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DEE-10: Returnable Container Act Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 10
Program ID: N/A
Issuing Authority:Henry G. Williams, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Henry G. Williams
Date: 10 December 1984
Issuance Date: 10 December 1984
Latest Review Date (Office Use):

Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:

  1. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
  2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
  3. Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
  4. The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.

I. Purpose

This document establishes the policies and procedures by which the Department of Environmental Conservation (DEC) is to insist upon compliance with the Returnable Container Act and the rules and regulations promulgated to implement it.

II. Background

New York State's Returnable Container Act was adopted by chapter 200 of the Laws of 1982. It was subsequently amended by chapter 149 of the Laws of 1983. The law went into effect on September 12, 1983.

The law establishes requirements for mandatory deposit for glass, metal, aluminum, steel and plastic containers of one gallon or less which hold soft drinks, mineral water, soda water, beer, and other malt beverages. The law establishes a system of mandatory redemptions of these containers back through the chain of distribution. The law also prohibits the use of plastic loops, except those which are photodegradable or biodegradable, and flip tops from metal beverage containers.

III. Present Status

The regulations DEC developed pursuant to the Returnable Container Act went into effect in September 1983. These requirements are currently being revised to address problems which have arisen during the first year of implementation.

Due to the high visibility of the program, the Office of Public affairs has played an important role in responding to questions. This unit has worked with the Divisions of Solid and Hazardous waste and Environmental Enforcement to prepare the new regulations, which attempt to formalize many of the Department's policy decisions made during the past year.

Regional staff of the Division of Law Enforcement have been actively involved in carrying out the enforcement program, with guidance from Central Office and Regional Public Participation Specialists and the Division of Solid and Hazardous Waste.

IV. Program Goals

The stated purpose of the Returnable Container Act is to reduce the litter caused by discarded beverage bottles and cans. The reduction in the volume of beverage containers sent to landfills in new York State and an increase in the recycling of aluminum cans and glass bottles are additional desired results.

The program, which was designed to be self-sustaining, is based on economic incentives. Consumers are charged a deposit for every container they purchase, and are refunded that amount when the empty container is returned. Retailers are paid a handling fee of 1.5 cents for redeeming and sorting each container. In return for marking the containers and collecting them from retailers, distributors are given

  1. the use of the deposit money from the time it is initiated to the time the container is returned to them,
  2. the scrap value of the container, and
  3. any unclaimed deposit money.

The success of the program also depends on educating consumers to bring back containers, making retailers and distributors aware of their responsibilities, and bringing enforcement actions against retailers and distributors who do not comply with the law.

Consumers have an option. They can redeem a container or dispose of it. The system will function regardless of their choice. In most cases where the consumer discards a container, someone other than the original consumer will redeem the disposed-of container, provided the financial incentive is high enough. Redeemers (retailers and distributors) do not have an option - they have an obligation.

Enforcement is essential to the program. The goal of enforcement is to ensure that the system, primarily embodied in the regulations, is working in the way it was designed. The enforcement process entails identifying problem areas and bringing actions to ensure compliance.

V. Enforcement Program

There are two components to the enforcement program.

  1. Retail Level

    The first, which largely involves Regional Environmental Conservation Officers, primarily targets violators at the retail level. Problems are identified through consumer complaints and independent investigation and evaluation. The object is to assess financial penalties, mainly against retailers who either fail to accept returnable containers for redemption or sell unlabeled product.

    The number of actions brought varies significantly from Region to Region, with the largest amount in Regions 1, 2 and 3. As time goes on, it is anticipated that the volume of cases in all Regions will decrease.

    Actions can be brought either administratively or in local criminal courts. The administrative route is preferable because of the larger amount of penalty which can be imposed, the high volume of cases, and the efficiency of the administrative enforcement process. Arrangements are to be made for monthly administrative hearings in the Downstate Regions and on an as-needed basis elsewhere. The Department has developed a straightforward Uniform Administrative Notice (UAN) to be used in administrative proceedings (see Attachment A).

    Penalties are to be assessed according to the following schedule:

    1. Failure to Accept

      This classification includes, but is not limited to

      1. Imposing conditions not specifically allowed by law;
      2. Limiting hours of redemption;
      3. Limiting number of returns; and
      4. Failure to pay cash refunds.

      Penalty and Rationale

      Violations in this category result in additional burdens on consumers. They are the most widespread and potentially the most detrimental because a fast, convenient redemption system is critical to getting consumers to accept a returnable container program.

      In most cases, a small penalty will deter future violations of this type. However, the penalty must be high enough to offset any profits obtained by the refusal to redeem.

      Penalties should ordinarily be between $100 and $250 per violation. The following factors are to be evaluated in each instance to determine the, penalty amount:

      1. Size of the store;
      2. Number of previous violations;
      3. Intent of the violator;
      4. Willingness of respondent to rectify the violation; and
      5. Any particular facts which will make compliance burdensome.
    2. Sale of Improper Containers

      This classification includes, but is not limited to:

      1. Sale of cans with detachable openings;
      2. Sale of improperly marked containers; and
      3. Sale of unmarked containers.

      Penalty and Rationale

      This type of violation has a direct effect on the reduction of litter. There is no incentive to return, and redeemers do not have to accept, improperly marked containers. In addition, retailers can sell unmarked containers at significantly lower prices and put law-abiding competitors at an economic disadvantage.

      Improperly distributed containers can be easily detected by sellers. Penalties must be high enough to counteract any potential profits from illegal sales, and should ordinarily be between $150 and $250 per violation for sales of 10 cases or less and between $250 and $500 per violation for sales of over 10 cases. (Under the statute, sale is defined to include offering for sale.) Actual penalty amounts are to be determined on a case-by-case basis, using the factors discussed under V.A.1. above.

      Regional staffs should consult with Central Office personnel whenever new questions are raised or troublesome problems come up. Inter-regional consistency is desired throughout the program.

  2. Distribution Level

    The second component of the enforcement effort is designed to deal with more sophisticated types of violations, and should be coordinated through the Central Office of the Division of Environmental Enforcement. For the most part, these violations are occurring between retailers and distributors, and include such things as failure to pick up, double redemption, improper labeling, and improper sales.

    Regional responsibility in this type of case includes identifying problems and violators and initiating investigations. The Central Office should be notified of all developments in this area; it will provide support in conducting the investigation when necessary and guidance in preparation of the case. Penalties sought will usually be the maximum allowed under the law.

VI. Evaluation

The statute provides a mechanism by which the Department can acquire the records of deposit initiators, and determine the rate of return statewide and for individual distributors. This information is imperative if the program is to be evaluated properly.

The proposed regulations require deposit initiators to submit quarterly records to the Commissioner. It is anticipated that regional Solid and Hazardous Waste personnel will have the responsibility of evaluating these records and making periodic reports to the Central Office. Regional Law Enforcement will be responsible for assisting Solid and Hazardous Waste in cases where deposit initiators do not produce records.

VII. Current Status of Compliance

At the retail level, compliance problems are being adequately dealt with through the UAN and Uniform Appearance Ticket. the regulations are very specific as to the duties and responsibilities of dealers. Consequently, violations are usually clear, and most cases are disposed of with monetary penalties prior to hearings. As the redemption system becomes increasingly familiar to dealers, problems at this level should diminish.

There are, however, problems at the retailer/distributor level. The general language of the current regulations has resulted in the imposition of additional burdens on dealer-redeemers by some distributors. For example: refusing to accept returns unless containers are sorted in 24-count boxes; requiring dealers to wait while all bottles are hand counted; limiting hours of redemption; and failure to refund in a timely manner.

The new regulations will attempt to better define the responsibilities of distributors and will simplify the preparation of enforcement actions. Until that time, Regional enforcement of this type of violation should be coordinated with Central Office program personnel in order to ensure a strong enforcement effort across the State.

DATED: Albany, New York

December 10, 1984

Henry G. Williams
Commissioner
New York State Department of Environmental Conservation

Attachment A

Returnable Container Law
Administrative Appearance Notice


Issued To: _______________________________________________________

(Full name of individual or corporation) Respondent

Address: ________________________________________________________

PLEASE TAKE NOTICE:

You are hereby directed to appear before an Administrative Law judge designated by the Commissioner of Environmental Conservation of the State of New York at (Address of Regional Office) on (Date) to consider certain violations of Article 27, section ________ of the Environmental Conservation Law and/or Title 6 of the New York Code of Rules and Regulations Part _______ which respondent(s) is (are) charged with having committed as more specifically set forth below.

Facts:

Date and Time of Violation: ____________________________________________

Describe incidents of the violation. Include names of people involved, sequence of events leading to the issuance of the appearance notice.

_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________

At the time of your appearance, a public hearing concerning this matter shall be held pursuant to ECL Article 71 and 6 NYCRR Part 662.

PLEASE TAKE FURTHER NOTICE, that IF YOU FAIL TO APPEAR on the Date and time indicated, the hearing in this matter may occur in your absence and a default judgment may be issued against you and an Order may be issued:

  1. directing that you pay such penalties as may be provided by law;
  2. directing that you undertake such actions as may be authorized by law; and
  3. enjoining you from continuing any activity relating to the subject of this notice which is prescribed by law.

PLEASE TAKE FURTHER NOTICE, that you may appear at the hearing In person or by representative, with or without counsel, that all witnesses will testify under oath, that a record of the proceeding will be made, that you may produce witnesses and evidence in your behalf, that you may request issuance of subpoenas to compel attendance of witnesses and production of records relating to this matter, and that you may cross examine witnesses and examine evidence produced against you.

IF YOU WISH TO DISCUSS SETTLEMENT OF YOUR LIABILITY FOR the ALLEGED VIOLATION, call or write ________________________________________________________________, at least one week prior to the appearance date.

DATE OF ISSUANCE __________________________________

ISSUING OFFICER _____________________________________

Settlement Procedures

If you have settled your liability with the Chief Regional Environmental Conservation Officer, then complete and sign the form below. Send it to the Regional Office for approval along with a check or money order.

You will be notified when the Order is executed and a copy will be returned to you, along with your receipt. IN THE EVENT THE ORDER IS NOT APPROVED BY THE REGIONAL DIRECTOR, YOU WILL BE PROMPTLY NOTIFIED, YOUR CHECK WILL BE RETURNED, AND A HEARING WILL BE SCHEDULED.

Consent Order

WHEREAS, the New York State DEC alleges that respondent committed the violation of the ECL or regulations described in the above Notice, and

WHEREAS, Respondent consents to the issuance of this Order, waives right to a hearing as provided by law, and agrees to be bound by this order,

NOW, being duly advised and having considered this matter IT IS HEREBY ORDERED:

THAT, on account of the acts as aforesaid in alleged violation respondent is hereby assessed a civil penalty in the amount of _______________ dollars which shall be paid concurrent with execution of this order.

DATE: ______________________________

RESPONDENT: ___________________________________________________

DATE: ______________________________

DEC Regional Director: _______________________________________________

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