Relates to the number of reverse vending machines required for mandatory acceptance of empty beverage containers

Summary of specific provisions

Section 1 of the bill would amend Environmental Conservation Law (ECL) § 27-1007(1) (b) to adjust the number of RVMs that are required based on the square footage of a business that sells beverages subject to the New York State Returnable Container Act. Businesses with at least 40,000 but less than 60,000 square feet would be required to install two instead of three RVMs. Businesses with at least 60,000 but less than 85,000 square feet would be required to install three instead of four RVMs. Businesses with at least 85,000 square feet would be required to install four instead of eight RVMs.

This section would also clarify that such square footage thresholds are calculated on the area devoted to the display of merchandise for sale to the public, and not the entire footprint of the building. Back room storage areas, for example, would not be included in the calculation.

Similarly, section 1 would exempt from the RVM requirements any business that devotes no more than 5% of its floor space to the display and sale of consumer commodities, as that term is defined by Agriculture and Markets Law § 214-h.

Finally, Section 1 would exempt from the RVM requirements any business that obtains a waiver from the Commissioner of Environmental Conservation that authorizes the use of alternative technology. Any such technology would be required to determine if a container is redeemable, accumulate information regarding containers redeemed, and issue legal tender, or a scrip, receipt, or other form of credit for the refund value, that can be exchanged for a period of not less than sixty days without requiring the purchase of other goods.

Section 2 of the bill would provide for an immediate effective date.

Existing law

The Returnable Container Act, originally enacted by Chapter 200 of the Laws of 1982, was substantially amended by Part SS of Chapter 59 of the Laws of 2009 effective June 1, 2009.

Those amendments replaced ECL § 27-1007, which provided for the mandatory acceptance of empty beverage containers presented for redemption of the deposit. The new ECL § 27-1007, also requiring mandatory acceptance,

includes mandates for the installation of RVMs at any business that is part of a chain engaged in the same general field of business which operates ten or more stores in the State under common ownership.

ECL § 27-1007(1) (b) requires eight RVMs for any such chain store that has an area of at least 85,000 square feet; four RVMs for at least 60,000 but less than 85,000 square feet; and three RVMs for at least 40,000 but less than 60,000 square feet.

ECL § 27-1003(12) defines "reverse vending machine" as an automated device that uses a laser scanner, microprocessor, or other technology to accurately recognize the universal product code (UPC) on beverage containers to determine if the container is redeemable and accumulates information regarding containers redeemed, including the number of such containers redeemed, thereby enabling the reverse vending machine to accept containers from redeemers and to issue a scrip or receipt for their refund value.

Justification

The 2009 amendments to the Returnable Container Act recognize the important role RVMs play in implementation of the statute. Initial experience with the RVM requirements, however, indicates that some modification of them would be wise and cost effective.

RVMs are commonly used by retail stores and redemption centers to meet their obligations to accept empty beverage containers subject to the Act. The machines provide convenience to the store and the customer who returns the empty containers to redeem the deposit. By requiring the installation of eight, four or three RVMs, depending on the square footage of the business, the 2009 amendments mandate a substantial increase in the deployment of RVMs. The installation of eight RVMs is a substantial undertaking requiring a significant amount of floor space.

The cost of each RVM ranges from approximately $15,000 for a refurbished machine to $30,000 for a new machine. Therefore, for the largest stores, the 2009 requirement were expected to impose a cost range of $150,000 to $240,000 for the machines alone. Experience with implementation is showing, however, that many stores cannot currently accommodate eight machines in a location convenient to the customer because of space constraints. Rather, cost estimates for the construction of safe and accessible space for eight RVMs at a single store can range as high as $1,000,000. In addition, some stores have had to incur an additional cost to apply for and obtain a zoning variance for the building expansion to accommodate the RVMs.

In contrast, many stores are able to accommodate four RVMs with more modest work. The Retail Council of New York State and the Food Industry Alliance of New York both argue that four RVMs at the largest stores are capable of handling the customer demands. Moreover, current law requires the stores to accept empty containers even when the RVMs are not working, and no change is proposed to that fundamental obligation.

Similarly, experience has shown that some stores with large storage space not used for the display of merchandise for sale to the public

had triggered the same respective square footage threshold triggered by other stores with the same overall building footprint but with much more floor space devoted to the display of merchandise for sale to the public. As a result, some stores are obligated to install more RVMs than necessary for their sales volumes. The bill would address this disparity by clarifying that the square footage thresholds triggering RVMs are calculated on the area devoted to the display of merchandise for sale to the public, and not the entire footprint of the building. Therefore, warehousing and office space would not be included in the threshold calculations.

In other cases, large stores, such as building supply and department stores, selling consumer goods other than groceries may sell bottled water or other beverages as an incidental convenience to customers. Yet, these stores typically experience very little empty beverage container returns. Requiring RVMs in this setting imposes an unnecessary financial burden without any significant benefit to the public. More- over, container redemption at these stores must continue to be handled at customer service counters or other areas within the store. The bill would address this issue by exempting from the RVM requirement any store that devotes no more than 5% of its floor space to typical groceries.

Finally, while RVMs are improving the convenience to stores and customers alike, advancing technologies may soon be available to increase the efficiency of the redemption process. Accordingly, the bill would authorize the use of alternative technology upon the issuance of a waiver from the Commissioner of Environmental Conservation. Any alternative technology would be required to determine if a container is redeemable, accumulate information on containers redeemed, and issue either legal tender or a scrip, receipt, or other form of credit for the refund value, that can be exchanged for a period of time not less than 60 days without requiring the purchase of other goods.

Prior legislative history

S.8374 of 2010; Passed Senate

Fiscal implications

None.

Effective date

This bill would take effect immediately.