2019 -- S 0757

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LC002356

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO HEALTH AND SAFETY - PROPER MANAGEMENT OF UNUSED PAINT

     Introduced By: Senator Roger Picard

     Date Introduced: April 04, 2019

     Referred To: Senate Environment & Agriculture

     (Lieutenant Governor)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-24.12-2 and 23-24.12-3 of the General Laws in Chapter 23-

24.12 entitled "Proper Management of Unused Paint" are hereby amended to read as follows:

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

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

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

equipment or specialty coatings.

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

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

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

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

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

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

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

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

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

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

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

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

the representative organization.

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

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

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

stewardship program.

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

wanted by a purchaser of architectural paint.

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

distributes or contracts to distribute architectural paint in this state.

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

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

original products may lose their identity.

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

organization selected to implement the paint stewardship program described in § 23-24.11-3 § 23-

24.12-3.

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

state.

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

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

product's identity.

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

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

similar electronic means.

     23-24.12-3. Establishment of paint stewardship program.

     (a) On or before March 1, 2014, each producer shall join the representative organization

and such representative organization shall submit a plan for the establishment of a paint

stewardship program to the department for approval. The program shall minimize the public

sector involvement in the management of post-consumer paint by reducing the generation of post-

consumer paint, negotiating agreements to collect, transport, reuse, recycle, and/or burn for

energy recovery at an appropriately licensed facility post-consumer paint using environmentally

sound management practices.

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

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

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

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

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

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

and, work with the department and Rhode Island commerce corporation to identify ways in which

the state can motivate local infrastructure investment, business development and job creation

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

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

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

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

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

accessibility to the program;

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

criteria used by the representative organization in selecting independent auditor;

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

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

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

be coordinated with the Rhode Island resource recovery corporation;

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

handling and management of post-consumer paint;

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

     (8) Include the targeted annual collection rate;

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

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

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

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

the department.

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

department shall make a determination whether to:

     (1) Approve the plan as submitted;

     (2) Approve the plan with conditions; or

     (3) Deny the plan.

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

organization shall implement the paint stewardship program.

     (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

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

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

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

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

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

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

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

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

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

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

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

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

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

organization anticipates the adjusted assessment to take effect.

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

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

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

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

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

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

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

regulation.

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

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

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

pursuant to the provisions of this section.

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

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

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

assessment on its website.

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

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

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

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

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

accordance with the provisions of this section.

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

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

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

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

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

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

architectural paint sold in this state.

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

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

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

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

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

consumer paint in this state;

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

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

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

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

financial audit, as performed by an independent auditor;

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

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

participating retailers; and

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

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

component of the program can be improved.

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

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

submitted to the department for approval when:

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

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

     (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

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

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

program as previously approved by the department.

     (o) On or before July 1, 2019, and every two (2) years thereafter, the department shall

issue a request for proposals to solicit the procurement of a representative organization to operate

the paint stewardship program on behalf of the department in accordance with the provisions of

this chapter. The request for proposals shall include a proposal regarding the amount of the paint

stewardship assessment the representative organization would require to operate the paint

stewardship program for a period of two (2) years.

     SECTION 2. This act shall take effect upon passage.

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LC002356

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - PROPER MANAGEMENT OF UNUSED PAINT

***

     This act would require the department of environmental management to request

proposals, every two (2) years, to solicit procurement of a representative organization to operate

the paint stewardship program.

     This act would take effect upon passage.

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