New York State Senate Bill 1185B (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.

Certain plastic products are covered, to include single use items such as straws, utensils, cups, plates, and plastic bags.

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 already qualify for deposit/redemption regulations.
4. Paint containers covered by existing EPR law.
5. Medical devices and covered materials and products regulated as a drug, medical device, or dietary supplement.
6. Packaging used to contain toxic or hazardous materials.

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 is defined as a tiered list based on priority of responsibility for covered products. The highest priority is the manufacturer of a covered material or product under a brand that sells or offers for sale the covered material or product in the state.

In the absence of a brand, the producer is the 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.

If the above two definitions do not apply, a producer is the person or company that offers for sale, sells, or distributes the covered material or product in the state.

Producers are exempt if 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 that choose to continue providing service, either directly or through providers. If a municipality does not choose to provide service, the PRO is responsible for contracting private service providers to fulfill program requirements.

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 program plan must also include a strategic capital investment plan and a mechanism to disperse funds for existing and future infrastructure.

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 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 and minimum recovery 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, taking into account changes in market conditions, recycling rates, availability of recycled materials, infrastructure capacity, and utilization rates.

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.

The date of program implementation is four 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 in the process of collection.

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 PRO shall consult with municipalities on the development of educational materials and may coordinate with municipalities on outreach and communication.

Producer responsibility plans must be submitted to an advisory board, which will determine if it meets the criteria of the legislation. Plans must include a detailed description of how the producer or PRO consulted with the advisory board in the development of the plan and to what extent the advisory board's input was incorporated.

This bill requires the establishment of a producer responsibility advisory board, to receive and review the producer responsibility plans and make recommendations regarding the plan's approval. The advisory board must be composed of an odd number of members, with at least one member from each of the following:

1. A municipality association or municipal recycling program, including an additional municipal representative from cities with a population of one million or more residents.
2. A statewide environmental organization.
3. A representative of environmental justice communities or organizations.
4. A statewide waste disposal association.
5. A materials recovery facility located within the state of New York.
6. A recycling collection provider.
7. A manufacturer of packaging materials utilizing post-consumer recycled content.
8. A manufacturer of paper materials utilizing post-consumer recycled content.
9. A consumer advocate.
10. A retailer.

This bill ties the definition of readily-recyclable to covered materials or products included in the minimum recyclables list. This list will be created by the PRO based on available collection and processing infrastructure and recycling markets for covered materials and products. This list will be updated on an annual basis in response to collection and processing improvements and changes in recycling end markets. Readily-recyclable does not include materials that contain toxic substances.

Recycling is defined as the reprocessing, by means of a manufacturing process, of a used material into a product, a component incorporated into a product, or a secondary (recycled) raw material. It 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 component materials or chemical conversion processes.

Recycling, for the purpose of this bill, does not include chemical conversion processes.

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 a retailer to recoup the costs of meeting producer obligations.

This bill requires a statewide needs assessment to be conducted prior to the approval of a producer responsibility plan. The assessment will be funded by the producers or PRO, and conducted by an independent third party. The assessment will evaluate the capacity, costs, gaps, and needs for the following factors:

1. Current funding needs impacting recycling access and availability.
2. Existing state statutory provisions and funding sources for recycling, reuse, reduction, and recovery.
3. The collection and hauling system for recyclable materials in the state.
4. The processing capacity and infrastructure for recyclable materials in the state and regionally, and necessary capital investments to existing and future reuse and recycling infrastructure.
5. The market conditions and opportunities for recyclable materials in the state and regionally.
6. Consumer education needs for recycling, reuse, and reduction of covered materials and products.

Producers who provide advertisement of the program in magazines, newspapers, or websites, may be excluded from program participation as long as the value of the advertisement is equal in value to the cost of participating in the producer responsibility program.