S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10578
 
                           I N  A S S E M B L Y
 
                                May 7, 2018
                                ___________
 
 Introduced  by M. of A. ORTIZ -- 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".
   §  2.  Article  27 of the environmental conservation law is amended by
 adding a new title 22 to read as follows:
 
                                 TITLE 22
                        FOOD SERVICE WASTE REDUCTION
 
 SECTION 27-2201. DEFINITIONS.
         27-2203. PROHIBITED DISPOSABLE FOOD SERVICE WARE.
         27-2205. REQUIRED  COMPOSTABLE  OR  RECYCLABLE  DISPOSABLE  FOOD
                    SERVICE WARE.
         27-2207. POWERS OF MUNICIPALITIES.
 
 § 27-2201. 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.
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01916-01-7

 A. 10578                            2
 
 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  FOAMS
 UTILIZING  A  STYRENE MONOMER AND PROCESSED BY ANY NUMBER OF TECHNIQUES.
 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-
 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.

 A. 10578                            3
 
   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.
 § 27-2203. 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.
 § 27-2205. 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 ONE OF SECTION 27-2203 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 ONE OF SECTION 27-2203 OF THIS TITLE.
 § 27-2207. 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
 27-2205 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
 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 22 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

 A. 10578                            4
 
 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."
   §  3.  The  environmental  conservation law is amended by adding a new
 section 71-2730 to read as follows:
 § 71-2730. ENFORCEMENT OF SECTIONS 27-2203 AND 27-2205.
   1. THE MUNICIPALITY SHALL ISSUE A WRITTEN WARNING TO  ANY  PERSON  THE
 MUNICIPALITY  DETERMINES IS VIOLATING SECTION 27-2203 OR 27-2205 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 27-2203 OR 27-2205 OF THIS  CHAPTER,  THE  MUNICI-
 PALITY MAY IMPOSE THE VARIOUS SANCTIONS PROVIDED IN THIS SECTION.
   2.  ANY  PERSON  WHO  VIOLATES  THE  PROVISIONS  OF SECTION 27-2203 OR
 27-2205 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.
   § 4. This act shall take effect on the three hundred  sixty-fifth  day
 after it shall have become a law.