Ban Polystyrene Food Containers

Section 1. Short title. This act shall be known and may be cited as the "polystyrene waste reduction act".

§ 2. Article 27 of the environmental conservation law is amended by adding a new title 20 to read as follows:

TITLE 20

POLYSTYRENE WASTE REDUCTION Section 27-2001. Definitions.

27-2003. Prohibited disposable food service containers.

27-2005. Required compostable or recyclable disposable food

service containers.

27-2007. Unique packaging or financial hardship waiver. § 27-2001. Definitions.

As used in this title:

1. "Affordable" means purchasable for not more than fifteen percent more than the purchase cost of the non-compostable or non-recyclable alternative.

2. "Agency" means any state department, agency, board, public benefit corporation, public authority, or commission.

3. "Agency or municipal facility" means any building, structure or vehicle owned or operated by the agency or municipality.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD00006-09-9

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4. "Agency or municipal contractors and lessees" means any person or entity that has a contract with an agency or a municipality for public works or improvements to be performed, for a franchise, concession or lease of property, for grant monies or goods and services or supplies to be purchased at the expense of the agency or municipality or to be paid out of monies deposited in the treasury or out of trust monies under the control or collected by the agency or municipality.

5. "Agency or municipal facility food provider" means an entity that provides, but does not sell, prepared food in agency or municipal facilities.

6. "Chain retail food vendor" means a retail food vendor with five or more locations that conduct business under the same business name or operate under common ownership or management or pursuant to a franchise agreement with the same franchisor.

7. "Compostable" means all the materials in the product or package meet the American Society for Testing and Materials (ASTM) International Standard Specification for Compostable Plastics D6400, and will:

(a) undergo degradation by biological processes during composting in an appropriate municipal or industrial composting facility to yield carbon dioxide, water, inorganic compounds, and biomass at a rate consistent with other known compostable materials in similar facilities; and

(b) leave no visible, distinguishable or toxic residue, including no adverse impact on the ability of composts to support plant growth once the finished compost is placed in soil.

8. "Home compostable" means all the materials in the product or package conform with the Vincotte OK Compost Home certification using the European Norm 13432 standard, or a comparable standard as determined by the department, and will:

(a) undergo degradation by biological processes during composting in a home compost pile or device to yield carbon dioxide, water, inorganic compounds, and biomass at a rate consistent with other known compostable materials in similar facilities; and

(b) leave no visible, distinguishable or toxic residue, including no adverse impact on the ability of composts to support plant growth once the finished compost is placed in soil.

9. "Disposable food service containers" means all containers, bowls, plates, trays, cartons, cups, lids and other items that are designed or generally recognized by the public as being designed for one-time use to hold, contain, or transport foods, including without limitation, containers for takeout foods and/or leftovers from partially consumed meals prepared by retail food vendors. For the purposes of this title, the term "disposable food service container" does not include containers or other items that are used for the transportation, storage, or display of raw eggs, or raw uncooked butchered meats, fish, seafood, and/or poultry sold from a butcher case or similar retail appliance.

10. "Municipality" means a village, town, city, or county, or any designated agency thereof.

11. "Polystyrene foam" means blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres, injection molding, foam molding, and extrusion-blown molding. Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons. Such term shall not include rigid polystyrene.

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12. "Prepared food" means food or beverages, which are serviced, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared (collectively "prepared") for individual customers or consumers. For the purposes of this title, prepared food includes takeout food, but does not include raw, butchered meats, pork, fish, seafood and/or poultry sold from a butcher case or similar retail appliance.

13. "Recyclable" means material that can be sorted, cleansed and reconstituted using available recycling collection programs for the purpose of using the altered form in the manufacture of a new product. Recycling does not include burning, incinerating, converting, or otherwise thermally destroying solid waste.

14. "Restaurant" means any establishment that sells prepared food for consumption on, near, or off its premises. For purposes of this title, the term includes a restaurant operating from a temporary facility, cart, vehicle or mobile unit.

15. "Retail food vendor" means any store, shop, sales outlet, or other establishment, including a grocery store, delicatessen or restaurant that sells prepared food. § 27-2003. Prohibited disposable food service containers.

1. Retail food vendors shall not possess, sell, or offer for use disposable food service containers that contain polystyrene foam. This subdivision shall not apply to polystyrene foam containers used for prepackaged food that have been filled and sealed prior to receipt by the retail food vendors.

2. Agency or municipal facility food providers shall not possess, sell, or offer for use disposable food service containers that contain polystyrene foam.

3. Agencies and municipalities shall not purchase, acquire or use disposable food service containers that contain polystyrene foam.

4. Agency or municipal contractors and lessees shall not possess, sell, or offer for use disposable food service containers that contain polystyrene foam in agency or municipal facilities or while performing under an agency or municipal contract or lease.

5. Nothing in this section shall be construed to govern the activities of contractors and lessees that occur outside of the state or activities of contractors and lessees that occur with entities other than agencies or municipalities. § 27-2005. Required compostable or recyclable disposable food service

containers.

1. All retail food vendors, agencies, municipalities, agency and municipal facility food providers, and municipal contractors and lessees operating in municipal facilities or performing under a municipal contract or lease using any disposable food service containers shall use a suitable affordable compostable, home compostable, or recyclable product, unless there is no suitable affordable compostable, home compostable, or recyclable product available as determined by the department pursuant to a waiver in accordance with section 27-2007 of this title.

2. Nothing in this section shall be construed to govern the activities of contractors and lessees that occur outside of the state or activities of contractors and lessees that occur with entities other than agencies or municipalities. § 27-2007. Unique packaging or financial hardship waiver.

1. Any not-for-profit corporation, regardless of its income, and any retail food vendor that had a gross income under five hundred thousand dollars per location on their annual income tax filing for the most recent tax year and is not part of a chain retail food vendor may

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request from the department, in a manner and form established by the department, a unique packaging or financial hardship waiver of the requirements of this title. Such waiver request may apply to one or more types of disposable food service containers possessed, sold, or offered for use by any such not-for-profit corporation or retail food vendor.

2. The department shall grant such waiver if such not-for-profit corporation or retail food vendor proves:

(a) that no reasonably feasible alternative exists to a specific and necessary type of polystyrene foam disposable food service container; or

(b) that there is no comparable, affordable disposable food service container not composed of polystyrene foam and that the purchase or use of an alternative disposable food service container not composed of polystyrene foam would create an undue financial hardship; or

(c) that there is no suitable affordable compostable, home compostable, or recyclable product available as an alternative to any type of disposable food service container.

3. Such unique packaging or financial hardship waiver shall be valid for twelve months and shall be renewable upon application to the department. A pending application for such waiver shall be a defense to any notice of violation issued pursuant to this title to which such pending application relates and such notice of violation shall be dismissed.

§ 3. The environmental conservation law is amended by adding a new section 71-2730 to read as follows: § 71-2730. Enforcement of sections 27-2003 and 27-2005 of this chapter.

1. Any person who shall violate section 27-2003 or 27-2005 of this chapter shall receive a warning notice for the first such violation. A person shall be liable to the state of New York for a civil penalty of not more than two hundred fifty dollars for the first violation after receiving a warning, not more than five hundred dollars for the second violation in the same calendar year, and not more than one thousand dollars for each subsequent violation in the same calendar year. For the purposes of this section, each commercial transaction shall constitute no more than one violation. A hearing or opportunity to be heard shall be provided prior to the assessment of any civil penalty.

2. (a) The department, the department of agriculture and markets, the department of health, and the attorney general are hereby authorized to enforce the provisions of sections 27-2003 and 27-2005 of this chapter.

(b) The provisions of section 27-2003 or 27-2005 of this chapter may also be enforced by a village, town, city, or county and the local legislative body thereof may adopt local laws, ordinances or regulations consistent with this title providing for the enforcement of such provisions.

3. Any fines that are collected by the state during proceedings by the state to enforce the provisions of section 27-2003 or 27-2005 of this chapter shall be retained by the state. Any fines that are collected by a municipality during proceedings by the municipality to enforce such provisions within the municipality shall be retained by the municipality.

§ 4. This act shall take effect on the three hundred sixty-fifth day after it shall have become a law. This act shall apply only to agency and municipal contracts executed or extended on or after the effective date. Effective immediately the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such date.