S T A T E O F N E W Y O R K
________________________________________________________________________
706
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. KAVANAGH, COLTON, MILLMAN, EDDINGTON, GALEF,
LUPARDO, KOON, STIRPE, SCHIMEL, SPANO, MAGNARELLI, WALKER, ERRIGO,
McDONOUGH, ALFANO, O'DONNELL, TITONE, TITUS -- Multi-Sponsored by --
M. of A. ARROYO, BENJAMIN, BOYLAND, BROOK-KRASNY, COOK, DelMONTE,
GLICK, GUNTHER, JEFFRIES, PHEFFER, THIELE, TOWNSEND -- read once and
referred to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
prohibiting the use of certain food packaging and plastic food service
ware
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "food service waste reduction act".
S 2. Article 27 of the environmental conservation law is amended by
adding a new title 29 to read as follows:
TITLE 29
FOOD SERVICE WASTE REDUCTION
SECTION 27-2901. DEFINITIONS.
27-2903. PROHIBITED DISPOSABLE FOOD SERVICE WARE.
27-2905. REQUIRED COMPOSTABLE OR RECYCLABLE DISPOSABLE FOOD
SERVICE WARE.
27-2907. POWERS OF MUNICIPALITIES.
S 27-2901. DEFINITIONS.
1. "AFFORDABLE" MEANS PURCHASABLE FOR NOT MORE THAN FIFTEEN PERCENT
MORE THAN THE PURCHASE COST OF THE NON-BIODEGRADABLE NON-COMPOSTABLE OR
NON-RECYCLABLE ALTERNATIVE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00912-01-9
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2. "ASTM STANDARD" MEANS MEETING THE STANDARDS OF THE AMERICAN SOCIETY
FOR TESTING AND MATERIALS (ASTM) INTERNATIONAL STANDARDS D6400 OR D6868
FOR BIODEGRADABLE AND COMPOSTABLE PLASTICS AS THOSE STANDARDS MAY BE
AMENDED.
3. "COMPOSTABLE" MEANS ALL THE MATERIALS IN THE PRODUCT OR PACKAGE
WILL BREAK DOWN INTO, OR OTHERWISE BECOME PART OF USABLE COMPOST (E.G.,
SOIL-CONDITIONING MATERIAL, MULCH) IN A SAFE AND TIMELY MANNER IN AN
APPROPRIATE COMPOSTING PROGRAM OR FACILITY OR IN A HOME COMPOST PILE OR
DEVICE. COMPOSTABLE DISPOSABLE FOOD SERVICE WARE INCLUDES, BY WAY OF
EXAMPLE, ASTM STANDARD BIO-PLASTICS (PLASTIC-LIKE PRODUCTS) THAT ARE
CLEARLY LABELED, PREFERABLY WITH A COLOR SYMBOL, SUCH THAT ANY COMPOST
COLLECTOR AND PROCESSOR CAN EASILY DISTINGUISH THE ASTM STANDARD
COMPOSTABLE PLASTIC FROM NON-ASTM STANDARD COMPOSTABLE PLASTIC. FOR THE
PURPOSES OF THIS TITLE THE TERM BIODEGRADABLE SHALL HAVE THE SAME MEAN-
ING AS COMPOSTABLE. THIS TITLE USES THE TERMS BIODEGRADABLE AND COMPOST-
ABLE INTERCHANGEABLY AND IN ALL CASES WHETHER THE TERMS ARE USED SEPA-
RATELY, IN THE DISJUNCTIVE OR IN THE CONJUNCTIVE THEY SHALL ALWAYS BE
INTERPRETED AND APPLIED CONSISTENT WITH THIS DEFINITION OF THE TERM
"COMPOSTABLE".
4. "MUNICIPAL CONTRACTORS AND LESSEES" MEANS ANY PERSON OR ENTITY THAT
HAS A CONTRACT WITH THE 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 MUNICIPALITY OR TO BE PAID OUT OF MONIES DEPOSITED IN THE
TREASURY OR OUT OF TRUST MONIES UNDER THE CONTROL OR COLLECTED BY THE
MUNICIPALITY.
5. "MUNICIPAL FACILITY" MEANS ANY BUILDING, STRUCTURE OR VEHICLE OWNED
OR OPERATED BY THE MUNICIPALITY.
6. "MUNICIPAL FACILITY FOOD PROVIDER" MEANS AN ENTITY THAT PROVIDES,
BUT DOES NOT SELL, PREPARED FOOD IN MUNICIPAL FACILITIES.
7. "DISPOSABLE FOOD SERVICE WARE" MEANS ALL CONTAINERS, BOWLS, PLATES,
TRAYS, CARTONS, CUPS, LIDS, STRAWS, FORKS, SPOONS, KNIVES, NAPKINS AND
OTHER ITEMS THAT ARE DESIGNED FOR ONE-TIME USE FOR PREPARED FOODS,
INCLUDING WITHOUT LIMITATION, SERVICE WARE FOR TAKEOUT FOODS AND/OR
LEFTOVERS FROM PARTIALLY CONSUMED MEALS PREPARED BY FOOD VENDORS. THE
TERM "DISPOSABLE FOOD SERVICE WARE" DOES NOT INCLUDE ITEMS COMPOSED
ENTIRELY OF ALUMINUM OR POLYSTYRENE FOAM COOLERS AND ICE CHESTS THAT ARE
INTENDED FOR REUSE NOR DOES THIS TERM INCLUDE RECYCLABLE FOOD SERVICE
WARE.
8. "FOOD VENDOR" MEANS ANY RESTAURANT OR RETAIL FOOD VENDOR LOCATED OR
OPERATING WITHIN THE MUNICIPALITY.
9. "MUNICIPALITY" MEANS THE SAME AS SUCH TERM IS DEFINED IN SECTION
27-0501 OF THIS ARTICLE.
10. "PERSON" MEANS AN INDIVIDUAL, TRUST, FIRM, JOINT STOCK COMPANY,
CORPORATION, INCLUDING A GOVERNMENT CORPORATION, PARTNERSHIP, OR ASSOCI-
ATION.
11. "POLYSTYRENE FOAM" MEANS BLOWN POLYSTYRENE AND EXPANDED AND
EXTRUDED FOAMS (SOMETIMES CALLED STYROFOAM TM) WHICH ARE THERMOPLASTIC
PETROCHEMICAL MATERIALS UTILIZING A STYRENE MONOMER AND PROCESSED BY ANY
NUMBER OF TECHNIQUES INCLUDING, BUT NOT LIMITED TO, FUSION OF POLYMER
SPHERES (EXPANDABLE BEAD POLYSTYRENE), INJECTION MOLDING, FOAM MOLDING,
AND EXTRUSION-BLOWN MOLDING (EXTRUDED FOAM POLYSTYRENE). POLYSTYRENE
FOAM IS GENERALLY USED TO MAKE CUPS, BOWLS, PLATES, TRAYS, CLAMSHELL
CONTAINERS, MEAT TRAYS AND EGG CARTONS.
12. "PREPARED FOOD" MEANS FOOD OR BEVERAGES, WHICH ARE SERVICED, PACK-
AGED, COOKED, CHOPPED, SLICED, MIXED, BREWED, FROZEN, SQUEEZED OR OTHER-
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WISE PREPARED (COLLECTIVELY "PREPARED") FOR INDIVIDUAL CUSTOMERS OR
CONSUMERS. FOR THE PURPOSE OF THIS TITLE, PREPARED FOOD INCLUDES TAKEOUT
FOOD, BUT DOES NOT INCLUDE RAW, BUTCHERED MEATS, FISH 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 OTHER-
WISE THERMALLY DESTROYING SOLID WASTE.
14. "RESTAURANT" MEANS ANY ESTABLISHMENT LOCATED WITHIN A MUNICIPALITY
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,
LOCATED WITHIN THE MUNICIPALITY THAT SELLS PREPARED FOOD.
S 27-2903. PROHIBITED DISPOSABLE FOOD SERVICE WARE.
1. RETAIL FOOD VENDORS SHALL NOT SELL PREPARED FOOD IN DISPOSABLE FOOD
SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
2. MUNICIPAL FACILITY FOOD PROVIDERS SHALL NOT PROVIDE PREPARED FOOD
IN DISPOSABLE FOOD SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
3. MUNICIPAL DEPARTMENTS SHALL NOT PURCHASE, ACQUIRE OR USE DISPOSABLE
FOOD SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM.
4. MUNICIPAL CONTRACTORS AND LESSEES SHALL NOT USE DISPOSABLE FOOD
SERVICE WARE THAT CONTAINS POLYSTYRENE FOAM IN MUNICIPAL FACILITIES AND
WHILE PERFORMING UNDER A MUNICIPAL CONTRACT OR LEASE.
S 27-2905. REQUIRED COMPOSTABLE OR RECYCLABLE DISPOSABLE FOOD SERVICE
WARE.
1. ALL FOOD VENDORS USING ANY DISPOSABLE FOOD SERVICE WARE SHALL USE A
SUITABLE AFFORDABLE ALTERNATIVE COMPOSTABLE OR RECYCLABLE PRODUCT,
UNLESS THERE IS NO SUITABLE AFFORDABLE COMPOSTABLE OR RECYCLABLE PRODUCT
AVAILABLE AS DETERMINED BY THE MUNICIPALITY IN ACCORDANCE WITH THIS
SUBDIVISION. NOT LATER THAN THIRTY DAYS BEFORE THE EFFECTIVE DATE OF
THIS TITLE, THE COMMISSIONER SHALL ADOPT A LIST OF AVAILABLE SUITABLE
AFFORDABLE COMPOSTABLE OR RECYCLABLE ALTERNATIVES FOR EACH PRODUCT TYPE.
THE MUNICIPALITY SHALL REGULARLY UPDATE THE LIST.
2. ALL MUNICIPAL FACILITY FOOD PROVIDERS AND MUNICIPAL DEPARTMENTS
USING ANY DISPOSABLE FOOD SERVICE WARE SHALL USE COMPOSTABLE OR RECYCLA-
BLE DISPOSABLE FOOD SERVICE WARE UNLESS THERE IS NO AFFORDABLE COMPOSTA-
BLE OR RECYCLABLE PRODUCT AVAILABLE AS DETERMINED BY THE MUNICIPALITY IN
ACCORDANCE WITH SUBDIVISION 1 OF SECTION 27-2903 OF THIS TITLE.
3. MUNICIPAL CONTRACTORS AND LESSEES USING ANY DISPOSABLE FOOD SERVICE
WARE SHALL USE COMPOSTABLE OR RECYCLABLE DISPOSABLE FOOD SERVICE WARE IN
MUNICIPAL FACILITIES AND WHILE PERFORMING UNDER A MUNICIPAL CONTRACT OR
LEASE UNLESS THERE IS NO AFFORDABLE COMPOSTABLE OR RECYCLABLE PRODUCT
AVAILABLE AS DETERMINED BY THE MUNICIPALITY IN ACCORDANCE WITH SUBDIVI-
SION 1 OF SECTION 27-2903 OF THIS TITLE.
S 27-2907. POWERS OF MUNICIPALITIES.
1. ANY MUNICIPALITY MAY PROMULGATE REGULATIONS, ORDINANCES, OR LAWS
TO TAKE ANY AND ALL OTHER REASONABLE ACTIONS NECESSARY TO IMPLEMENT AND
ENFORCE THIS TITLE.
2. ANY PERSON MAY SEEK A WAIVER FROM THE REQUIREMENTS OF SECTION
27-2905 OF THIS TITLE BY FILING A REQUEST ON A FORM PROVIDED BY THE
MUNICIPALITY. THE MUNICIPALITY MAY, CONSISTENT WITH THIS TITLE, WAIVE
ANY SPECIFIC REQUIREMENT OF THIS TITLE FOR A PERIOD OF UP TO ONE YEAR IF
THE PERSON SEEKING THE WAIVER HAS DEMONSTRATED THAT STRICT APPLICATION
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OF THE REQUIREMENT WOULD CREATE AN UNDUE HARDSHIP OR PRACTICAL DIFFICUL-
TY NOT GENERALLY APPLICABLE TO OTHER PERSONS IN SIMILAR CIRCUMSTANCES.
THE MUNICIPALITY'S DECISION TO GRANT OR DENY SUCH A WAIVER SHALL BE IN
WRITING AND SHALL BE FINAL.
3. ALL MUNICIPAL CONTRACTS AND LEASES, INCLUDING WITHOUT LIMITATION,
CONTRACTS WITH MUNICIPAL FACILITY FOOD PROVIDERS, SHALL CONTAIN THE
FOLLOWING MINIMUM LANGUAGE: "CONTRACTOR AGREES TO COMPLY FULLY WITH AND
BE BOUND BY ALL OF THE PROVISIONS OF THE FOOD SERVICE WASTE REDUCTION
ACT, AS PROVIDED IN TITLE 29 OF ARTICLE 27 OF THE ENVIRONMENTAL CONSER-
VATION LAW, INCLUDING THE REMEDIES PROVIDED, AND IMPLEMENTING GUIDELINES
AND RULES. THE PROVISIONS OF SUCH LAW ARE INCORPORATED HEREIN BY REFER-
ENCE AND MADE A PART OF THIS AGREEMENT AS THOUGH FULLY SET FORTH. THIS
PROVISION IS A MATERIAL TERM OF THIS AGREEMENT. BY ENTERING INTO THIS
AGREEMENT, CONTRACTOR AGREES THAT IF IT BREACHES THIS PROVISION, MUNICI-
PALITY WILL SUFFER ACTUAL DAMAGES THAT WILL BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO DETERMINE; FURTHER, CONTRACTOR AGREES THAT THE SUM OF ONE
HUNDRED DOLLARS ($100.00) LIQUIDATED DAMAGES FOR THE FIRST BREACH, TWO
HUNDRED DOLLARS ($200.00) LIQUIDATED DAMAGES FOR THE SECOND BREACH IN
THE SAME YEAR, AND FIVE HUNDRED DOLLARS ($500.00) LIQUIDATED DAMAGES FOR
SUBSEQUENT BREACHES IN THE SAME YEAR IS A REASONABLE ESTIMATE OF THE
DAMAGE THAT MUNICIPALITY WILL INCUR BASED ON THE VIOLATION, ESTABLISHED
IN LIGHT OF THE CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT WAS
MADE. SUCH AMOUNTS SHALL NOT BE CONSIDERED A PENALTY, BUT RATHER AGREED
MONETARY DAMAGES SUSTAINED BY MUNICIPALITY BECAUSE OF CONTRACTOR'S FAIL-
URE TO COMPLY WITH THIS PROVISION."
S 3. The environmental conservation law is amended by adding a new
section 71-2728 to read as follows:
S 71-2728. ENFORCEMENT OF SECTIONS 27-2903 AND 27-2905.
1. THE MUNICIPALITY SHALL ISSUE A WRITTEN WARNING TO ANY PERSON THE
MUNICIPALITY DETERMINES IS VIOLATING SECTION 27-2903 OR 27-2905 OF THIS
CHAPTER. IF AFTER ISSUING A WRITTEN WARNING OF VIOLATION FROM THE MUNI-
CIPALITY, THE MUNICIPALITY FINDS THAT PERSON CONTINUES TO VIOLATE THE
PROVISIONS OF SECTION 27-2903 OR 27-2905, THE MUNICIPALITY MAY IMPOSE
THE VARIOUS SANCTIONS PROVIDED IN THIS SECTION.
2. ANY PERSON WHO VIOLATES THE PROVISIONS OF SECTION 27-2903 OR
27-2905 OF THIS CHAPTER SHALL BE GUILTY OF A VIOLATION. IF CHARGED AS A
VIOLATION, UPON CONVICTION THEREOF, SUCH PERSON SHALL BE PUNISHED FOR
THE FIRST OFFENSE BY A FINE OF NOT MORE THAN ONE HUNDRED DOLLARS FOR A
FIRST VIOLATION; NOT MORE THAN TWO HUNDRED DOLLARS FOR A SECOND
VIOLATION IN THE SAME YEAR AND NOT MORE THAN TWO HUNDRED FIFTY DOLLARS
FOR EACH SUBSEQUENT VIOLATION IN THE SAME YEAR.
3. THE MUNICIPALITY MAY ISSUE AN ADMINISTRATIVE CIVIL LIABILITY CITA-
TION TO SUCH PERSON IN AN AMOUNT NOT EXCEEDING ONE HUNDRED DOLLARS FOR
THE FIRST VIOLATION, AN AMOUNT NOT EXCEEDING TWO HUNDRED DOLLARS FOR THE
SECOND VIOLATION, AND NOT MORE THAN TWO HUNDRED FIFTY DOLLARS FOR EACH
SUBSEQUENT VIOLATION AGAINST THE SAME PERSON.
S 4. This act shall take effect on the three hundred sixty-fifth day
after it shall have become a law.