2012 -- S 2083

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LC00178

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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: Senators Ruggerio, Sosnowski, Lombardo, DiPalma, and Miller

     Date Introduced: January 18, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 42-17.1 of the General Laws entitled "Department of

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Environmental Management" is hereby amended by adding thereto the following section:

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     42-17.1-46. Management of unused architectural paint. -- Definitions – (a)

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"Architectural paint" means interior and exterior architectural coatings sold in containers of five

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(5) gallons or less. Architectural paint does not include industrial, original equipment or specialty

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coatings.

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     (b) "Department" means the department of environmental management.

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     (c) "Director" means the director of the department of environmental management.

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     (d) "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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     (e) "Energy recovery" means the process by which all or a portion of solid waste

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materials are processed or combusted in order to utilize the heat content or other forms of energy

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derived from such solid waste materials.

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     (f) "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 fate of post-

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consumer paint in and outside of this state, and environmental liability coverage for professional

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services and for the operations of the contractors working on behalf of the representative

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organization.

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     (g) "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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     (h) "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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     (i) "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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     (j) "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. "Recycling" does not include energy recovery.

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     (k) "Representative organization" means the nonprofit organization created by producers

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to implement the paint stewardship program described in section 42-17.1-17.

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     (l) "Retailer" means any person who offers architectural paint for sale at retail in this

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state.

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     (m) "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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     (n) "Sell" or "sale" means any transfer of title for consideration including, but not limited

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

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electronic means.

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     42-17.1-47. Establishment of paint stewardship program. -- (a) On or before March 1,

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2013, 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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director 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 post-

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consumer paint using environmentally sound management 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 equal to,

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or greater than, the collection programs available to consumers prior to such paint stewardship

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program; propose a paint stewardship assessment; and include a funding mechanism that requires

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

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organization payment of the paint stewardship assessment for each container of architectural paint

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sold within the state.

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     (c) The plan submitted pursuant to this section shall identify each producer participating

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in the paint stewardship program and the brands of architectural paint sold in this state covered by

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the program; and address the coordination of the paint stewardship program with existing

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household hazardous waste collection infrastructure, as much as is reasonably feasible and

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mutually agreeable.

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     (d) The director may approve the plan for the establishment of a paint stewardship

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program that meets the requirements of this section. Not later than two (2) months after

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submission of a plan pursuant to this section, the director shall make a determination whether or

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not to approve the plan.

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     (e) Not later than two (2) 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, 2013, and every two (2) years thereafter, the representative

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organization shall propose a uniform paint stewardship assessment for all architectural paint sold

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in this state. Such proposed paint stewardship assessment shall be reviewed by an independent

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auditor to assure that such assessment does not exceed the costs of the paint stewardship program

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described in this section and such independent auditor shall recommend an amount for such paint

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stewardship assessment to the department. The department shall be responsible for the approval

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of such paint stewardship assessment. Such independent auditor shall be selected by the

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department and the department shall be responsible for the review of the work product of such

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independent auditor, including, but not limited to, the review of such auditor's assessment of the

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bid and purchase procedures utilized by the representative organization to implement such

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program. The department may terminate the services of any such independent auditor. Not less

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than once every five (5) years, the department shall select a different independent auditor to

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perform the duties described in this section. The cost of any work performed by such independent

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auditor pursuant to the provisions of this section shall be funded by the paint stewardship

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assessment.

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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 and the brands of architectural paint

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covered by such paint stewardship program 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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     (3) The director may seek civil enforcement of the provisions of this section.

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

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materials regarding the paint stewardship assessment and paint stewardship program. Such

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materials shall include, but not be limited to, information regarding available end-of-life

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management options for architectural paint offered through the paint stewardship program and

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information that notifies consumers that a charge for the operation of such paint stewardship

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program is included in the purchase price of all architectural paint sold in this state.

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     (m) On or before August 15, 2014, 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. Such report shall include, but not be limited to, a

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description of the methods used to collect, transport and process post-consumer paint in this state;

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the volume of post-consumer paint collected in this state; the volume and type of post-consumer

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paint collected in this state by method of disposition, including reuse, recycling and other

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methods of processing; the total cost of implementing the program, as determined by an

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independent financial audit, as performed by the independent auditor; an evaluation of the

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operation of the program's funding mechanism; and samples of educational materials provided to

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consumers of architectural paint and an evaluation of the methods used to disseminate such

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materials.

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     (n) Not later than January 15, 2015, and biennially thereafter, the director shall submit, a

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report to the general assembly that describes the results of the paint stewardship program and

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recommends modifications to improve the functioning and efficiency of such program, as

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necessary.

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     SECTION 2. This act shall take effect upon passage.

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LC00178

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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 a surtax on retail

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paint products.

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     This act would take effect upon passage.

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LC00178

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