New York State Senate Bill 1185A (2021) - (Amended)

Covered materials and products are defined as any part of a package or container, regardless of recyclability or compostability, that includes material used for containment, protection, handling, delivery, and presentation of goods that are sold, offered for sale, or distributed in the state.

Containers and packaging are further defined to include paper, cartons, plastic, glass, metal, or combinations used secondary and tertiary packaging, and intended for short-term or single use.

Paper products are defined as products made from paper and other cellulosic fibers, including print and marketing materials.

The bill lists categories of plastic polymers that are considered covered materials under the producer responsibility program as determined by the state.

Packaging that is used for long-term protection or storage of a product (over 5 years) is excluded from coverage. Several other exclusions are listed:

1. Materials or products that could become unsafe or unsanitary to recycle due to their intended use.
2. Literary, text, and reference bound books.
3. Beverage containers that qualify for deposit/redemption under existing legislation.

The producer responsibility program must provide curbside recycling that is as convenient as the existing collection plan. The bill includes service to residential units in the definition of curbside recycling.

The bill extends curbside recycling to include schools, state or local agencies, or institutions which were served by municipality or a private sector hauler as of the effective date of the legislation.

The term producer includes a manufacturer of a covered material or product under a brand that sells or offers for sale the covered material or product in the state.

The term producer includes an individual who imports the covered material or product as the owner or licensee of a trademark or brand under which the covered material or product is sold or distributed in the state.

The term producer includes a person or company that offers for sale, sells, or distributes the covered material or product in the state.

Producers are exempt of they generate less than $1 million in annual revenue, less than one ton of covered materials per year in the state, or operates as a single point of retail (not part of a franchise).

Municipalities or local governments are not included under the definition of producer.

Registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations are excluded.

Retailers that are not producers are excluded from program requirements.

Producers may form a Producer Responsibility Organization (PRO), and that organization will assume program responsibilities defined in this bill.

Producers may comply individually.

PRO(s) must be nonprofit organizations.

The producers or PRO are responsible for all financial costs of the program. The PRO will reimburse municipalities, either directly or through providers.

The program must cover collection and processing of covered materials and products.

The individual producer, or PRO, is required to provide effective outreach, education, and communications to consumers in the state.

The program must cover administrative costs associated with registering, operating, and updating the program.

The bill requires producer investments into the development of markets for recycled material from covered products.

The producer responsibility plan must describe how the PRO will invest in reuse and recycling infrastructure, including improved sorting equipment and reduced contamination, and capital expenditures for new technology, equipment, and facilities.

The fee structure will be developed in the program plan. Within this structure, fees may vary based on costs associated with collection and processing, as well design features such as ease of recyclability or reusability, and the percentage of post-consumer recycled content used (eco-modulation).

Fees detailed in the producer responsibility plan will be adjusted based on percentage of post-consumer recycled material content.

The bill suggests criteria for eco-modulation, but the structure will be determined in the development of the producer responsibility plan. The bill states that fees can encourage non-food contact packaging specifically designed to be reusable or refillable and have high reuse or refill rates.

Fees detailed in the producer responsibility plan should disincentivize covered materials that would typically be readily-recyclable but are made less recyclable by design features (labels, inks, adhesives containing heavy metals, other hazardous contaminants).

The producer responsibility plan must include a proposed minimum recycling rate for covered materials.

The producer responsibility plan must include a proposed minimum PCR content rate requirement.

The plan must include specific content and recycling rates for covered materials, including paper products, glass, metal, and plastics.

The producer responsibility plan must include a plan to adjust the minimum post-consumer content rate and recovery and recycling rate targets on an annual basis.

A producer or PRO must provide for widespread, convenient, and equitable access to collection opportunities. The producer responsibility program must cover the costs of curbside collection or other level of service that is, at minimum, as convenient as curbside collection or as convenient as the previous recycling collection service in the particular jurisdiction. If recycling was not previously provided, the service must be as convenient as the previous refuse collection service.

The producer responsibility plan must describe how the PRO will invest in reuse and recycling infrastructure and market development in the state, including improved sorting equipment and reduced contamination, and capital expenditures for new technology, equipment, and facilities.

Producers will have one year from the effective date of this legislation to submit a plan. The plan will cover a five-year period, and be reviewed and updated every five years.

The date of program implementation is three years from the effective date of this legislation.

The state has the authority to review and approve plans submitted by producers or PROs. The state may also require a plan to be reviewed or revised prior to the five year period if factors such as minimum post-consumer recycled material content rates, minimum recycling rates are not being met, or if there has been a change in circumstances that warrants revision of the plan.

Producers or PRO will submit an annual report to the state which will be posted on the state website. The government will enforce civil penalties for producers who violate the regulation.

Each producer or PRO must submit a report annually. The report must cover operational methods, convenience assessment, status in achieving targets, program costs, weight and type of materials collected, audit results, educational efforts, and infrastructure and market developments.

Civil penalties apply to producers who do not comply with the regulation.

The PRO must consult stakeholders in the development of education and outreach materials, and must develop and provide outreach and education to the diverse ethnic populations in the state.

The PRO must have a plan to work with producers to label covered products with information to assist consumers in responsibly managing and recycling covered materials.

Education, outreach, and communication must cover proper end-of-life management of covered materials and products. The recycling and composting instructions must be consistent statewide (unless exceptions exist), easy to understand, and easily accessible.

Education, outreach, and communication must cover how to prevent litter of covered materials.

Consumers must be made aware of the location and availability of curbside and drop-off collection opportunities.

Outreach and education materials must incorporate, at a minimum, electronic, print, web-based, and social media elements that municipalities could utilize at their discretion.

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.

The producer responsibility plan must include a description of how comments of stakeholders were considered and addressed in the development of the plan. The PRO must consult stakeholders, including municipalities, private sector haulers, material recovery facilities, and processors.

"Readily-recyclable" means packaging that can be sorted by entities processing recyclables from New York and for which there was a consistent market during the previous 2 years, and recyclers were willing to accept sorted material. Readily-recyclable does not include material types that recyclers accept in low quantities or sort out of material during additional processing steps. If recyclers do not want a full bale of a specific material type, that material type is not considered readily recyclable. Readily-recyclable 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.

"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.

This bill extends antitrust protections to members of a PRO for actions taken in accordance with this regulation.

A point-of-sale fee may not be charged to consumers by producers to recoup the costs of meeting producer obligations.