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S04351 Summary:

Add Art 27 Title 20 §§27-2001 - 27-2007, En Con L
Establishes a postconsumer paint collection program; requires producers of architectural paint sold at retail in the state or a representative organization to submit a plan to the commissioner of environmental conservation for the establishment of a postconsumer paint collection program; prohibits a producer or retailer from selling architectural paint in the state unless the producer or producer's representative organization is implementing an approved program plan.
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S04351 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                      March 8, 2019
        Introduced  by  Sens. KENNEDY, O'MARA -- read twice and ordered printed,
          and when printed to be committed to  the  Committee  on  Environmental
        AN  ACT  to  amend  the  environmental  conservation law, in relation to
          establishing a postconsumer paint collection program

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. Article 27 of the environmental conservation law is amended
     2  by adding a new title 20 to read as follows:
     3                                  TITLE 20
     5  Section 27-2001. Definitions.
     6          27-2003. Postconsumer paint collection program.
     7          27-2005. Reporting requirements.
     8          27-2007. Department responsibilities.
     9  § 27-2001. Definitions.
    10    As  used  in  this title, the following terms shall have the following
    11  meanings:
    12    1. "architectural paint" means  interior  and  exterior  architectural
    13  coatings  sold in containers of five gallons or less; provided, however,
    14  that "architectural paint" shall not include industrial, original equip-
    15  ment or specialty coatings.
    16    2. "commissioner" means the commissioner  of  environmental  conserva-
    17  tion.
    18    3. "department" means the department of environmental conservation.
    19    4.  "environmentally  sound management practices" means procedures for
    20  the collection, storage, transportation, reuse, recycling  and  disposal
    21  of  architectural  paint, to be implemented by the producer or represen-
    22  tative organization or by the producers or representative organization's
    23  contracted partners to ensure compliance with  all  applicable  federal,
    24  state  and  local  laws  and  any  regulations  and  ordinances  for the
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4351                             2
     1  protection of human health and  the  environment  and  these  procedures
     2  shall  address  adequate record keeping, tracking and documenting of the
     3  final disposition of materials.
     4    5.  "postconsumer  paint"  means  architectural  paint not used and no
     5  longer wanted by a purchaser.
     6    6. "producer" means a manufacturer of architectural paint  who  sells,
     7  offers for sale or distributes the architectural paint in the state.
     8    7.  "program"  means  the postconsumer paint collection program estab-
     9  lished pursuant to section 27-2003 of this title.
    10    8. "recycling" means a process by which discarded products, components
    11  and by-products are transformed into new usable or marketable  materials
    12  in  a  manner  in  which  the original products may lose their identity.
    13  This term excludes thermal treatment or the  use  of  waste  as  a  fuel
    14  substitute or for energy production.
    15    9.  "representative  organization" means a not-for-profit organization
    16  established by a producer to implement the postconsumer paint collection
    17  program.
    18    10. "retailer" means a person that offers architectural paint for sale
    19  at retail in the state.
    20    11. "Reuse" means the return of a product into the economic stream for
    21  use in the same kind  of  application  as  the  product  was  originally
    22  intended to be used, without a change in the product's identity.
    23    12.  "Sell" or "sale" means any transfer for consideration of title or
    24  the right to use, from a manufacturer or retailer to a  person,  includ-
    25  ing,  but  not  limited  to, transactions conducted through retail sales
    26  outlets, catalogs, mail, the telephone, the internet, or any  electronic
    27  means; this does not include samples, donations, and reuse.
    28  § 27-2003. Postconsumer paint collection program.
    29    1.  No  later than July first, two thousand twenty, a producer, either
    30  individually or cooperatively, or a  representative  organization  shall
    31  submit  to  the  commissioner for the commissioner's approval a plan for
    32  the establishment of a postconsumer paint collection program.  Such plan
    33  shall be accompanied by a fee of five thousand dollars for an individual
    34  producer or, in the case of a representative organization  or  producers
    35  acting  collectively,  a  fee  of ten thousand dollars. The program will
    36  minimize public sector involvement in  the  management  of  postconsumer
    37  paint  by reducing its generation, promoting its reuse and recycling and
    38  negotiating and executing agreements to collect, transport, reuse, recy-
    39  cle and properly dispose of  postconsumer  paint  using  environmentally
    40  sound management practices.
    41    2.  A  producer  may satisfy the postconsumer paint collection program
    42  requirement of this section by agreeing to participate collectively with
    43  other producers.  Any  such  collective  postconsumer  paint  collection
    44  program shall meet the same requirements as an individual producer. Such
    45  program  shall  submit  a  registration  to  the department along with a
    46  registration fee of ten thousand dollars.
    47    3. The plan submitted by the producer or  representative  organization
    48  to the department under this section shall:
    49    (a)  provide  a list of each participating producer and brands covered
    50  by the program.
    51    (b) provide information on the architectural  paint  products  covered
    52  under the program.
    53    (c)  describe  how  the  producer  or representative organization will
    54  collect, transport, recycle, and process postconsumer paint for  end-of-
    55  life management, including recycling and disposal, using environmentally
    56  sound management practices.

        S. 4351                             3
     1    (d)  describe  how  it  will provide for convenient and cost-effective
     2  statewide collection of postconsumer architectural paint in  the  state.
     3  The  producer  or representative organization may coordinate the program
     4  with existing municipal waste collection infrastructure as  is  mutually
     5  agreeable.  A paint retailer may participate, on a voluntary basis, as a
     6  paint collection site if the paint retailer volunteers to  act  as  such
     7  and complies with all applicable laws and regulations.
     8    (e)  provide  geographic modeling to determine the number and distrib-
     9  ution of sites for collection of postconsumer architectural paint  based
    10  on  the following criteria (i) at least ninety percent of New York resi-
    11  dents shall have a collection site within a  fifteen  mile  radius;  and
    12  (ii)  one  additional  site will be established for every fifty thousand
    13  residents of an urbanized area (as defined by the United  States  Census
    14  Bureau),  unless the producer is a small business taxpayer as defined in
    15  paragraph (f) of subdivision one of section two hundred ten of  the  tax
    16  law or unless otherwise approved by the commissioner.
    17    (f)  describe  the  intended  treatment,  storage,  transportation and
    18  disposal options and methods for the collection of  postconsumer  paint.
    19  The  management of paint under the program shall promote reuse and recy-
    20  cling.
    21    (g) describe in  detail  education  and  outreach  efforts  to  inform
    22  consumers about the program. These materials should include (i) informa-
    23  tion  about collection opportunities for postconsumer paint; (ii) infor-
    24  mation about the charge for the operation of the program that  shall  be
    25  included  by  the  producer  in the price charged to the retailer of all
    26  architectural paint sold in the state; and (iii) efforts to promote  the
    27  source reduction, reuse, and recycling of architectural paint.
    28    (h)  set  forth  the  process  by which an independent auditor will be
    29  selected and identify the criteria used by  the  producer  or  represen-
    30  tative organization in selecting an independent auditor.
    31    (i)  identify,  in  detail, the operational plans for interacting with
    32  retailers on the proper handling and management of post-consumer paint.
    33    (j) include the targeted annual collection rate.
    34    (k) be reviewed by an independent financial auditor to assure that any
    35  added cost to paint sold in the state as a result  of  the  postconsumer
    36  paint  collection  program does not exceed the costs of the program. The
    37  independent auditor shall verify that the amount added to each  unit  of
    38  paint will cover the costs of the postconsumer paint collection program.
    39    4. The independent financial auditor may be selected by the department
    40  and the department shall review the work product of any such independent
    41  auditor. The department may terminate the services of any such independ-
    42  ent  auditor. The cost of any work performed by such independent auditor
    43  shall be funded by the program.
    44    5. The commissioner shall approve or reject  a  plan  submitted  under
    45  this  section  within  sixty days of submission and, if rejected, inform
    46  the producer or representative organization in writing as to  any  defi-
    47  ciencies  in  said plan. A producer or representative organization shall
    48  amend and resubmit any rejected plans for reconsideration  within  sixty
    49  days  of  notification  of  the rejection of said plan. The commissioner
    50  shall approve or reject said plan within thirty days of resubmission.
    51    6. Beginning not later than January first, two thousand twenty-one  or
    52  six  months  after  the  plan is approved under subdivision five of this
    53  section, whichever occurs later, the producer or  representative  organ-
    54  ization  shall  implement  the  postconsumer  paint  collection  program
    55  utilizing collection sites established  pursuant  to  paragraph  (e)  of
    56  subdivision three of this section.

        S. 4351                             4

     1    7.  Not later than the implementation date of the program, information
     2  regarding the approved plan, the names of participating  producers,  and
     3  the brands of architectural paint covered by the program shall be posted
     4  on  the  department's  website  and  on  the website of the producer and
     5  representative organization.
     6    8.  Upon implementation of the program, each producer shall include in
     7  the price of any architectural paint sold to retailers and  distributors
     8  in  the  state  the per container amount in the approved program plan. A
     9  retailer or distributor shall not deduct this amount from  the  purchase
    10  price.
    11    9. A producer or retailer shall not sell, or offer for sale, architec-
    12  tural  paint  to  any  person  in  the state unless the producer and the
    13  producer's brands are registered with the department pursuant to section
    14  27-2003 of this title on and after the date  of  implementation  of  the
    15  postconsumer paint collection program.
    16    10. (a) A retailer shall be in compliance with this section if, on the
    17  date the architectural paint was offered for sale, the producer is list-
    18  ed  on  the  department's website as implementing or participating in an
    19  approved program or if the paint brand is  listed  on  the  department's
    20  website as being included in the program.
    21    (b)  A  paint  collection site authorized under the provisions of this
    22  section shall not charge any additional amount for the disposal of paint
    23  when it is offered for disposal.
    24    11. (a) A producer or the representative organization  that  organizes
    25  the  collection,  transport  and processing of postconsumer paint, in an
    26  action solely to increase the recycling  of  architectural  paint  by  a
    27  producer,  representative  organization,  or  retailer  that affects the
    28  types and quantities being recycled or the cost  and  structure  of  any
    29  return program shall not be liable for any claim of a violation of anti-
    30  trust,  restraint of trade or unfair trade practice arising from conduct
    31  undertaken in accordance with the program pursuant to this section.
    32    (b) Provided however, paragraph (a)  of  this  subdivision  shall  not
    33  apply  to  any  agreement  establishing  or affecting the price of paint
    34  except for the postconsumer paint collection assessment or the output or
    35  production of paint or any agreement restricting the geographic area  or
    36  customers to which paint will be sold.
    37    12.  The  operator of the post consumer paint collection program shall
    38  update the plan, as needed, when  there  are  changes  proposed  to  the
    39  current  program. A new plan or amendment will be required to be submit-
    40  ted to the department for approval when:
    41    (a) there is an addition to the products covered under the program; or
    42    (b) there is a revision of the program's goals; or
    43    (c) every four years.
    44    The operator of the postconsumer paint collection program shall notify
    45  the department annually, in writing, if there are no changes proposed to
    46  the program and the producer or representative organization  intends  to
    47  continue  implementation  of  the  program as previously approved by the
    48  department.
    49    13. Any person who becomes a producer on or after January  first,  two
    50  thousand  twenty  shall submit a plan to the department prior to selling
    51  or offering for sale in the state  any  architectural  paint,  and  must
    52  comply with the requirements of this title.
    53  § 27-2005. Reporting requirements.
    54    1.  On or before October fifteenth, two thousand twenty-one, and annu-
    55  ally thereafter, each operator of a program shall submit a report to the
    56  commissioner that details the postconsumer paint collection program  for

        S. 4351                             5
     1  the  prior year's program from July first to June thirtieth.  The report
     2  shall be posted on the department's website. The report shall be  posted
     3  on  the  website  of the producer and representative organization.  Said
     4  report  shall  include a copy of the independent audit detailed in para-
     5  graph (d) of this subdivision. Such annual report shall include:
     6    (a) a detailed description of the methods used to  collect,  transport
     7  and   process  postconsumer  paint  in  the  state  including  detailing
     8  collection methods made available to consumers and an evaluation of  the
     9  program's collection convenience;
    10    (b) the overall volume of postconsumer paint collected in the state;
    11    (c)  the  volume and type of postconsumer paint collected in the state
    12  by method of disposition, including reuse, recycling and  other  methods
    13  of processing or disposal;
    14    (d)  the  total  cost of implementing the program, as determined by an
    15  independent financial audit, as performed by an independent auditor;
    16    (e) samples of all educational  materials  provided  to  consumers  of
    17  architectural paint and retailers; and
    18    (f)  a  detailed  list  of efforts undertaken and an evaluation of the
    19  methods used to disseminate such materials including recommendations, if
    20  any, for how the educational component of the program can be improved.
    21    2. The department shall submit a report regarding  the  implementation
    22  of  this  title  in  this state to the governor and legislature by April
    23  first, two thousand twenty-two  and  every  two  years  thereafter.  The
    24  report must include, at a minimum, an evaluation of:
    25    (a) the architectural paint stream in the state;
    26    (b) disposal, recycling and reuse rates in the state for architectural
    27  paint;
    28    (c) a discussion of compliance and enforcement related to the require-
    29  ments of this title; and
    30    (d) recommendations for any changes to this title.
    31  § 27-2007. Department responsibilities.
    32    1. The department shall promulgate all necessary rules and regulations
    33  including, but not limited to, standards for reuse.
    34    2.  The  department  shall  (a)  maintain  a list of producers who are
    35  implementing or participating pursuant to section 27-2003 of this title,
    36  (b) maintain a list of each such producer's brands, and  (c)  post  such
    37  lists on the department's website.
    38    § 2. This act shall take effect immediately.
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