  THAT (I) NOTHING IN THIS SECTION SHALL PRECLUDE ANY
 CITY, TOWN, VILLAGE OR OTHER LOCAL PLANNING UNITS, WHICH ALREADY HAS  IN
 PLACE  ON  THE  EFFECTIVE DATE OF THIS TITLE ANY LOCAL LAW, ORDINANCE OR
 REGULATION  GOVERNING  A  MUNICIPALLY-OPERATED  RECYCLING   PROGRAM   OR
 COLLECTION  PROGRAM OPERATED ON BEHALF OF SUCH MUNICIPALITY, FROM DETER-
 MINING WHAT MATERIALS SHALL BE INCLUDED FOR RECYCLING IN SUCH  MUNICIPAL
 RECYCLING  COLLECTION  PROGRAM,  OR  SHALL  PRECLUDE ANY SUCH LOCAL LAW,
 ORDINANCE OR REGULATION WHICH PROVIDES ENVIRONMENTAL PROTECTION EQUAL TO
 OR GREATER THAN THE PROVISIONS OF THIS TITLE OR RULES PROMULGATED  HERE-
 UNDER,  AND  (II)  THAT  NOTHING IN THIS SECTION SHALL PRECLUDE A PERSON
 FROM COORDINATING, FOR RECYCLING OR REUSE,  THE  COLLECTION  OF  COVERED
 MATERIALS AND PRODUCTS.
 § 27-3323. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
   THE  COMMISSIONER  SHALL  HAVE THE POWER TO PROMULGATE RULES AND REGU-
 LATIONS NECESSARY AND APPROPRIATE FOR THE ADMINISTRATION OF THIS TITLE.
 § 27-3325. SEVERABILITY.
   THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE  AND  IF  ANY  PHRASE,
 CLAUSE, SENTENCE OR PROVISION OF THIS TITLE OR THE APPLICABILITY THEREOF
 TO  ANY  PERSON  OR CIRCUMSTANCE SHALL BE HELD INVALID, THE REMAINDER OF
 THIS TITLE AND THE APPLICATION THEREOF SHALL NOT BE AFFECTED THEREBY.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1185--C
     Cal. No. 240
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              January 8, 2021
                                ___________
 
 Introduced by Sens. KAMINSKY, HINCHEY, ADDABBO, BIAGGI, BRISPORT, BROUK,
   COMRIE,  GAUGHRAN,  GOUNARDES,  HARCKHAM,  HOYLMAN,  JACKSON,  KAPLAN,
   KAVANAGH, KRUEGER, LIU, MAY, MAYER,  MYRIE,  RAMOS,  REICHLIN-MELNICK,
   SEPULVEDA, 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 committee  --  reported  favorably  from  said
   committee,  ordered  to  first  and  second report, ordered to a third
   reading, amended and ordered reprinted, retaining  its  place  in  the
   order of third reading -- again amended and ordered reprinted, retain-
   ing its place in the order of third reading
 
 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:
 
   Section  1.  Legislative  intent.  The legislature finds the amount of
 waste generated in New York is a threat to the environment. The legisla-
 ture further finds and declares that it is in the public interest of the
 state of New York for covered material and product producers  to  under-
 take the responsibility for the development and implementation of strat-
 egies  to  promote  reduction, reuse, recovery, and recycling of covered
 materials and products through investments  in  the  end-of-product-life
 management of products, printed paper, and product packaging.
   §  2.  Article  27 of the environmental conservation law is amended by
 adding a new title 33 to read as follows:
                                 TITLE 33
                   EXTENDED PRODUCER RESPONSIBILITY ACT
 SECTION 27-3301. DEFINITIONS.
         27-3303. PRODUCER RESPONSIBILITY ADVISORY BOARD.
         27-3305. PRODUCER RESPONSIBILITIES.
         27-3307. FUNDING MECHANISM.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01205-11-1

 S. 1185--C                          2
 
         27-3309. PRODUCER RESPONSIBILITY PLAN AND NEEDS ASSESSMENT.
         27-3311. PRODUCER RESPONSIBILITY PLAN APPROVAL.
         27-3313. COLLECTION AND CONVENIENCE.
         27-3315. OUTREACH AND EDUCATION.
         27-3317. REPORTING REQUIREMENTS AND AUDITS.
         27-3319. ANTITRUST PROTECTIONS.
         27-3321. PENALTIES.
         27-3323. STATE PREEMPTION.
         27-3325. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
         27-3327. OTHER ASSISTANCE PROGRAMS.
         27-3329. SEVERABILITY.
 § 27-3301. DEFINITIONS.
   AS USED IN THIS TITLE:
   1. "COVERED MATERIALS AND PRODUCTS" SHALL INCLUDE, BUT ARE NOT LIMITED
 TO, THE FOLLOWING CLASSES OF MATERIALS:
   (A)  CONTAINERS  AND  PACKAGING:   ANY PART OF A PACKAGE OR CONTAINER,
 REGARDLESS  OF  RECYCLABILITY,  THAT  INCLUDES  MATERIAL  USED  FOR  THE
 CONTAINMENT,  PROTECTION,  HANDLING,  DELIVERY, OR PRESENTATION OF GOODS
 THAT ARE SOLD, OFFERED FOR SALE, OR DISTRIBUTED TO CONSUMERS, VIA RETAIL
 COMMERCE, IN THE STATE, INCLUDING THROUGH AN INTERNET TRANSACTION.  THIS
 CLASS  INCLUDES ALL FLEXIBLE, FOAM, OR RIGID MATERIAL, INCLUDING BUT NOT
 LIMITED TO PAPER, CARTON, PLASTIC, GLASS, OR METAL, AND ANY  COMBINATION
 OF SUCH MATERIALS THAT:
   (I)  IS  INTENDED AT POINT OF SALE TO CONTAIN, PROTECT, WRAP, PRESENT,
 OR DELIVER PRODUCTS FROM THE RESPONSIBLE PARTY TO THE ULTIMATE  USER  OR
 CONSUMER,  INCLUDING  TERTIARY  PACKAGING  USED  FOR  TRANSPORTATION  OR
 DISTRIBUTION DIRECTLY TO A CONSUMER;
   (II) IS INTENDED FOR SINGLE OR SHORT-TERM USE AND DESIGNED TO CONTAIN,
 PROTECT OR WRAP PRODUCTS, INCLUDING SECONDARY PACKAGING INTENDED FOR THE
 CONSUMER MARKET; OR
   (III) DOES NOT INCLUDE PACKAGING USED FOR THE LONG-TERM PROTECTION  OR
 STORAGE OF A PRODUCT OR WITH A LIFE OF NOT LESS THAN FIVE YEARS.
   (B) PAPER PRODUCTS: THIS CLASS INCLUDES:
   (I) PAPER AND OTHER CELLULOSIC FIBERS;
   (II)  CONTAINERS  OR PACKAGING USED TO DELIVER PRINTED MATTER DIRECTLY
 TO THE ULTIMATE CONSUMER OR RECIPIENT;
   (III) PAPER OF ANY DESCRIPTION, INCLUDING BUT NOT LIMITED TO:
   (1) FLYERS;
   (2) BROCHURES;
   (3) BOOKLETS;
   (4) CATALOGS;
   (5) TELEPHONE DIRECTORIES;
   (6) PAPER FIBER; AND
   (7) PAPER USED FOR WRITING OR ANY OTHER PURPOSE.
   (C) SINGLE-USE PLASTICS:  THIS  CLASS  INCLUDES  PLASTIC  PRODUCTS  AS
 DETERMINED  BY  THE  DEPARTMENT  THROUGH  REGULATIONS, THAT FREQUENT THE
 RESIDENTIAL WASTE STREAM OR ARE PLASTIC PRODUCTS THAT HAVE THE EFFECT OF
 SEVERELY DISRUPTING RECYCLING PROCESSES, INCLUDING, BUT NOT LIMITED  TO,
 SINGLE  USE  PLASTIC  ITEMS  SUCH AS STRAWS, UTENSILS, CUPS, PLATES, AND
 PLASTIC BAGS.   THE PRODUCER  RESPONSIBILITY  ORGANIZATION  OR  ADVISORY
 BOARD  MAY ALSO MAKE RECOMMENDATIONS TO THE DEPARTMENT REGARDING SINGLE-
 USE PLASTICS THAT SHOULD BE COVERED UNDER THIS TITLE.
   (D) FOR THE PURPOSE OF THIS TITLE, THE  PRODUCTS  COVERED  DESIGNATION
 DOES NOT INCLUDE THE FOLLOWING:
   (I)  COVERED MATERIALS OR PRODUCTS THAT COULD BECOME UNSAFE OR UNSANI-
 TARY TO RECYCLE BY VIRTUE OF THEIR ANTICIPATED USE;

 S. 1185--C                          3
 
   (II) PERIODICALS, MAGAZINES, NEWSPAPERS OR LITERARY, TEXT, AND  REFER-
 ENCE BOUND BOOKS;
   (III)  BEVERAGE CONTAINERS AS DEFINED IN SECTION 27-1003 OF THIS ARTI-
 CLE ON WHICH A DEPOSIT IS REQUIRED TO BE INITIATED;
   (IV) ARCHITECTURAL PAINT CONTAINERS COLLECTED AND MANAGED PURSUANT  TO
 TITLE TWENTY OF THIS ARTICLE;
   (V)  MEDICAL DEVICES AND COVERED MATERIALS AND PRODUCTS REGULATED AS A
 DRUG, MEDICAL DEVICE OR DIETARY SUPPLEMENT BY THE  U.S.  FOOD  AND  DRUG
 ADMINISTRATION UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, 21 U.S.C.
 321  ET  SEQ., SEC. 3.2(E) OF 21 U.S. CODE OF FEDERAL REGULATIONS OR THE
 DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT;
   (VI) ANIMAL BIOLOGICS, INCLUDING VACCINES, BACTERINS, ANTISERA,  DIAG-
 NOSTIC  KITS, AND OTHER PRODUCTS OF BIOLOGICAL ORIGIN, AND OTHER COVERED
 MATERIALS REGULATED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE UNDER
 THE VIRUS, SERUM, TOXIN ACT, 21 U.S.C. 151-159;
   (VII) COVERED MATERIALS USED TO CONTAIN TOXIC OR HAZARDOUS  MATERIALS,
 OR REGULATED BY THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT,
 7  U.S.C. SEC.136 ET SEQ. OR OTHER APPLICABLE FEDERAL LAW, RULE OR REGU-
 LATION.
   2. "CURBSIDE RECYCLING" MEANS A RECYCLING PROGRAM THAT SERVES RESIDEN-
 TIAL UNITS, OR SCHOOLS, STATE OR LOCAL AGENCIES, OR  INSTITUTIONS  WHERE
 SUCH  SCHOOLS, STATE OR LOCAL AGENCIES, OR INSTITUTIONS WERE ELIGIBLE TO
 BE SERVED UNDER A CONTRACT WITH A MUNICIPALITY BY A  MUNICIPALITY  OR  A
 PRIVATE  SECTOR  HAULER AS OF THE EFFECTIVE DATE OF THIS TITLE, AND SUCH
 RECYCLING PROGRAM IS  OPERATED  BY  A  MUNICIPALITY  OR  PURSUANT  TO  A
 CONTRACT  WITH  THE MUNICIPALITY, PRIVATE SECTOR HAULER, OR OTHER PUBLIC
 AGENCY OR THROUGH APPROVED LOCAL SOLID WASTE MANAGEMENT PLANS.
   3. "POST-CONSUMER MATERIAL" MEANS ONLY THOSE COVERED PRODUCTS OR MATE-
 RIALS GENERATED BY A  BUSINESS  OR  CONSUMER  WHICH  HAVE  SERVED  THEIR
 INTENDED  END  USE  AS  CONSUMER  ITEMS AND WHICH HAVE BEEN SEPARATED OR
 DIVERTED FROM THE WASTE STREAM FOR THE PURPOSES OF COLLECTION AND  RECY-
 CLING  AS  A  SECONDARY  MATERIAL FEEDSTOCK, BUT SHALL NOT INCLUDE WASTE
 MATERIAL GENERATED DURING OR AFTER THE COMPLETION OF A MANUFACTURING  OR
 CONVERTING PROCESS.
   4.  "POST-CONSUMER  RECYCLED  CONTENT"  MEANS THE CONTENT OF A PRODUCT
 MADE FROM POST-CONSUMER RECYCLED MATERIALS OR FEEDSTOCK.
   5.  "PRODUCER" MEANS AN ENTITY THAT SHALL  BE  DETERMINED  TO  BE  THE
 PRODUCER, FOR THE PURPOSES OF THIS TITLE, BASED ON THE FOLLOWING HIERAR-
 CHY:
   (A)  THE  PERSON  OR  COMPANY WHO USES THE COVERED MATERIAL OR PRODUCT
 UNDER SUCH PERSON'S OWN NAME OR BRAND AND WHO SELLS OR OFFERS  FOR  SALE
 THE PRODUCT THAT USES COVERED MATERIAL IN THE STATE; OR
   (B)  THE  PERSON  OR COMPANY WHO IMPORTS THE PRODUCT THAT USES COVERED
 MATERIAL AS THE OWNER OR LICENSEE OF A TRADEMARK OR  BRAND  UNDER  WHICH
 THE PRODUCT IS SOLD OR DISTRIBUTED IN THE STATE; OR
   (C)  THE PERSON OR COMPANY THAT OFFERS FOR SALE, SELLS, OR DISTRIBUTES
 THE PRODUCT THAT USES THE COVERED MATERIAL OR PRODUCT IN THE STATE.
   A PRODUCER SHALL NOT INCLUDE A  MUNICIPALITY  OR  A  LOCAL  GOVERNMENT
 PLANNING  UNIT,  OR  A  REGISTERED  501(C)(3) CHARITABLE ORGANIZATION OR
 501(C)(4) SOCIAL WELFARE ORGANIZATION.
   6.  "PRODUCER  RESPONSIBILITY  ORGANIZATION"  MEANS  A  NOT-FOR-PROFIT
 ORGANIZATION  DESIGNATED  BY  A GROUP OF PRODUCERS TO ACT AS AN AGENT ON
 BEHALF OF EACH PRODUCER TO DEVELOP AND IMPLEMENT A PRODUCER RESPONSIBIL-
 ITY PLAN, OR A REGISTERED  501(C)(3)  CHARITABLE  ORGANIZATION.  TO  THE
 EXTENT  APPLICABLE,  A PRODUCER RESPONSIBILITY ORGANIZATION SHALL HAVE A
 GOVERNING BOARD THAT REPRESENTS  THE  DIVERSITY  OF  PRODUCERS  AND  THE

 S. 1185--C                          4

 COVERED  MATERIALS  AND  PRODUCT TYPES AND SUCH BOARD SHALL INCLUDE NON-
 VOTING MEMBERS REPRESENTING A DIVERSITY OF MATERIAL TRADE ASSOCIATIONS.
   7.  "READILY-RECYCLABLE"  MEANS COVERED MATERIALS OR PRODUCTS INCLUDED
 IN THE MINIMUM RECYCLABLES LIST PURSUANT TO  SUBDIVISION  5  OF  SECTION
 27-3313  OF  THIS TITLE.   READILY-RECYCLABLE DOES NOT INCLUDE MATERIALS
 THAT CONTAIN TOXIC SUBSTANCES, AS DEFINED IN THIS TITLE.
   8. "RECOVERY" MEANS THE DIVERSION OF  COVERED  MATERIALS  OR  PRODUCTS
 THAT MIGHT BE DISPOSED OF OR BECOME WASTE.
   9.  "RECOVERY  RATE" MEANS THE AMOUNT OF COVERED MATERIALS OR PRODUCTS
 RECOVERED OVER A PROGRAM YEAR DIVIDED BY THE AMOUNT OF PRODUCT PRODUCED,
 EXPRESSED AS A PERCENTAGE.
   10. "RECYCLING" MEANS REPROCESSING, BY MEANS OF A MANUFACTURING  PROC-
 ESS,  OF A USED MATERIAL INTO A PRODUCT, A COMPONENT INCORPORATED INTO A
 PRODUCT, OR  A  SECONDARY  (RECYCLED)  RAW  MATERIAL.  "RECYCLING",  FOR
 PURPOSES  OF  THIS  TITLE,  DOES  NOT  INCLUDE ENERGY RECOVERY OR ENERGY
 GENERATION BY MEANS OF COMBUSTION, USE AS A FUEL, OR  LANDFILL  DISPOSAL
 OF  DISCARDED  COVERED MATERIALS OR PRODUCTS OR DISCARDED PRODUCT COMPO-
 NENT MATERIALS OR CHEMICAL CONVERSION PROCESSES, AS  DETERMINED  BY  THE
 DEPARTMENT TO NOT QUALIFY IN THE STATE AS RECYCLING.
   11. "RECYCLING RATE" MEANS THE PERCENTAGE OF DISCARDED COVERED MATERI-
 ALS  OR  PRODUCTS THAT IS MANAGED THROUGH RECYCLING OR REUSE, AS DEFINED
 BY THIS TITLE, AND IS COMPUTED  BY  DIVIDING  THE  AMOUNT  OF  DISCARDED
 COVERED  PRODUCTS  RECYCLED  OR  REUSED BY THE TOTAL AMOUNT OF DISCARDED
 COVERED PRODUCTS COLLECTED OVER A PROGRAM YEAR.
   12. "REUSE" MEANS SELLING A DISCARDED COVERED PRODUCT  BACK  INTO  THE
 MARKET FOR ITS ORIGINAL INTENDED USE, WHEN THE DISCARDED COVERED PRODUCT
 RETAINS ITS ORIGINAL PERFORMANCE CHARACTERISTICS AND CAN BE USED FOR ITS
 ORIGINAL  PURPOSE  OR COVERED MATERIALS OR PRODUCTS THAT ARE INTENDED TO
 BE REFILLED FOR THE SAME OR SIMILAR PURPOSE BY THE PRODUCER.
   13. "RETAILER" MEANS A PERSON WHO SELLS OR OFFERS FOR SALE  A  PRODUCT
 TO  A  CONSUMER, INCLUDING SALES MADE THROUGH AN INTERNET TRANSACTION TO
 BE DELIVERED TO A CONSUMER IN THE STATE.
   14. "TOXIC SUBSTANCE" MEANS ANY INTENTIONALLY ADDED CHEMICALS  CLASSI-
 FIED  BY  THE  EUROPEAN  UNION AS CARCINOGENS, MUTAGENS, OR REPRODUCTIVE
 TOXICANTS PURSUANT TO CATEGORY 1A OR 1B IN ANNEX VI TO  REGULATION  (EC)
 1272/2008  OR ANY SUBSTANCE WHICH IS IDENTIFIED OR LISTED AS A HAZARDOUS
 WASTE OR ACUTE HAZARDOUS WASTE IN REGULATIONS  PROMULGATED  PURSUANT  TO
 SECTION 27-0903 OF THIS CHAPTER.
 § 27-3303. PRODUCER RESPONSIBILITY ADVISORY BOARD.
   1.  THERE  IS  HEREBY  ESTABLISHED  WITHIN  THE  DEPARTMENT A PRODUCER
 RESPONSIBILITY  ADVISORY  BOARD,  HEREINAFTER  THE  ADVISORY  BOARD,  TO
 RECEIVE AND REVIEW THE PRODUCER RESPONSIBILITY PLANS REQUIRED UNDER THIS
 TITLE AND TO MAKE RECOMMENDATIONS TO THE DEPARTMENT REGARDING THE PLAN'S
 APPROVAL.
   2.  (A)  THE  ADVISORY  BOARD  SHALL  BE  COMPOSED OF AN ODD NUMBER OF
 MEMBERS AND THE COMMISSIONER SHALL APPOINT AT LEAST ONE MEMBER FROM EACH
 OF THE FOLLOWING: A  MUNICIPALITY  ASSOCIATION  OR  MUNICIPAL  RECYCLING
 PROGRAM,  INCLUDING  AN  ADDITIONAL MUNICIPAL REPRESENTATIVE FROM CITIES
 WITH A POPULATION OF ONE MILLION OR MORE RESIDENTS; A STATEWIDE ENVIRON-
 MENTAL ORGANIZATION; A REPRESENTATIVE OF ENVIRONMENTAL JUSTICE  COMMUNI-
 TIES OR ORGANIZATIONS; A STATEWIDE WASTE DISPOSAL ASSOCIATION; A MATERI-
 ALS  RECOVERY FACILITY LOCATED WITHIN THE STATE OF NEW YORK; A RECYCLING
 COLLECTION PROVIDER; A MANUFACTURER  OF  PACKAGING  MATERIALS  UTILIZING
 POST-CONSUMER  RECYCLED  CONTENT;  A  MANUFACTURER  OF  PAPER  MATERIALS
 UTILIZING POST-CONSUMER RECYCLED CONTENT; A CONSUMER ADVOCATE; A RETAIL-

 S. 1185--C                          5
 
 ER; A PUBLIC HEALTH SPECIALIST; AND A PRODUCER OR PRODUCER  RESPONSIBIL-
 ITY ORGANIZATION ESTABLISHED UNDER THIS TITLE AS NON-VOTING MEMBERS.
   (B) APPOINTMENTS TO THE ADVISORY BOARD SHALL BE MADE NO LATER THAN ONE
 YEAR AFTER THE EFFECTIVE DATE OF THIS TITLE.
   3.  THE  ADVISORY BOARD SHALL MEET AT LEAST ONCE A YEAR BY THE CALL OF
 THE CHAIR OR BY REQUEST OF MORE THAN HALF THE VOTING MEMBERS.
   4. (A) EACH PRODUCER RESPONSIBILITY PLAN PREPARED  BY  A  PRODUCER  OR
 PRODUCER  RESPONSIBILITY  ORGANIZATION  PURSUANT  TO THIS TITLE SHALL BE
 SUBMITTED TO THE ADVISORY BOARD, WHICH SHALL CONSIDER WHETHER  THE  PLAN
 MEETS THE CRITERIA AND OBJECTIVES OF THIS TITLE.
   (B)  THE ADVISORY BOARD SHALL, WITHIN NINETY DAYS OF THE SUBMISSION OF
 THE PRODUCER RESPONSIBILITY PLAN, EITHER:  (I) FORWARD THE PLAN  TO  THE
 COMMISSIONER  WITH ITS RECOMMENDATION FOR APPROVAL; OR  (II) FORWARD THE
 PLAN TO THE COMMISSIONER WITH ITS DISAPPROVAL AND STATED REASONS  THERE-
 FOR,  INCLUDING  ANY  RECOMMENDED  CHANGES  TO  THE  PLAN  NECESSARY FOR
 APPROVAL.
   (C) A PRODUCER RESPONSIBILITY ORGANIZATION  MAY  RESUBMIT  A  PRODUCER
 RESPONSIBILITY  PLAN  FOR  APPROVAL AT ANY TIME. UPON SUCH RESUBMISSION,
 THE ADVISORY BOARD SHALL, WITHIN NINETY DAYS, FORWARD THE  PLAN  TO  THE
 COMMISSIONER WITH ITS RECOMMENDATION FOR APPROVAL OR DISAPPROVAL.
   5.  THE  ADVISORY  BOARD SHALL REVIEW THE SUBMITTED ANNUAL REPORTS AND
 MAKE SUCH RECOMMENDATIONS TO THE DEPARTMENT AND THE  PRODUCER  RESPONSI-
 BILITY ORGANIZATION FOR IMPROVING THE PLAN.
   6. THE DECISIONS OF THE ADVISORY BOARD SHALL BE BY VOTE OF THE MAJORI-
 TY OF ITS MEMBERSHIP.
 § 27-3305. PRODUCER RESPONSIBILITIES.
   1.  WITHIN  FOUR  YEARS  AFTER  THE  EFFECTIVE  DATE OF THIS TITLE, NO
 PRODUCER SHALL SELL, OFFER FOR SALE, OR DISTRIBUTE COVERED MATERIALS  OR
 PRODUCTS  FOR USE IN NEW YORK UNLESS THE PRODUCER, OR A PRODUCER RESPON-
 SIBILITY ORGANIZATION ACTING AS THEIR DESIGNATED AGENT, HAS  A  PRODUCER
 RESPONSIBILITY  PLAN APPROVED BY THE DEPARTMENT, UPON THE RECOMMENDATION
 OF THE ADVISORY BOARD. PRODUCERS MAY SATISFY  PARTICIPATION  OBLIGATIONS
 INDIVIDUALLY  OR  JOINTLY  WITH  OTHER  PRODUCERS  OR THROUGH A PRODUCER
 RESPONSIBILITY ORGANIZATION.
   2. PRODUCERS OR A  PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL  MEET
 JOINTLY WITH THE ADVISORY BOARD AT LEAST ANNUALLY.
   3.  THE  PRODUCER,  OR A PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE
 RESPONSIBLE FOR PRODUCERS' COMPLIANCE  WITH  THE  REQUIREMENTS  OF  THIS
 TITLE,  INCLUDING  THE  PREPARATION  AND  IMPLEMENTATION  OF  A PRODUCER
 RESPONSIBILITY PLAN, THE PREPARATION AND SUBMISSION  OF  ANNUAL  AUDITS,
 AND THE ANNUAL REPORTS TO THE DEPARTMENT.
   4. WITHIN THE FIRST FOUR YEARS AFTER THE DEPARTMENT APPROVES A PRODUC-
 ER  RESPONSIBILITY  PLAN,  PRODUCERS  SHALL BE REQUIRED TO REPORT, ON AN
 ANNUAL BASIS, PROGRESS REPORTS DESCRIBING  IN  DETAIL  PROGRESS  TOWARDS
 MEETING OR EXCEEDING THE RECOVERY, RECYCLING, AND POST-CONSUMER RECYCLED
 CONTENT RATES BY MATERIAL TYPE. SUCH PROGRESS REPORTS SHALL ALSO INCLUDE
 AN  EVALUATION OF WHETHER THEY ARE ON TARGET TO MEET THE APPROVED RECOV-
 ERY, RECYCLING, AND POST-CONSUMER RECYCLED  CONTENT  RATES  BY  MATERIAL
 TYPE.  IF  A  PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION IS NOT ON
 TARGET TO MEET  THE  MINIMUM  POST-CONSUMER  RECYCLED  MATERIAL  CONTENT
 RATES, MINIMUM RECOVERY OR RECYCLING RATES, OR OTHER REQUIRED COMPONENTS
 OF  THE  PLAN,  THE DEPARTMENT, IN CONSULTATION WITH THE ADVISORY BOARD,
 SHALL REQUIRE AN APPROVED PRODUCER RESPONSIBILITY PLAN TO BE REVISED  OR
 REQUIRE  THE  PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION TO IMPLE-
 MENT ADDITIONAL MEASURES.

 S. 1185--C                          6
 
   5. WITHIN FIVE  YEARS  AFTER  THE  DEPARTMENT  APPROVES  THE  PRODUCER
 RESPONSIBILITY  PLAN,  PRODUCERS  SHALL  BE REQUIRED TO MEET THE MINIMUM
 RECOVERY, RECYCLING AND POST-CONSUMER RECYCLED MATERIAL CONTENT RATE FOR
 A COVERED MATERIAL OR PRODUCT AS  APPROVED  BY  THE  DEPARTMENT  IN  THE
 PRODUCER RESPONSIBILITY PLAN.
   6.  IF THE DEPARTMENT HAS REQUIRED A PRODUCER OR PRODUCER RESPONSIBIL-
 ITY ORGANIZATION TO REVISE THEIR PLAN OR MEET ADDITIONAL MEASURES DUE TO
 FAILURE TO MEET REQUIRED RATES ESTABLISHED UNDER THE PLAN,  THE  DEPART-
 MENT MAY, AFTER A REASONABLE PERIOD OF TIME TO TAKE CORRECTIVE ACTION TO
 CURE THE DEFAULTS OR DEFICIENCIES, IMPOSE PENALTIES.
   7.  A  PRODUCER SHALL BE EXEMPT FROM THE REQUIREMENTS OF THIS TITLE IF
 THE PRODUCER:
   (A) GENERATES LESS THAN ONE MILLION DOLLARS IN ANNUAL REVENUES;
   (B) GENERATES LESS THAN ONE  TON  OF  COVERED  MATERIALS  OR  PRODUCTS
 SUPPLIED TO NEW YORK STATE RESIDENTS PER YEAR; OR
   (C)  OPERATES  AS A SINGLE POINT OF RETAIL SALE AND IS NOT SUPPLIED OR
 OPERATED AS PART OF A FRANCHISE.
   8. RETAILERS THAT ARE NOT PRODUCERS ARE EXEMPT FROM  THE  REQUIREMENTS
 OF THIS TITLE.
   9.  PRODUCERS MAY COMPLY INDIVIDUALLY OR MAY FORM A PRODUCER RESPONSI-
 BILITY ORGANIZATION AND DISCHARGE THEIR RESPONSIBILITIES TO SUCH  ORGAN-
 IZATION.
   10.  THE  DEPARTMENT  SHALL  ESTABLISH  REGULATIONS TO ALLOW VOLUNTARY
 AGREEMENTS TO BE MADE BETWEEN RESPONSIBLE PARTIES TO PERMIT A  RESPONSI-
 BLE  PARTY TO CONVEY A DIFFERENT ORDER OF RESPONSIBILITY THAN DEFINED IN
 SUBDIVISION 4 OF SECTION 27-3301 OF THIS TITLE AS LONG AS  BOTH  PARTIES
 AGREE TO THE CHANGE IN THE HIERARCHY OF RESPONSIBILITY.
 § 27-3307. FUNDING MECHANISM.
   1.  A PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION ACTING AS THEIR
 AGENT  SHALL  ESTABLISH  PROGRAM  PARTICIPATION  CHARGES  FOR  PRODUCERS
 THROUGH  THE PRODUCER RESPONSIBILITY PLAN PURSUANT TO SECTION 27-3309 OF
 THIS TITLE WHICH SHALL BE SUFFICIENT TO ENSURE THE  OBLIGATIONS  OF  THE
 STATEWIDE NEEDS ASSESSMENT AND THE PRODUCER RESPONSIBILITY PLAN ARE MET.
   2.  A  PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL STRUCTURE PROGRAM
 CHARGES TO PROVIDE PRODUCERS WITH FINANCIAL INCENTIVES, TO REWARD  WASTE
 AND  SOURCE  REDUCTION AND RECYCLING COMPATIBILITY INNOVATIONS AND PRAC-
 TICES, AND TO DISINCENTIVIZE DESIGNS OR PRACTICES THAT INCREASE COSTS OF
 MANAGING THE PRODUCTS OR WHICH CONTAIN TOXIC  SUBSTANCES.  THE  PRODUCER
 RESPONSIBILITY ORGANIZATION MAY ADJUST CHARGES TO BE PAID BY PARTICIPAT-
 ING  PRODUCERS  BASED ON FACTORS THAT AFFECT SYSTEM COSTS. AT A MINIMUM,
 CHARGES SHALL BE VARIABLE BASED ON:
   (A) COSTS TO PROVIDE CURBSIDE COLLECTION OR OTHER FORM OF  RESIDENTIAL
 SERVICE  THAT IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR AS
 CONVENIENT AS THE PREVIOUS RECYCLING COLLECTION PLAN IN  THE  PARTICULAR
 JURISDICTION  OR AS CONVENIENT AS THE PREVIOUS REFUSE COLLECTION PLAN IN
 THE PARTICULAR JURISDICTION SHOULD RECYCLING COLLECTION NOT BE PROVIDED;
   (B) COSTS TO PROCESS A PRODUCER'S COVERED MATERIALS  OR  PRODUCTS  FOR
 ACCEPTANCE BY SECONDARY MATERIAL MARKETS;
   (C)  WHETHER THE COVERED MATERIAL OR PRODUCT WOULD TYPICALLY BE READI-
 LY-RECYCLABLE EXCEPT THAT AS A CONSEQUENCE OF THE PRODUCT'S DESIGN,  THE
 PRODUCT  HAS THE EFFECT OF DISRUPTING RECYCLING PROCESSES OR THE PRODUCT
 INCLUDES LABELS, INKS, AND ADHESIVES CONTAINING HEAVY  METALS  OR  OTHER
 TOXIC SUBSTANCES THAT WOULD CONTAMINATE THE RECYCLING PROCESS;
   (D)  WHETHER THE COVERED MATERIALS OR PRODUCT IS SPECIFICALLY DESIGNED
 TO BE REUSABLE OR REFILLABLE AND HAS HIGH REUSE OR REFILL RATE;
   (E) THE COMMODITY VALUE OF A COVERED MATERIAL OR PRODUCT.

 S. 1185--C                          7
 
   3. THE CHARGES SHALL BE ADJUSTED, OR THE PRODUCERS MAY BE  PROVIDED  A
 CREDIT,  BASED  UPON  THE  PERCENTAGE OF POST-CONSUMER RECYCLED MATERIAL
 CONTENT AND SUCH PERCENTAGE OF POST-CONSUMER RECYCLED CONTENT  SHALL  BE
 VERIFIED BY THE PRODUCER RESPONSIBILITY ORGANIZATION OR THROUGH AN INDE-
 PENDENT  THIRD PARTY APPROVED TO PERFORM VERIFICATION SERVICES TO ENSURE
 THAT SUCH PERCENTAGE EXCEEDS THE MINIMUM  REQUIREMENTS  IN  THE  COVERED
 MATERIAL, AS LONG AS THE RECYCLED CONTENT DOES NOT DISRUPT THE POTENTIAL
 FOR FUTURE RECYCLING.
   4. IN ADDITION TO THE ANNUAL SCHEDULE OF FEES APPROVED IN THE PRODUCER
 RESPONSIBILITY PLAN, THE PRODUCER RESPONSIBILITY ORGANIZATION FEE SCHED-
 ULE  MAY  INCLUDE A SPECIAL ASSESSMENT ON SPECIFIC CATEGORIES OF COVERED
 MATERIALS OR PRODUCTS AT THE REQUEST OF RESPONSIBLE ENTITIES  REPRESENT-
 ING  AND  APPROVED  BY  THE  ADVISORY BOARD IF THE NATURE OF THE COVERED
 MATERIAL OR PRODUCT IMPOSES UNUSUAL COSTS IN COLLECTION OR PROCESSING OR
 REQUIRES SPECIAL ACTIONS TO ADDRESS EFFECTIVE  ACCESS  TO  RECYCLING  OR
 SUCCESSFUL  PROCESSING  IN  MUNICIPAL  RECYCLING FACILITIES. THE REVENUE
 FROM THE SPECIAL ASSESSMENT SHALL BE USED TO  MAKE  SYSTEM  IMPROVEMENTS
 FOR  THE  SPECIFIC  COVERED  MATERIALS  OR PRODUCTS ON WHICH THE SPECIAL
 ASSESSMENT WAS APPLIED.
   5. A PRODUCER RESPONSIBILITY ORGANIZATION  SHALL  BE  RESPONSIBLE  FOR
 CALCULATING  AND  DISPERSING  FUNDING  AT A REASONABLE RECYCLING PROGRAM
 FUNDING RATE THROUGH AN OBJECTIVE FORMULA APPROVED  BY  THE  DEPARTMENT,
 AND  SUCH  REASONABLE  RATE  MAY  BE  VARIED BASED ON POPULATION DENSITY
 RATES, FOR MUNICIPAL SERVICES  UTILIZED  BY  A  PRODUCER  RESPONSIBILITY
 ORGANIZATION IF THE MUNICIPALITY ELECTS TO BE COMPENSATED BY THE PRODUC-
 ER  RESPONSIBILITY ORGANIZATION IN THE RECOVERY, RECYCLING, AND PROCESS-
 ING OF  COVERED  MATERIALS  AND  PRODUCTS,  WHETHER  SUCH  SERVICES  ARE
 PROVIDED  DIRECTLY  BY  THE MUNICIPALITY OR THROUGH A CONTRACTED SERVICE
 PROVIDER.  IF A MUNICIPALITY DOES NOT ELECT TO PROVIDE SERVICE, AND  HAS
 GIVEN  NOTICE TO THE DEPARTMENT OF ITS INTENT, THE PRODUCER RESPONSIBIL-
 ITY ORGANIZATION SHALL BE RESPONSIBLE FOR  CONTRACTING  WITH  A  PRIVATE
 ENTITY  FOR  SERVICES  AND  SHALL  BE  RESPONSIBLE  FOR  CALCULATING AND
 DISBURSING  FUNDING  AT  A  REASONABLE  RECYCLING   PROGRAM   RATE   FOR
 COLLECTION, RECYCLING, RECOVERY, AND PROCESSING SERVICES PROVIDED BY THE
 PRIVATE  SECTOR ENTITY CONTRACTED TO PROVIDE SUCH SERVICES.  THE PROGRAM
 FUNDING MECHANISM SHALL BE BASED ON THE  COST  OF  RESIDENTIAL  CURBSIDE
 COLLECTION, INCLUDING THE COST OF CURBSIDE CONTAINERS WHERE RELEVANT, AS
 WELL  AS  PROCESSING  COST FOR EACH READILY-RECYCLABLE MATERIAL, COST OF
 HANDLING NON-READILY RECYCLABLE MATERIAL TYPES COLLECTED AS  PART  OF  A
 RECYCLING  OPERATION, TRANSPORTATION COST OF RECYCLING FOR EACH MATERIAL
 TYPE, AND ANY OTHER COST FACTORS AS DETERMINED  BY  THE  DEPARTMENT.  TO
 FACILITATE  THE  PRODUCER RESPONSIBILITY ORGANIZATION'S DETERMINATION OF
 THE REASONABLE  COST  OF  RECYCLING,  PARTICIPATING  MUNICIPALITIES  AND
 PRIVATE  SECTOR  HAULERS CONTRACTING WITH PRODUCER RESPONSIBILITY ORGAN-
 IZATIONS SHALL REPORT DATA RELATED TO THEIR COSTS AND THE VALUE OF MATE-
 RIALS TO THE PRODUCER RESPONSIBILITY ORGANIZATION.    COST  CALCULATIONS
 SHALL  TAKE  INTO  CONSIDERATION  THE  AMOUNT  RECEIVED FROM THE SALE OF
 SOURCE SEPARATED MATERIALS.
   6. ANY FUNDS DIRECTLY COLLECTED PURSUANT TO THIS TITLE  SHALL  NOT  BE
 USED  TO CARRY OUT LOBBYING ACTIVITIES ON BEHALF OF THE PRODUCER RESPON-
 SIBILITY ORGANIZATION.
   7. NO RETAILER MAY CHARGE A POINT-OF-SALE OR OTHER FEE TO CONSUMERS TO
 FACILITATE A PRODUCER TO RECOUP THE COSTS ASSOCIATED  WITH  MEETING  THE
 OBLIGATIONS UNDER THIS TITLE.
   8.  NOTHING  IN THIS TITLE SHALL REQUIRE A MUNICIPALITY TO PARTICIPATE
 IN A PRODUCER RESPONSIBILITY PROGRAM.

 S. 1185--C                          8
 
   9. THE DEPARTMENT SHALL MAKE SUCH RULES AND REGULATIONS WHICH  MAY  BE
 NECESSARY  FOR  A  PRODUCER  RESPONSIBILITY  ORGANIZATION TO DEVELOP AND
 MANAGE A FUNDING MECHANISM.
 § 27-3309. PRODUCER RESPONSIBILITY PLAN AND NEEDS ASSESSMENT.
   1.  A  STATEWIDE  NEEDS  ASSESSMENT  SHALL  BE  CONDUCTED PRIOR TO THE
 APPROVAL OF A PRODUCER RESPONSIBILITY PLAN. THE  STATEWIDE NEEDS ASSESS-
 MENT SHALL BE FUNDED BY THE PRODUCERS OR PRODUCER RESPONSIBILITY  ORGAN-
 IZATION,  AND  SHALL BE CONDUCTED BY AN INDEPENDENT THIRD PARTY APPROVED
 BY THE DEPARTMENT AND SHALL  INCLUDE  AN  EVALUATION  OF  THE  CAPACITY,
 COSTS, GAPS, AND NEEDS FOR THE FOLLOWING FACTORS:
   (A)  CURRENT  FUNDING  NEEDS,  BOTH OPERATIONAL AND CAPITAL, IMPACTING
 RECYCLING ACCESS AND AVAILABILITY;
   (B) EXISTING STATE STATUTORY PROVISIONS AND FUNDING SOURCES FOR  RECY-
 CLING, REUSE, REDUCTION, AND RECOVERY;
   (C)  THE COLLECTION AND HAULING SYSTEM FOR RECYCLABLE MATERIALS IN THE
 STATE;
   (D) THE PROCESSING CAPACITY AND INFRASTRUCTURE FOR RECYCLABLE  MATERI-
 ALS  IN  THE  STATE  AND  REGIONALLY  AND  IDENTIFYING NECESSARY CAPITAL
 INVESTMENTS TO EXISTING AND FUTURE REUSE AND RECYCLING INFRASTRUCTURE;
   (E) THE MARKET CONDITIONS AND OPPORTUNITIES FOR  RECYCLABLE  MATERIALS
 IN THE STATE AND REGIONALLY;
   (F)  CONSUMER  EDUCATION  NEEDS FOR RECYCLING, REUSE, AND REDUCTION OF
 COVERED MATERIALS AND PRODUCTS.
   2. PRODUCERS, OR A  PRODUCER  RESPONSIBILITY  ORGANIZATION  ACTING  AS
 THEIR DESIGNATED AGENT, SHALL DEVELOP AND SUBMIT A PRODUCER RESPONSIBIL-
 ITY  PLAN  TO  THE  ADVISORY BOARD. SUCH PLAN SHALL COVER FIVE YEARS AND
 SHALL BE REVIEWED BY THE ADVISORY BOARD AND  UPDATED  EVERY  FIVE  YEARS
 FOLLOWING  THE  APPROVAL OF THE ORIGINAL PLAN. THE DEPARTMENT SHALL HAVE
 THE DISCRETION TO REQUIRE THE PLAN TO BE REVIEWED OR  REVISED  PRIOR  TO
 THE  FIVE  YEAR  PERIOD  PURSUANT TO SECTION 27-3305 OF THIS TITLE.  THE
 ADVISORY BOARD SHALL ALSO HAVE THE DISCRETION TO RECOMMEND  REVISION  OF
 THE PLAN TO THE DEPARTMENT. THE SUBMITTED PLAN SHALL INCLUDE, BUT NOT BE
 LIMITED TO:
   (A)  CONTACT  INFORMATION  OF THE PRODUCER RESPONSIBILITY ORGANIZATION
 AND THE PRODUCER OR PRODUCERS COVERED UNDER THE PLAN;
   (B) A DESCRIPTION OF HOW COMMENTS OF STAKEHOLDERS WERE CONSIDERED AND,
 IF APPLICABLE, ADDRESSED IN THE DEVELOPMENT OF THE PLAN;
   (C) A COMPREHENSIVE LIST OF THE  COVERED  MATERIALS  OR  PRODUCTS  FOR
 WHICH  THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION IS RESPONSI-
 BLE FOR, WHICH SHALL BE INCLUDED IN THE MINIMUM RECYCLABLE LISTS  PURSU-
 ANT TO SECTION 27-3313 OF THIS TITLE;
   (D)  A  FUNDING MECHANISM THAT ALLOCATES THE COSTS TO THE PRODUCERS TO
 MEET THE REQUIREMENTS OF THIS TITLE AND IS SUFFICIENT TO COVER THE  COST
 OF  REGISTERING,  OPERATING  AND  UPDATING  THE  PLAN, AND MAINTAINING A
 FINANCIAL RESERVE SUFFICIENT  TO  OPERATE  THE  PROGRAM  IN  A  FISCALLY
 PRUDENT AND RESPONSIBLE MANNER;
   (E)  AN  OBJECTIVE  FORMULA  ESTABLISHING  A REIMBURSEMENT RATE, WHICH
 COVERS OBLIGATIONS IDENTIFIED IN THE NEEDS  ASSESSMENT  AND  TAKES  INTO
 ACCOUNT  VARIABLE  REGIONAL  COSTS,  FOR PARTICIPATING MUNICIPALITIES OR
 PRIVATE SECTOR HAULERS;
   (F) A DESCRIPTION OF THE PROCESS FOR PARTICIPATING  MUNICIPALITIES  OR
 PRIVATE  SECTOR HAULERS TO RECOUP REASONABLE COSTS AS ESTABLISHED BY THE
 OBJECTIVE FORMULA, FROM THE PRODUCER OR PRODUCER  RESPONSIBILITY  ORGAN-
 IZATION,   INCLUDING,   AS   APPLICABLE,  ANY  ADMINISTRATIVE,  SORTING,
 COLLECTION, TRANSPORTATION, PUBLIC EDUCATION, OR  PROCESSING  COSTS,  IF

 S. 1185--C                          9
 
 THE  PRODUCER RESPONSIBILITY ORGANIZATION USES EXISTING SERVICES THROUGH
 A MUNICIPALITY OR OBTAINS SUCH SERVICES FROM A PRIVATE SECTOR HAULER;
   (G) A DETAILED DESCRIPTION OF HOW THE PRODUCER OR THE PRODUCER RESPON-
 SIBILITY ORGANIZATION, CONSULTED WITH THE ADVISORY BOARD IN THE DEVELOP-
 MENT  OF THE PLAN PRIOR TO ITS SUBMISSION TO THE DEPARTMENT, AND TO WHAT
 EXTENT THE PRODUCERS OR THE PRODUCER RESPONSIBILITY ORGANIZATION SPECIF-
 ICALLY INCORPORATED THE ADVISORY BOARD'S INPUT INTO THE PLAN.  PRODUCERS
 OR THE PRODUCER RESPONSIBILITY ORGANIZATION SHALL ALSO PROVIDE THE ADVI-
 SORY BOARD A REASONABLE PERIOD OF TIME TO REVIEW AND  COMMENT  UPON  THE
 DRAFT  PLAN  PRIOR TO ITS SUBMISSION TO THE DEPARTMENT. PRODUCERS OR THE
 PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL  MAKE  AN  ASSESSMENT   OF
 COMMENTS  RECEIVED  AND  SHALL  PROVIDE A SUMMARY AND AN ANALYSIS OF THE
 ISSUES RAISED BY THE ADVISORY BOARD AND SIGNIFICANT CHANGES SUGGESTED BY
 ANY SUCH COMMENTS, A STATEMENT OF THE REASONS WHY ANY SIGNIFICANT CHANG-
 ES WERE NOT INCORPORATED INTO THE PLAN, AND A DESCRIPTION OF ANY CHANGES
 MADE TO THE PLAN AS A RESULT OF SUCH COMMENTS;
   (H) A PROPOSED MINIMUM POST-CONSUMER RECYCLED  MATERIAL  CONTENT  RATE
 REQUIREMENT,  MINIMUM  RECOVERY,  AND MINIMUM RECYCLING RATE FOR COVERED
 MATERIALS AND PRODUCTS. THE MINIMUM  RATES  SHALL  BE  VARIED  FOR  EACH
 COVERED  MATERIAL  AND  SHALL  INCLUDE PAPER PRODUCTS, GLASS, METAL, AND
 PLASTIC;
   (I) A DESCRIPTION OF A PUBLIC EDUCATION PROGRAM  PURSUANT  TO  SECTION
 27-3313 OF THIS TITLE;
   (J)  HOW  THE  PRODUCERS, OR THE PRODUCER RESPONSIBILITY ORGANIZATION,
 WILL WORK WITH EXISTING WASTE  HAULERS,  MATERIAL  RECOVERY  FACILITIES,
 RECYCLERS,  AND  MUNICIPALITIES  TO OPERATE OR EXPAND CURRENT COLLECTION
 PROGRAMS TO ADDRESS MATERIAL COLLECTION METHODS;
   (K) A DESCRIPTION OF HOW  PRODUCERS  OR  THE  PRODUCER  RESPONSIBILITY
 ORGANIZATION  WILL USE OPEN, COMPETITIVE, AND FAIR PROCUREMENT PRACTICES
 SHOULD THEY DIRECTLY ENTER  INTO  CONTRACTUAL  AGREEMENTS  WITH  SERVICE
 PROVIDERS, INCLUDING MUNICIPALITIES AND PRIVATE ENTITIES;
   (L)  A DESCRIPTION OF HOW A MUNICIPALITY WILL PARTICIPATE, ON A VOLUN-
 TARY BASIS, WITH COLLECTION AND HOW EXISTING MUNICIPAL  RECYCLING  PROC-
 ESSING AND COLLECTION INFRASTRUCTURE WILL BE USED;
   (M)  A  DESCRIPTION  OF  HOW  THE PRODUCER, OR PRODUCER RESPONSIBILITY
 ORGANIZATION, PLANS TO MEET THE CONVENIENCE REQUIREMENTS  SET  FORTH  IN
 THIS TITLE;
   (N)  A  DESCRIPTION  OF  HOW  THE PRODUCER, OR PRODUCER RESPONSIBILITY
 ORGANIZATION, WILL MEET OR EXCEED THE MINIMUM RATES REQUIRED UNDER  THIS
 TITLE FOR COVERED MATERIALS OR PRODUCT;
   (O) A DESCRIPTION OF THE PROCESS FOR END-OF-LIFE MANAGEMENT, INCLUDING
 RECYCLING AND DISPOSAL OF RESIDUALS COLLECTED FOR RECYCLING, USING ENVI-
 RONMENTALLY SOUND MANAGEMENT PRACTICES;
   (P)  A  DESCRIPTION  OF  HOW  THE PRODUCER RESPONSIBILITY ORGANIZATION
 SHALL PROVIDE THE OPTION TO PURCHASE RECYCLED MATERIALS FROM  PROCESSORS
 ON BEHALF OF PRODUCER MEMBERS INTERESTED IN OBTAINING RECYCLED FEEDSTOCK
 IN ORDER TO ACHIEVE POST-CONSUMER RECYCLED CONTENT OBJECTIVES;
   (Q)  A  DESCRIPTION OF HOW A PRODUCER RESPONSIBILITY ORGANIZATION WILL
 WORK WITH PRODUCERS TO REDUCE PACKAGING THROUGH PRODUCT DESIGN,  SYSTEMS
 FOR REUSABLE PACKAGING, AND PROGRAM INNOVATIONS;
   (R)  A  DESCRIPTION OF HOW A PRODUCER RESPONSIBILITY ORGANIZATION WILL
 STRATEGICALLY INVEST IN EXISTING AND FUTURE REUSE AND RECYCLING  INFRAS-
 TRUCTURE AND MARKET DEVELOPMENT IN THE STATE, INCLUDING, BUT NOT LIMITED
 TO,  INSTALLING  OR  UPGRADING  EQUIPMENT  TO IMPROVE SORTING OF COVERED
 MATERIALS AND PRODUCTS OR MITIGATING THE IMPACTS  OF  COVERED  MATERIALS
 AND  PRODUCTS  TO  OTHER  COMMODITIES AT EXISTING SORTING AND PROCESSING

 S. 1185--C                         10
 
 FACILITIES, AND CAPITAL EXPENDITURES FOR NEW TECHNOLOGY, EQUIPMENT,  AND
 FACILITIES;
   (S)  A  PROCESS  TO  ADDRESS CONCERNS AND QUESTIONS FROM CUSTOMERS AND
 RESIDENTS; AND
   (T) ANY OTHER INFORMATION AS SPECIFIED BY THE DEPARTMENT THROUGH REGU-
 LATIONS.
   3. THE DEPARTMENT SHALL PROMULGATE  A  REGISTRATION  FEE  SCHEDULE  TO
 COVER  ADMINISTRATIVE  COSTS, INCLUDING A SCHEDULE FOR RE-EVALUATING THE
 FEE STRUCTURE ON AN ANNUAL BASIS AND SHALL CONSIDER IF  FEES  SHOULD  BE
 ADJUSTED.   SUCH FEES COLLECTED BY THE DEPARTMENT SHALL ONLY BE USED FOR
 THE IMPLEMENTATION, OPERATION, AND ENFORCEMENT OF THIS TITLE,  INCLUDING
 APPROVED COSTS ASSOCIATED WITH THE ADVISORY BOARD.
 § 27-3311. PRODUCER RESPONSIBILITY PLAN APPROVAL.
   1.  BEFORE REJECTION OR APPROVAL OF A PRODUCER RESPONSIBILITY PLAN CAN
 BE MADE IN ACCORDANCE WITH THIS TITLE, THE PRODUCER OR PRODUCER  RESPON-
 SIBILITY ORGANIZATION SHALL SUBMIT THE PLAN TO THE PRODUCER RESPONSIBIL-
 ITY ADVISORY BOARD.
   2.  WITHIN SIXTY DAYS OF THE ADVISORY BOARD 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 ADVISORY BOARD IN RECOMMENDING, AND THE
 DEPARTMENT  IN APPROVING A PLAN, SHALL CONSIDER THE FOLLOWING IN WHETHER
 TO APPROVE A PLAN:
   (A) THE PLAN ADEQUATELY ADDRESSES ALL ELEMENTS  DESCRIBED  IN  SECTION
 27-3309  OF  THIS  TITLE  WITH SUFFICIENT DETAIL TO DEMONSTRATE THAT THE
 OBJECTIVE OF THE PLAN WILL BE MET;
   (B) THE PRODUCER HAS UNDERTAKEN  SATISFACTORY  CONSULTATION  WITH  THE
 ADVISORY  BOARD,  HAS  PROVIDED  AN OPPORTUNITY FOR THE ADVISORY BOARD'S
 INPUT  IN  THE  IMPLEMENTATION  AND  OPERATION  OF  THE  PLAN  PRIOR  TO
 SUBMISSION  OF  THE  PLAN, AND HAS THOROUGHLY DESCRIBED HOW THE ADVISORY
 BOARD'S INPUT WILL BE ADDRESSED   BY  AND  INCORPORATED  INTO  THE  PLAN
 PURSUANT  TO  PARAGRAPH  (G) OF SUBDIVISION 2 OF SECTION 27-3309 OF THIS
 TITLE;
   (C) THE PLAN ADEQUATELY PROVIDES FOR: (I) THE PRODUCER COLLECTING  AND
 FUNDING  THE  COSTS OF COLLECTING AND PROCESSING PRODUCTS COVERED BY THE
 PLAN OR REIMBURSING A MUNICIPALITY; (II) THE FUNDING MECHANISM TO  COVER
 THE  COST  OF  THE PROGRAM; (III) CONVENIENT AND FREE CONSUMER ACCESS TO
 COLLECTION FACILITIES OR COLLECTION SERVICES; (IV)  A  FORMULAIC  SYSTEM
 FOR  EQUITABLE DISTRIBUTION OF FUNDS; (V) COMPREHENSIVE PUBLIC EDUCATION
 AND OUTREACH; AND (VI) AN EVALUATION SYSTEM FOR THE FEE STRUCTURE, WHICH
 SHALL BE EVALUATED ON AN ANNUAL BASIS  BY  THE  PRODUCER  RESPONSIBILITY
 ORGANIZATION AND RE-SUBMITTED TO THE DEPARTMENT ANNUALLY;
   (D) THE PLAN TAKES INTO CONSIDERATION A POST-CONSUMER CONTENT RATE AND
 RECOVERY  AND  RECYCLING  RATES  THAT WILL CREATE OR ENHANCE MARKETS FOR
 RECYCLED MATERIALS, THERE IS A PLAN TO ADJUST THE MINIMUM  RATES  ON  AN
 ANNUAL  BASIS,  AND  THE PLAN INCENTIVES WASTE PREVENTION AND REDUCTION.
 SUCH POST-CONSUMER CONTENT RATES, AND SUCH  ADJUSTMENTS  TO  THE  RATES,
 SHALL  TAKE  INTO  CONSIDERATION:    (I)  CHANGES  IN MARKET CONDITIONS,
 INCLUDING SUPPLY AND DEMAND FOR POST-CONSUMER RECYCLED PLASTICS,  RECOV-
 ERY  RATES,  AND  BALE AVAILABILITY BOTH DOMESTICALLY AND GLOBALLY; (II)
 RECYCLING RATES; (III) THE AVAILABILITY OF RECYCLED  MATERIALS  SUITABLE
 TO  MEET  THE MINIMUM RECYCLED CONTENT GOALS, INCLUDING THE AVAILABILITY
 OF HIGH-QUALITY RECYCLED MATERIALS, AND FOOD-GRADE  RECYCLED  MATERIALS;
 (IV)  THE CAPACITY OF RECYCLING OR PROCESSING INFRASTRUCTURE; (V) UTILI-
 ZATION RATES OF THE MATERIAL; AND (VI) THE PROGRESS MADE BY PRODUCERS IN
 MEETING THE POST-CONSUMER RECYCLED TARGETS BY MATERIAL TYPE;

 S. 1185--C                         11
 
   (E) THE PLAN CREATES A CONVENIENT SYSTEM FOR CONSUMERS TO RECYCLE THAT
 IS, AT MINIMUM, AS CONVENIENT AS CURBSIDE COLLECTION OR AS CONVENIENT AS
 THE PREVIOUS WASTE COLLECTION SCHEMA IN THE PARTICULAR JURISDICTION;
   (F)  THE  PLAN ADEQUATELY CONSIDERS THE STATE'S SOLID WASTE MANAGEMENT
 POLICY SET FORTH IN SECTION 27-0106 OF THIS ARTICLE;
   (G) THE DEPARTMENT MAY ESTABLISH ADDITIONAL PLAN REQUIREMENTS IN ADDI-
 TION TO THOSE IDENTIFIED HEREIN TO FULFILL THE  INTENT  OF  THIS  TITLE;
 PROVIDED, HOWEVER, THAT ANY ADDITIONAL REQUIREMENTS SHALL BE ESTABLISHED
 ONE YEAR PRIOR TO A REQUIRED SUBMISSION OF A PLAN UNLESS SUCH ADDITIONAL
 REQUIREMENTS  ARE  IN RELATION TO THE POWER GRANTED TO THE DEPARTMENT IN
 SUBDIVISION 4 OF SECTION 27-3305 OF THIS TITLE.
   3. NO LATER THAN SIX MONTHS AFTER THE DATE THE PLAN IS  APPROVED,  THE
 PRODUCER,  OR  PRODUCER RESPONSIBILITY ORGANIZATION, SHALL IMPLEMENT THE
 APPROVED PLAN. THE DEPARTMENT MAY RESCIND THE APPROVAL  OF  AN  APPROVED
 PLAN AT ANY TIME WITH CAUSE AND DOCUMENTED JUSTIFICATION.
 § 27-3313. COLLECTION AND CONVENIENCE.
   A  PRODUCER  OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL PROVIDE FOR
 WIDESPREAD, CONVENIENT, AND EQUITABLE ACCESS TO COLLECTION OPPORTUNITIES
 FOR THE COVERED MATERIALS AND PRODUCTS IDENTIFIED UNDER THE PRODUCER  OR
 PRODUCER  RESPONSIBILITY  ORGANIZATION'S  PLAN  AT NO ADDITIONAL COST TO
 RESIDENTS.  SUCH OPPORTUNITIES SHALL BE PROVIDED TO ALL RESIDENTS OF NEW
 YORK IN A MANNER THAT IS AS CONVENIENT AS THE  COLLECTION  OF  MUNICIPAL
 SOLID   WASTE.  A  PRODUCER  RESPONSIBILITY  ORGANIZATION  SHALL  ENSURE
 SERVICES CONTINUE FOR CURBSIDE RECYCLING PROGRAMS  THAT  A  MUNICIPALITY
 SERVES  AS  OF  THE  EFFECTIVE  DATE OF THIS ARTICLE, EITHER DIRECTLY OR
 THROUGH A CONTRACT TO PROVIDE  SERVICES,  AND  THAT  SUCH  SERVICES  ARE
 CONTINUED  THROUGH  THE  PLAN.  A  PRODUCER  RESPONSIBILITY PLAN MAY NOT
 RESTRICT A JURISDICTION'S RESIDENT'S ABILITY TO CONTRACT  DIRECTLY  WITH
 THIRD  PARTIES TO OBTAIN RECYCLING COLLECTION SERVICES IF RESIDENTS HAVE
 THE OPTION TO ENTER INTO SUCH CONTRACTS AS OF THE EFFECTIVE DATE OF THIS
 TITLE, AS LONG AS THE RESIDENT STILL  VOLUNTARILY  CHOOSES  TO  CONTRACT
 DIRECTLY  WITH  THE  THIRD PARTY. A PRODUCER RESPONSIBILITY ORGANIZATION
 MAY RELY ON A RANGE OF MEANS TO COLLECT VARIOUS  CATEGORIES  OF  COVERED
 MATERIALS  OR  PRODUCTS  SO  LONG  AS  COVERED  MATERIALS  AND  PRODUCTS
 COLLECTION  OPTIONS  INCLUDE  CURBSIDE  RECYCLING  COLLECTION   SERVICES
 PROVIDED  BY  MUNICIPAL  PROGRAMS,  MUNICIPAL CONTRACTED PROGRAMS, SOLID
 WASTE COLLECTION COMPANIES, OR OTHER APPROVED ENTITIES AS IDENTIFIED  BY
 THE DEPARTMENT IF:
   1.  THE  CATEGORY  OF  COVERED  MATERIALS AND PRODUCTS IS SUITABLE FOR
 RESIDENTIAL CURBSIDE RECYCLING COLLECTION AND CAN BE EFFECTIVELY  SORTED
 BY THE FACILITIES RECEIVING THE CURBSIDE COLLECTED MATERIAL;
   2.  THE  RECYCLING  FACILITY  PROVIDING PROCESSING AND SORTING SERVICE
 AGREES TO INCLUDE THE CATEGORY OF COVERED MATERIALS AND PRODUCTS  AS  AN
 ACCEPTED MATERIAL;
   3.  THE COVERED MATERIALS AND PRODUCTS CATEGORY IS NOT HANDLED THROUGH
 A DEPOSIT AND RETURN  SCHEME  OR  BUY  BACK  SYSTEM  THAT  RELIES  ON  A
 COLLECTION SYSTEM OTHER THAN CURBSIDE OR MULTI-FAMILY COLLECTION; AND
   4.  THE  PROVIDER OF THE RESIDENTIAL CURBSIDE RECYCLING SERVICE AGREES
 TO THE  PRODUCER  RESPONSIBILITY  ORGANIZATION  SERVICE  PROVIDER  COSTS
 ARRANGEMENT.
   5.  (A)  THE  PRODUCER  OR  PRODUCER RESPONSIBILITY ORGANIZATION SHALL
 ADOPT A LIST OF  MINIMUM  TYPES  OF  READILY  RECYCLABLE  MATERIALS  AND
 PRODUCTS BASED ON AVAILABLE COLLECTION AND PROCESSING INFRASTRUCTURE AND
 RECYCLING  MARKETS  FOR  COVERED MATERIALS AND PRODUCTS. THE PRODUCER OR
 PRODUCER RESPONSIBILITY ORGANIZATION SHALL UPDATE AND ADOPT THE LIST  ON
 AN ANNUAL BASIS, IN CONSULTATION WITH THE ADVISORY BOARD, IN RESPONSE TO

 S. 1185--C                         12
 
 COLLECTION  AND  PROCESSING  IMPROVEMENTS  AND  CHANGES IN RECYCLING END
 MARKETS. IF THERE ARE MULTIPLE LISTS, THE DEPARTMENT SHALL  COMPILE  THE
 LISTS  AND  SHALL  PUBLISH A COMPILED LIST TO THE PUBLIC. SUCH LISTS MAY
 VARY  BY  GEOGRAPHIC  REGION  DEPENDING ON REGIONAL MARKETS AND REGIONAL
 COLLECTION AND PROCESSING INFRASTRUCTURE.
   (B) ALL MUNICIPALITIES OR PRIVATE RECYCLING  SERVICE  PROVIDERS  SHALL
 PROVIDE FOR THE COLLECTION AND RECYCLING OF ALL IDENTIFIED MATERIALS AND
 PRODUCTS  CONTAINED  ON  THE  LIST  OF  MINIMUM  RECYCLABLES,  BASED  ON
 GEOGRAPHIC REGIONS, IN ORDER TO BE ELIGIBLE FOR REIMBURSEMENT; PROVIDED,
 HOWEVER, NOTHING SHALL PENALIZE  A  MUNICIPALITY  OR  PRIVATE  RECYCLING
 SERVICE FOR RECOVERING AND RECYCLING MATERIALS THAT ARE GENERATED IN THE
 MUNICIPALITY  OR  GEOGRAPHIC REGION THAT ARE NOT INCLUDED ON THE LIST OF
 MINIMUM TYPES OF RECYCLABLE COVERED MATERIALS OR PRODUCTS AS LONG AS  IT
 CAN  BE  DEMONSTRATED THAT SUCH MATERIALS HAVE A MARKET AS DETERMINED BY
 THE DEPARTMENT IN CONSULTATION WITH THE PRODUCER OR  PRODUCER  RESPONSI-
 BILITY  ORGANIZATION. REIMBURSEMENT SHALL COVER RECYCLING OF ALL COVERED
 MATERIALS AND PRODUCTS SO LONG AS THE  PROGRAM  INCLUDES  AT  LEAST  THE
 MINIMUM RECYCLABLE LIST.
   (C) THE DEPARTMENT MAY GRANT AN EXCEPTION OF THE REQUIREMENTS IN PARA-
 GRAPH (B) OF THIS SUBDIVISION UPON A WRITTEN SHOWING BY THE MUNICIPALITY
 OR PRIVATE RECYCLING SERVICE THAT COMPLIANCE WITH THE REQUIREMENT IS NOT
 PRACTICABLE  FOR  A  SPECIFIC  IDENTIFIED PRODUCT OR MATERIAL AND IF THE
 DEPARTMENT FINDS IT IS IN THE BEST INTEREST OF THE INTENT OF THIS  TITLE
 TO GRANT THEM AN EXTENSION; PROVIDED, HOWEVER, THAT THE EXTENSION GRANT-
 ED BY THE DEPARTMENT SHALL NOT EXCEED TWELVE MONTHS.
 § 27-3315. OUTREACH AND EDUCATION.
   1.  THE  PRODUCER,  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION,  SHALL
 PROVIDE EFFECTIVE OUTREACH, EDUCATION, AND COMMUNICATIONS  TO  CONSUMERS
 THROUGHOUT NEW YORK STATE REGARDING:
   (A) PROPER END-OF-LIFE MANAGEMENT OF COVERED PRODUCTS AND MATERIALS;
   (B) THE LOCATION AND AVAILABILITY OF CURBSIDE RECYCLING AND ADDITIONAL
 DROP-OFF COLLECTION OPPORTUNITIES;
   (C)  HOW  TO  PREVENT  LITTER OF COVERED MATERIALS AND PRODUCTS IN THE
 PROCESS OF COLLECTION; AND
   (D) RECYCLING INSTRUCTIONS THAT ARE: CONSISTENT STATEWIDE,  EXCEPT  AS
 NECESSARY TO TAKE INTO ACCOUNT DIFFERENCES AMONG LOCAL LAWS AND PROCESS-
 ING CAPABILITIES; EASY TO UNDERSTAND; AND EASILY ACCESSIBLE.
   2.  THE  OUTREACH  AND EDUCATION REQUIRED PURSUANT TO SUBDIVISION 1 OF
 THIS SECTION SHALL:
   (A) BE DESIGNED TO ACHIEVE THE MANAGEMENT GOALS  OF  COVERED  PRODUCTS
 UNDER  THIS  TITLE, INCLUDING THE PREVENTION OF CONTAMINATION OF COVERED
 PRODUCTS;
   (B) INCORPORATE, AT  A  MINIMUM,  ELECTRONIC,  PRINT,  WEB-BASED,  AND
 SOCIAL  MEDIA  ELEMENTS  THAT  MUNICIPALITIES  COULD  UTILIZE  AT  THEIR
 DISCRETION;
   (C) BE COORDINATED ACROSS PROGRAMS TO AVOID CONFUSION FOR CONSUMERS;
   (D) INCLUDE, AT A MINIMUM:  CONSULTING  ON  EDUCATION,  OUTREACH,  AND
 COMMUNICATIONS WITH LOCAL GOVERNMENTS AND OTHER STAKEHOLDERS; COORDINAT-
 ING  WITH  AND  ASSISTING LOCAL MUNICIPAL PROGRAMS, MUNICIPAL CONTRACTED
 PROGRAMS, SOLID WASTE COLLECTION COMPANIES, AND OTHER ENTITIES PROVIDING
 SERVICES; AND DEVELOPING AND PROVIDING OUTREACH  AND  EDUCATION  TO  THE
 DIVERSE ETHNIC POPULATIONS IN THE STATE; AND
   (E)  A  PLAN  TO  WORK  WITH  PARTICIPATING PRODUCERS TO LABEL OR MARK
 COVERED PRODUCTS, IN ACCORDANCE WITH REASONABLE LABELING STANDARDS, WITH
 INFORMATION TO ASSIST CONSUMERS IN RESPONSIBLY  MANAGING  AND  RECYCLING
 COVERED MATERIALS AND PRODUCTS.

 S. 1185--C                         13
 
   3.  THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL CONSULT
 WITH MUNICIPALITIES ON THE DEVELOPMENT OF EDUCATIONAL MATERIALS AND  MAY
 COORDINATE WITH MUNICIPALITIES ON OUTREACH AND COMMUNICATION.
   4.  THE  DEPARTMENT  SHALL DETERMINE THE EFFECTIVENESS OF OUTREACH AND
 EDUCATION EFFORTS UNDER THIS SECTION TO DETERMINE  WHETHER  CHANGES  ARE
 NECESSARY  TO  IMPROVE  THOSE OUTREACH AND EDUCATION EFFORTS AND DEVELOP
 INFORMATION THAT MAY BE USED TO IMPROVE OUTREACH AND  EDUCATION  EFFORTS
 UNDER THIS SECTION.
   5.  THE PRODUCER RESPONSIBILITY ORGANIZATION SHALL UNDERTAKE OUTREACH,
 EDUCATION, AND COMMUNICATIONS THAT ASSIST IN ATTAINING OR EXCEEDING  THE
 RECOVERY AND RECYCLING RATES.
 § 27-3317. REPORTING REQUIREMENTS AND AUDITS.
   1. ONE YEAR AFTER A PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION'S
 FIRST  PLAN  IS  APPROVED,  AND  ANNUALLY  THEREAFTER, EACH PRODUCER, OR
 PRODUCER RESPONSIBILITY ORGANIZATION ACTING AS THEIR  DESIGNATED  AGENT,
 SHALL SUBMIT A REPORT TO THE DEPARTMENT THAT DETAILS THE PERFORMANCE FOR
 THE PRIOR YEAR'S PROGRAM. THE REPORT SHALL BE POSTED ON THE DEPARTMENT'S
 WEBSITE  AND  ON THE WEBSITE OF THE PRODUCER, OR PRODUCER RESPONSIBILITY
 ORGANIZATION ACTING AS THEIR DESIGNATED AGENT. SUCH ANNUAL REPORT  SHALL
 INCLUDE:
   (A)  A  DETAILED DESCRIPTION OF THE METHODS USED TO COLLECT, TRANSPORT
 AND  PROCESS  COVERED  MATERIALS  AND   PRODUCTS   INCLUDING   DETAILING
 COLLECTION  METHODS MADE AVAILABLE TO CONSUMERS AND AN EVALUATION OF THE
 PROGRAM'S COLLECTION CONVENIENCE;
   (B) A DESCRIPTION OF THE STATUS OF ACHIEVING THE RECOVERY AND  RECYCL-
 ING  RATES  AS  SET  FORTH  IN  THE PLAN PURSUANT TO THIS TITLE AND WHAT
 EFFORTS ARE PROPOSED IN THE EVENT OF FAILING TO ACHIEVE SUCH RATES;
   (C) A DESCRIPTION ON THE STATUS OF ACHIEVING THE  POST-CONSUMER  RECY-
 CLED  CONTENT RATES AS SET FORTH IN THE PLAN PURSUANT TO THIS TITLE, AND
 WHAT EFFORTS ARE PROPOSED IN THE EVENT OF FAILING TO ACHIEVE SUCH RATES;
   (D) THE AMOUNT OF COVERED MATERIALS  AND  PRODUCTS  COLLECTED  IN  THE
 STATE BY MATERIAL TYPE;
   (E) THE AMOUNT AND TYPE OF COVERED MATERIALS AND PRODUCTS COLLECTED IN
 THE STATE BY THE METHOD OF DISPOSITION BY MATERIAL TYPE;
   (F)  THE  TOTAL  COST OF IMPLEMENTING THE PROGRAM, AS DETERMINED BY AN
 INDEPENDENT FINANCIAL AUDIT, AS PERFORMED BY AN INDEPENDENT AUDITOR;
   (G) INFORMATION REGARDING THE INDEPENDENTLY AUDITED  FINANCIAL  STATE-
 MENTS  DETAILING  ALL  PAYMENTS  RECEIVED  AND  ISSUED  BY THE PRODUCERS
 COVERED BY THE APPROVED PLAN;
   (H) A COPY OF THE INDEPENDENT AUDIT;
   (I) A DETAILED DESCRIPTION OF WHETHER THE PROGRAM COMPENSATES  MUNICI-
 PALITIES, SOLID WASTE COLLECTION, SORTING AND PROCESSING FACILITIES, AND
 OTHER  APPROVED  ENTITIES  FOR THEIR RECYCLING EFFORTS AND OTHER RELATED
 SERVICES PROVIDED BY THE ABOVE ENTITIES;
   (J) SAMPLES OF ALL EDUCATIONAL  MATERIALS  PROVIDED  TO  CONSUMERS  OR
 OTHER ENTITIES;
   (K)  A  DETAILED  LIST  OF EFFORTS UNDERTAKEN AND AN EVALUATION OF THE
 METHODS USED TO DISSEMINATE SUCH MATERIALS INCLUDING RECOMMENDATIONS, IF
 ANY, FOR HOW THE EDUCATIONAL COMPONENT OF THE PROGRAM CAN  BE  IMPROVED;
 AND
   (1)  A  DETAILED DESCRIPTION OF INVESTMENTS MADE IN INFRASTRUCTURE AND
 MARKET DEVELOPMENT AS RELATED TO THIS TITLE.
   2. THE DEPARTMENT SHALL NOT REQUIRE PUBLIC REPORTING OF ANY  CONFIDEN-
 TIAL  INFORMATION  THAT THE DEPARTMENT FINDS TO BE PROTECTED PROPRIETARY
 INFORMATION. FOR PURPOSES OF THIS TITLE, PROTECTED PROPRIETARY  INFORMA-
 TION  SHALL MEAN INFORMATION THAT, IF MADE PUBLIC, WOULD DIVULGE COMPET-

 S. 1185--C                         14
 
 ITIVE BUSINESS INFORMATION, METHODS OR PROCESSES ENTITLED TO  PROTECTION
 AS  TRADE  SECRETS OF SUCH PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZA-
 TION OR INFORMATION THAT WOULD REASONABLY HINDER THE PRODUCER OR PRODUC-
 ER  RESPONSIBILITY  ORGANIZATION'S  COMPETITIVE ADVANTAGE IN THE MARKET-
 PLACE.
 § 27-3319. ANTITRUST PROTECTIONS.
   A PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION THAT ORGANIZES  THE
 COLLECTION,  TRANSPORTATION,  AND  PROCESSION  OF  COVERED MATERIALS AND
 PRODUCTS, IN ACCORDANCE WITH A  PRODUCER  RESPONSIBILITY  PLAN  APPROVED
 UNDER  THIS  TITLE,  SHALL NOT BE LIABLE FOR ANY CLAIM OF A VIOLATION OF
 ANTITRUST, RESTRAINT OF TRADE, OR UNFAIR  TRADE  PRACTICE  ARISING  FROM
 CONDUCT  UNDERTAKEN  IN  ACCORDANCE  WITH  THE  PROGRAM PURSUANT TO THIS
 TITLE; PROVIDED, HOWEVER, THIS SECTION SHALL NOT APPLY TO ANY  AGREEMENT
 ESTABLISHING  OR  AFFECTING THE PRICE OF A COVERED MATERIAL, PRODUCT, OR
 THE OUTPUT OR PRODUCTION OF ANY  AGREEMENT  RESTRICTING  THE  GEOGRAPHIC
 AREA OR CUSTOMERS TO WHICH A COVERED MATERIAL OR PRODUCT WILL BE SOLD.
 § 27-3321. PENALTIES.
   1.  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ANY PERSON OR ENTITY
 THAT VIOLATES ANY PROVISION OF OR FAILS  TO  PERFORM  ANY  DUTY  IMPOSED
 PURSUANT  TO  THIS  TITLE OR ANY RULE OR REGULATION PROMULGATED PURSUANT
 THERETO, OR ANY TERM OR CONDITION OF ANY REGISTRATION OR  PERMIT  ISSUED
 PURSUANT THERETO, OR ANY FINAL DETERMINATION OR ORDER OF THE COMMISSION-
 ER  MADE PURSUANT TO THIS ARTICLE OR ARTICLE 71 OF THIS CHAPTER SHALL BE
 LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS  FOR  EACH
 VIOLATION  AND  AN  ADDITIONAL  PENALTY  OF  NOT  MORE THAN FIVE HUNDRED
 DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION CONTINUES.
   2. (A)  ANY  PRODUCER  OR  PRODUCER  RESPONSIBILITY  ORGANIZATION  WHO
 VIOLATES  ANY PROVISION OF OR FAILS TO PERFORM ANY DUTY IMPOSED PURSUANT
 TO THIS TITLE OR ANY RULE OR REGULATION  PROMULGATED  PURSUANT  THERETO,
 INCLUDING COMPLIANCE WITH REQUIREMENTS RELATED TO THE PRODUCER RESPONSI-
 BILITY  PLAN,  OR  ANY  TERM  OR CONDITION OF ANY REGISTRATION OR PERMIT
 ISSUED PURSUANT THERETO, OR ANY FINAL  DETERMINATION  OR  ORDER  OF  THE
 COMMISSIONER MADE PURSUANT TO THIS ARTICLE OR ARTICLE 71 OF THIS CHAPTER
 SHALL  BE LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS
 FOR EACH VIOLATION AND AN ADDITIONAL PENALTY OF NOT MORE THAN ONE  THOU-
 SAND  FIVE  HUNDRED  DOLLARS  FOR  EACH  DAY DURING WHICH SUCH VIOLATION
 CONTINUES. FOR A SECOND VIOLATION COMMITTED WITHIN TWELVE  MONTHS  OF  A
 PRIOR  VIOLATION,  THE  PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION
 SHALL BE LIABLE FOR A CIVIL PENALTY NOT TO EXCEED TEN  THOUSAND  DOLLARS
 AND  AN  ADDITIONAL  PENALTY OF NOT MORE THAN THREE THOUSAND DOLLARS FOR
 EACH DAY DURING WHICH SUCH VIOLATION CONTINUES. FOR A  THIRD  OR  SUBSE-
 QUENT  VIOLATION  COMMITTED WITHIN TWELVE MONTHS OF ANY PRIOR VIOLATION,
 THE PRODUCER OR PRODUCER RESPONSIBILITY ORGANIZATION SHALL BE LIABLE FOR
 A CIVIL PENALTY NOT TO EXCEED TWENTY THOUSAND DOLLARS AND AN  ADDITIONAL
 PENALTY OF SIX THOUSAND DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION
 CONTINUES.
   (B) ALL PRODUCERS PARTICIPATING IN A PRODUCER RESPONSIBILITY ORGANIZA-
 TION  SHALL  BE  JOINTLY AND SEVERALLY LIABLE FOR ANY PENALTIES ASSESSED
 AGAINST THE PRODUCER RESPONSIBILITY ORGANIZATION PURSUANT TO THIS  TITLE
 AND ARTICLE 71 OF THIS CHAPTER.
   3. CIVIL PENALTIES UNDER THIS SECTION SHALL BE ASSESSED BY THE DEPART-
 MENT  AFTER  AN  OPPORTUNITY  TO  BE HEARD PURSUANT TO THE PROVISIONS OF
 SECTION 71-1709 OF THIS CHAPTER, OR  BY  THE  COURT  IN  ANY  ACTION  OR
 PROCEEDING  PURSUANT TO SECTION 71-2727 OF THIS CHAPTER, AND IN ADDITION
 THERETO, SUCH PERSON OR ENTITY MAY BY SIMILAR PROCESS BE  ENJOINED  FROM
 CONTINUING SUCH VIOLATION AND ANY PERMIT, REGISTRATION OR OTHER APPROVAL

 S. 1185--C                         15
 
 ISSUED  BY  THE  DEPARTMENT  MAY  BE  REVOKED  OR SUSPENDED OR A PENDING
 RENEWAL DENIED.
   4.  THE  DEPARTMENT  AND THE ATTORNEY GENERAL ARE HEREBY AUTHORIZED TO
 ENFORCE THE PROVISIONS OF THIS TITLE AND ALL MONIES COLLECTED  SHALL  BE
 DEPOSITED TO THE CREDIT OF THE ENVIRONMENTAL PROTECTION FUND ESTABLISHED
 PURSUANT TO SECTION 92-S OF THE STATE FINANCE LAW.
 § 27-3323. STATE PREEMPTION.
   JURISDICTION IN ALL MATTERS PERTAINING TO COSTS AND FUNDING MECHANISMS
 OF  PRODUCER  RESPONSIBILITY  ORGANIZATIONS  RELATING TO THE RECOVERY OF
 COVERED MATERIALS SHALL, BY THIS TITLE, BE  VESTED  EXCLUSIVELY  IN  THE
 STATE;  PROVIDED,  HOWEVER,  THAT NOTHING IN THIS SECTION SHALL PRECLUDE
 ANY CITY, TOWN, VILLAGE OR OTHER LOCAL PLANNING UNITS  FROM  DETERMINING
 WHAT  MATERIALS SHALL BE INCLUDED FOR RECYCLING IN A MUNICIPAL RECYCLING
 COLLECTION PROGRAM OR SHALL PRECLUDE ANY PERSON FROM  COORDINATING,  FOR
 RECYCLING OR REUSE, THE COLLECTION OF COVERED MATERIALS AND PRODUCTS.
 § 27-3325. AUTHORITY TO PROMULGATE RULES AND REGULATIONS.
   THE  COMMISSIONER  SHALL  HAVE THE POWER TO PROMULGATE RULES AND REGU-
 LATIONS NECESSARY AND APPROPRIATE FOR THE ADMINISTRATION OF THIS TITLE.
 § 27-3327. OTHER ASSISTANCE PROGRAMS.
   NOTHING IN THIS TITLE SHALL IMPACT AN  ENTITY'S  ELIGIBILITY  FOR  ANY
 STATE  OR LOCAL INCENTIVE OR ASSISTANCE PROGRAM TO WHICH THEY ARE OTHER-
 WISE ELIGIBLE.
 § 27-3329. SEVERABILITY.
   THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE  AND  IF  ANY  PHRASE,
 CLAUSE, SENTENCE OR PROVISION OF THIS TITLE OR THE APPLICABILITY THEREOF
 TO  ANY  PERSON  OR CIRCUMSTANCE SHALL BE HELD INVALID, THE REMAINDER OF
 THIS TITLE AND THE APPLICATION THEREOF SHALL NOT BE AFFECTED THEREBY.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.