2012 -- H 7233 SUBSTITUTE A

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LC00817/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- PROPER MANAGEMENT OF

UNUSED PAINT

     Introduced By: Representatives Walsh, Ruggiero, Valencia, Tanzi, and Ferri

     Date Introduced: January 25, 2012

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 24.12

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PROPER MANAGEMENT OF UNUSED PAINT

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     23-24.12-1. Purpose. -- (a) To establish a cost-effective, convenient, statewide system

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for the collection, recycling and reuse of post-consumer paint.

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     (b) To develop a comprehensive strategy, with the cooperation of state entities,

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producers, and retailers, for the proper management of post-consumer paint in a safe and

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environmentally sound manner.

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     (c) To provide fiscal and regulatory consistency for all producers of paint that participate

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in the collection system authorized in this chapter.

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     (d) To establish effective collection, recycling, management and education programs

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resulting in collection of amounts of unused paint consistent with the goals and targets established

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pursuant to this chapter.

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     23-24.12-2. Management of unused architectural paint – Definitions. --

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     (1) “Architectural paint” means interior and exterior architectural coatings sold in

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containers of five (5) gallons or less. Architectural paint does not include industrial, original

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equipment or specialty coatings.

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     (2) “Department” means the department of environmental management.

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     (3) “Director” means the director of the department of environmental management.

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     (4) “Distributor” means a company that has a contractual relationship with one or more

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producers to market and sell architectural paint to retailers in this state.

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     (5) “Environmentally sound management practices” means procedures for the collection,

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storage, transportation, reuse, recycling and disposal of architectural paint, to be implemented by

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the representative organization or such representative organization’s contracted partners to ensure

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compliance with all applicable federal, state and local laws, regulations and ordinances and the

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protection of human health and the environment. Environmentally sound management practices

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include, but are not limited to, record keeping, the tracking and documenting of the use and

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disposition of post- consumer paint in and outside of this state, and environmental liability

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coverage for professional services and for the operations of the contractors working on behalf of

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the representative organization.

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     (6) “Paint stewardship assessment” means the amount added to the purchase price of

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architectural paint sold in this state that is necessary to cover the cost of collecting, transporting

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and processing post-consumer paint by the representative organization pursuant to the paint

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stewardship program.

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     (7) “Post-consumer paint” means architectural paint that is not used and that is no longer

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wanted by a purchaser of architectural paint.

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     (8) “Producer” means a manufacturer of architectural paint who sells, offers for sale,

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distributes or contracts to distribute architectural paint in this state.

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     (9) “Recycling” means any process by which discarded products, components and by-

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products are transformed into new, usable or marketable materials in a manner in which the

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original products may lose their identity.

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     (10) “Representative organization” means the nonprofit organization created by

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producers to implement the paint stewardship program described in section 23-24.11-3.

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     (11) “Retailer” means any person who offers architectural paint for sale at retail in this

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state.

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     (12) “Reuse” means the return of a product into the economic stream for use in the same

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kind of application as the product was originally intended to be used, without a change in the

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product’s identity.

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     (13) “Sell” or “sale” means any transfer of title for consideration including, but not

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limited to, remote sales conducted through sales outlets, catalogues, the Internet or any other

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similar electronic means.

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     23-24.12-3. Establishment of paint stewardship program. – (a) On or before March 1,

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2014, each producer shall join the representative organization and such representative

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organization shall submit a plan for the establishment of a paint stewardship program to the

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department for approval. The program shall minimize the public sector involvement in the

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management of post-consumer paint by reducing the generation of post-consumer paint,

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negotiating agreements to collect, transport, reuse, recycle, and/or burn for energy recovery at an

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appropriately licensed facility post-consumer paint using environmentally sound management

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practices.

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     (b) The program shall also provide for convenient and available state-wide collection of

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post-consumer paint that, at a minimum, provides for collection rates and convenience greater

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than the collection programs available to consumers prior to such paint stewardship program;

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propose a paint stewardship assessment; include a funding mechanism that requires each producer

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who participates in the representative organization to remit to the representative organization

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payment of the paint stewardship assessment for each container of architectural paint sold within

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the state; include an education and outreach program to help ensure the success of the program;

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and, work with the department and Rhode Island economic development corporation to identify

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ways in which the state can motivate local infrastructure investment, business development and

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job creation related to the collection, transportation and processing of post-consumer paint.

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     (c) The plan submitted to the department pursuant to this section shall:

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     (1) Identify each producer participating in the paint stewardship program and the brands

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of architectural paint sold in this state covered by the program;

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     (2) Identify how the representative organization will provide convenient, statewide

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accessibility to the program;

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     (3) Set forth the process by which an independent auditor will be selected and identify the

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criteria used by the representative organization in selecting independent auditor;

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     (4) Identify, in detail, the educational and outreach program that will be implemented to

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inform consumers and retailers of the program and how to participate;

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     (5) Identify the methods and procedures under which the paint stewardship program will

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be coordinated with the Rhode Island resource recovery corporation;

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     (6) Identify, in detail, the operational plans for interacting with retailers on the proper

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handling and management of post-consumer paint;

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     (7) Include the proposed, audited paint assessment as identified in this section;

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     (8) Include the targeted annual collection rate;

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     (9) Include a description of the intended treatment, storage, transportation and disposal

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options and methods for the collected post-consumer paint; and

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     (10) Be accompanied by a fee in the amount of two thousand five hundred dollars

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($2,500) to be deposited into the environmental response fund to cover the review of said plan by

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the department.

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     (d) Not later than sixty (60) days after submission of a plan pursuant to this section, the

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department shall make a determination whether to:

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     (1) Approve the plan as submitted;

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     (2) Approve the plan with conditions; or

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     (3) Deny the plan.

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     (e) Not later than three (3) months after the date the plan is approved, the representative

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organization shall implement the paint stewardship program.

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     (f) On or before March 1, 2014, the representative organization shall propose a uniform

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paint stewardship assessment for all architectural paint sold in this state. Such proposed paint

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stewardship assessment shall be reviewed by an independent auditor to assure that such

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assessment is consistent with the budget of the paint stewardship program described in this

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section and such independent auditor shall recommend an amount for such paint stewardship

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assessment to the department. The department shall be responsible for the approval of such paint

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stewardship assessment based upon the independent auditor’s recommendation. If the paint

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stewardship assessment previously approved by the department pursuant to this section is

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proposed to be changed, the representative organization shall submit the new, adjusted uniform

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paint stewardship assessment to an independent auditor for review. After such review has been

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completed, the representative organization shall submit the results of said auditor’s review and a

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proposal to amend the paint stewardship assessment to the department for review. The department

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shall review and approve, in writing, the adjusted paint stewardship assessment before the new

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assessment can be implemented. Any proposed changes to the paint stewardship assessment shall

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be submitted to the department no later than sixty (60) days prior to the date the representative

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organization anticipates the adjusted assessment to take effect.

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     (g) On and after the date of implementation of the paint stewardship program pursuant to

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this section, the paint stewardship assessment shall be added to the cost of all architectural paint

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sold to retailers and distributors in this state by each producer. On and after such implementation

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date, each retailer or distributor, as applicable, shall add the amount of such paint stewardship

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assessment to the purchase price of all architectural paint sold in this state.

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     (h) Any retailer may participate, on a voluntary basis, as a paint collection point pursuant

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to such paint stewardship program and in accordance with any applicable provision of law or

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regulation.

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     (i) Each producer and the representative organization shall be immune from liability for

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any claim of a violation of antitrust law or unfair trade practice if such conduct is a violation of

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antitrust law, to the extent such producer or representative organization is exercising authority

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pursuant to the provisions of this section.

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     (j) Not later than the implementation date of the paint stewardship program, the

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department shall list the names of participating producers the brands of architectural paint

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covered by such paint stewardship program and the cost of the approved paint stewardship

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assessment on its website.

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     (k)(1) On and after the implementation date of the paint stewardship program, no

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producer, distributor or retailer shall sell or offer for sale architectural paint to any person in this

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state if the producer of such architectural paint is not a member of the representative organization.

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     (2) No retailer or distributor shall be found to be in violation of the provisions of this

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section if, on the date the architectural paint was ordered from the producer or its agent, the

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producer or the subject brand of architectural paint was listed on the department’s website in

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accordance with the provisions of this section.

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     (l) Producers or the representative organization shall provide retailers with educational

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materials regarding the paint stewardship assessment and paint stewardship program to be

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distributed at the point of sale to the consumer. Such materials shall include, but not be limited to,

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information regarding available end-of-life management options for architectural paint offered

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through the paint stewardship program and information that notifies consumers that a charge for

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the operation of such paint stewardship program is included in the purchase price of all

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architectural paint sold in this state.

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     (m) On or before October 15, 2015, and annually thereafter, the representative

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organization shall submit a report to the director of the department of environmental management

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that details the paint stewardship program. Said report shall include a copy of the independent

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audit detailed in subdivision (4) below. Such annual report shall include, but not be limited to:

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     (1) A detailed description of the methods used to collect, transport and process post-

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consumer paint in this state;

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     (2) The overall volume of post-consumer paint collected in this state;

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     (3) The volume and type of post-consumer paint collected in this state by method of

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disposition, including reuse, recycling and other methods of processing or disposal;

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     (4) The total cost of implementing the program, as determined by an independent

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financial audit, as performed by an independent auditor;

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     (5) An evaluation of the adequacy of the program’s funding mechanism;

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     (6) Samples of all educational materials provided to consumers of architectural paint and

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participating retailers; and

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     (7) A detailed list of efforts undertaken and an evaluation of the methods used to

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disseminate such materials including recommendations, if any, for how the educational

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component of the program can be improved.

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     (n) The representative organization shall update the plan, as needed, when there are

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changes proposed to the current program. A new plan or amendment will be required to be

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submitted to the department for approval when:

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     (1) There is a change to the amount of the assessment; or

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     (2) There is an addition to the products covered under the program; or

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     (3) There is a revision of the product stewardship organization’s goals: or

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     (4) Every four (4) years, if requested, in writing, by the department the representative

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organization shall notify the department annually, in writing, if there are no changes proposed to

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the program and the representative organization intends to continue implementation of the

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program as previously approved by the department.

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     23-24.12-4. Regulations. -- The department shall promulgate regulations recognizing

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conditionally exempt small quantity generators of hazardous waste consistent with federal

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Environmental Protection Agency standards. The department is hereby authorized to promulgate

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additional rules and regulations as necessary to implement and carry out the provisions of this

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chapter.

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     23-24.12-5. Violations. -- A violation of any of the provisions of this chapter or any rule

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or regulation promulgated pursuant to section 23-24.11-4 shall be punishable by a civil penalty

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not to exceed one thousand dollars ($1,000). In the case of a second and any subsequent violation,

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the civil penalty shall not exceed five thousand dollars ($5,000) for each violation.

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     23-24.12-6. Reporting to the general assembly. -- Not later than January 15, 2016 and

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biennially thereafter, the director shall submit a report to the general assembly that describes the

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results and activities of the paint stewardship program as enacted pursuant to this chapter

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including any recommendations to improve the functioning and efficiency of the paint collection

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program, as necessary.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- PROPER MANAGEMENT OF

UNUSED PAINT

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     This act would create a program by which the disposal of unused paint products would be

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managed by a paint trade organization created for that purpose, and funded by an assessment on

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retail paint products.

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     This act would take effect upon passage.

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