STATE OF NEW YORK ________________________________________________________________________ 1038--A 2017-2018 Regular Sessions IN ASSEMBLY January 10, 2017 ___________ Introduced by M. of A. STIRPE, LUPARDO, BRONSON, THIELE, GOTTFRIED, L. ROSENTHAL, FAHY, JENNE, OTIS, SKOUFIS, MOSLEY, BRINDISI, DenDEKKER, MAGNARELLI, SKARTADOS, HEVESI, BARRETT, SIMOTAS, CUSICK, SIMON, PICHARDO, WOERNER, RYAN, GUNTHER, KIM, MAGEE, LENTOL, WEPRIN, JAFFEE, QUART, CAHILL, ABBATE, HUNTER, SANTABARBARA, M. G. MILLER, TITONE, RODRIGUEZ, STECK, SOLAGES, GALEF, CYMBROWITZ, COLTON, SEPULVEDA, McDO- NALD, D'URSO, ROZIC, PHEFFER AMATO, CARROLL, WALLACE, LAVINE, ZEBROW- SKI, RIVERA, ORTIZ, O'DONNELL, DILAN, SEAWRIGHT, DE LA ROSA, DICKENS, NIOU, HARRIS, BLAKE, PRETLOW, ARROYO, BENEDETTO, BARNWELL, JOYNER, PERRY, WALKER, ABINANTI, LIFTON, DINOWITZ, BICHOTTE, BRAUNSTEIN, JEAN-PIERRE, GLICK, PAULIN, MAYER, PELLEGRINO, JONES -- Multi-Spon- sored by -- M. of A. BUCHWALD, COOK, McDONOUGH -- read once and referred to the Committee on Environmental Conservation -- recommitted to the Committee on Environmental Conservation in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the environmental conservation law, in relation to establishing the paint stewardship 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 4 PAINT STEWARDSHIP PROGRAM 5 Section 27-2001. Definitions. 6 27-2003. Paint stewardship program. 7 27-2005. Regulations. 8 27-2007. Reporting. 9 § 27-2001. Definitions. 10 When used in this title: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04737-03-8A. 1038--A 2 1 1. "Architectural paint" means interior and exterior architectural 2 coatings sold in containers of five gallons or less. Architectural paint 3 does not include industrial, original equipment or specialty coatings. 4 2. "Distributor" means a person that has a contractual relationship 5 with one or more producers to market and sell architectural paint to 6 retailers or directly to consumers or end-users in the state. 7 3. "Environmentally sound management practices" means procedures for 8 the collection, storage, transportation, reuse, recycling and disposal 9 of architectural paint, to be implemented by the producer or represen- 10 tative organization or such representative organization's contracted 11 partners to ensure compliance with all applicable federal, state and 12 local laws, regulations and ordinances and the protection of human 13 health and the environment. Environmentally sound management practices 14 include, but are not limited to, record keeping, the tracking and docu- 15 menting of the fate of post-consumer paint in and outside of the state, 16 and environmental liability coverage for professional services and for 17 the operations of the contractors working on behalf of the producer or 18 representative organization. 19 4. "Paint stewardship assessment" means the amount added to the 20 purchase price of architectural paint sold in the state that is neces- 21 sary to cover the cost of collecting, transporting and processing post- 22 consumer paint by the producer or representative organization pursuant 23 to the paint stewardship program. 24 5. "Paint stewardship program" or "program" means a program for the 25 management of post-consumer paint operated by a producer or represen- 26 tative organization. 27 6. "Post-consumer paint" means architectural paint that is not used 28 and that is no longer wanted by a purchaser of architectural paint. 29 7. "Producer" means a manufacturer of architectural paint who sells, 30 offers for sale, distributes or contracts to distribute architectural 31 paint in the state. 32 8. "Recycling" means the series of activities by which recyclables are 33 collected, sorted, processed and converted into raw materials or used in 34 the production of new products. This term excludes thermal treatment or 35 the use of waste as a fuel substitute or for energy production. 36 9. "Representative organization" means a nonprofit organization 37 created by producers to implement the paint stewardship program 38 described in section 27-2003 of this title. 39 10. "Retailer" means any person who offers architectural paint for 40 sale at retail in the state. 41 11. "Reuse" means the return of a product into the economic stream for 42 use in the same kind of application as the product was originally 43 intended to be used, without a change in the product's identity. 44 12. "Sell" or "sale" means any transfer for consideration of title or 45 the right to use, from a manufacturer or retailer to a person, includ- 46 ing, but not limited to, transactions conducted through retail sales 47 outlets, catalogs, mail, the telephone, the internet, or any electronic 48 means; this does not include samples, donations, and reuse. 49 § 27-2003. Paint stewardship program. 50 1. On or before March first, two thousand nineteen, a producer or a 51 representative organization shall submit a plan for the establishment of 52 a paint stewardship program to the department for approval. The program 53 shall minimize the public sector involvement in the management of post- 54 consumer paint by reducing the generation of post-consumer paint, nego- 55 tiating agreements to collect, transport, reuse, recycle, and/or burn 56 for energy recovery at an appropriately licensed facility post-consumerA. 1038--A 3 1 paint using environmentally sound management practices. The program 2 shall minimize the public sector involvement in the management of post- 3 consumer paint by reducing the generation of post-consumer paint, nego- 4 tiating agreements to collect, transport, reuse, recycle, and/or combust 5 for energy recovery at an appropriately authorized facility, including 6 permittees, post-consumer paint using environmentally sound management 7 practices. 8 2. The program shall provide for convenient and available state-wide 9 collection of post-consumer paint that, at a minimum, provides at least 10 one permanent collection site located within a fifteen mile radius of 11 all "incorporated cities" and "census-designated places" in the state; 12 and one additional permanent collection site for every thirty thousand 13 people located in those areas, unless otherwise approved by the depart- 14 ment. Where a permanent collection site cannot be located within a 15 fifteen mile radius of an incorporated city or census-designated place, 16 the program shall provide for at least one collection event annually. 17 The program shall not charge a fee to the consumer at the time of 18 collection of post-consumer architectural paint. 19 3. The plan submitted to the department pursuant to this section 20 shall: 21 (a) identify each producer participating in the paint stewardship 22 program and the brands of architectural paint sold in the state covered 23 by the program; 24 (b) identify how the producer or representative organization will 25 provide convenient, statewide accessibility to the program; 26 (c) set forth the process by which an independent auditor will be 27 selected and identify the criteria used by the producer or represen- 28 tative organization in selecting an independent auditor; 29 (d) identify, in detail, the educational and outreach program that 30 will be implemented to inform consumers and retailers of the program and 31 how to participate; 32 (e) identify, in detail, the operational plans for interacting with 33 retailers on the proper handling and management of post-consumer paint; 34 (f) include the proposed, audited paint assessment as identified in 35 this section and the criteria upon which the assessment is based; 36 (g) include the targeted annual collection rate; 37 (h) include a description of the intended treatment, storage, trans- 38 portation and disposal options and methods for the collected post-con- 39 sumer paint; and 40 (i) be accompanied by a fee in the amount of five thousand dollars for 41 each producer, or ten thousand dollars for each product stewardship 42 organization to be deposited into the environmental regulatory account 43 as established in section 72-1009 of this chapter, to cover the review 44 of said plan by the department. 45 4. The commissioner shall approve or reject a plan submitted under 46 this section within ninety days of submission and, if rejected, inform 47 the producer or representative organization in writing as to any defi- 48 ciencies in said plan. A producer or representative organization shall 49 amend and resubmit any rejected plans for reconsideration within sixty 50 days of notification of the rejection of said plan. The commissioner 51 shall approve or reject said plan within thirty days of resubmission. A 52 plan shall be approved by the commissioner if it meets the required 53 elements under subdivision three of this section. 54 5. Not later than three months after the date the plan is approved, 55 the representative organization shall implement the paint stewardship 56 program.A. 1038--A 4 1 6. On or before March first, two thousand nineteen, the proposed 2 uniform paint stewardship assessment for all architectural paint sold in 3 the state shall be reviewed by an independent auditor to assure that the 4 assessment is consistent with the budget of the paint stewardship 5 program described in this section and the independent auditor shall 6 recommend an amount for the paint stewardship assessment to the depart- 7 ment. The department shall approve the paint stewardship assessment 8 based upon the independent auditor's recommendation. The department 9 shall be responsible for the approval of such paint stewardship assess- 10 ment based upon the independent auditor's recommendation. If the paint 11 stewardship assessment previously approved by the department pursuant to 12 this section is proposed to be changed, the producer or representative 13 organization shall submit the new, adjusted uniform paint stewardship 14 assessment to an independent auditor for review. After such review has 15 been completed, the producer or representative organization shall submit 16 the results of said auditor's review and a proposal to amend the paint 17 stewardship assessment to the department for review. The department 18 shall review and approve, in writing, the adjusted paint stewardship 19 assessment before the new assessment can be implemented. Any proposed 20 changes to the paint stewardship assessment shall be submitted to the 21 department no later than sixty days prior to the date the producer or 22 representative organization anticipates the adjusted assessment to take 23 effect. 24 7. On and after the date of implementation of the paint stewardship 25 program pursuant to this section, the paint stewardship assessment shall 26 be added to the cost of all architectural paint sold to retailers and 27 distributors in the state by each producer. On and after such implemen- 28 tation date, each retailer or distributor, as applicable, shall add the 29 amount of such paint stewardship assessment to the purchase price of all 30 architectural paint sold in the state. 31 8. Any retailer may participate, on a voluntary basis, as a paint 32 collection point pursuant to such paint stewardship program and in 33 accordance with any applicable provision of law or regulation. 34 9. Each producer and the representative organization shall be immune 35 from liability for any claim of a violation of antitrust law or unfair 36 trade practice if such conduct is a violation of antitrust law, to the 37 extent such producer or representative organization is exercising 38 authority pursuant to the provisions of this section. 39 10. Not later than the implementation date of the paint stewardship 40 program, the department shall list the names of participating producers 41 and the brands of architectural paint covered by such paint stewardship 42 program on its website. 43 11. (a) On and after the implementation date of the paint stewardship 44 program, no producer, distributor or retailer shall sell or offer for 45 sale architectural paint to any person in the state if the producer of 46 such architectural paint is not a member of the representative organiza- 47 tion. 48 (b) No retailer or distributor shall be found to be in violation of 49 the provisions of this section if, on the date the architectural paint 50 was ordered from the producer or its agent, the producer or the subject 51 brand of architectural paint was listed on the department's website in 52 accordance with the provisions of this section. 53 (c) Notwithstanding any other provision of law, a retailer carrying 54 out duties or responsibilities imposed by this title shall incur no 55 civil liability or penalty of any sort unless it is determined by a 56 court of competent jurisdiction that such retailer has acted in a gross-A. 1038--A 5 1 ly negligent manner in the transport or storage of paint and/or altering 2 the contents of a returned paint container. 3 12. Producers or the representative organization shall provide retail- 4 ers with educational materials regarding the paint stewardship assess- 5 ment and paint stewardship program to be distributed at the point of 6 sale to the consumer. Such materials shall include, but not be limited 7 to, information regarding available end-of-life management options for 8 architectural paint offered through the paint stewardship program and 9 information that notifies consumers that a charge for the operation of 10 such paint stewardship program is included in the purchase price of all 11 architectural paint sold in the state. 12 13. On or before October fifteenth, two thousand twenty, and annually 13 thereafter, each operator of a program shall submit a report to the 14 commissioner that details the paint stewardship program for the prior 15 year's program from July first to June thirtieth. Said report shall 16 include a copy of the independent audit detailed in paragraph (d) of 17 this subdivision. Such annual report shall include: 18 (a) a detailed description of the methods used to collect, transport 19 and process post-consumer paint in the state including detailing 20 collection methods made available to consumers and an evaluation of the 21 program's collection convenience; 22 (b) the overall volume of post-consumer paint collected in the state; 23 (c) the volume and type of post-consumer paint collected in the state 24 by method of disposition, including reuse, recycling and other methods 25 of processing or disposal; 26 (d) the total cost of implementing the program, as determined by an 27 independent financial audit, as performed by an independent auditor; 28 (e) an evaluation of the adequacy of the program's funding mechanism; 29 (f) samples of all educational materials provided to consumers of 30 architectural paint and retailers; 31 (g) a detailed list of efforts undertaken and an evaluation of the 32 methods used to disseminate such materials including recommendations, if 33 any, for how the educational component of the program can be improved; 34 and 35 (h) the annual report shall be accompanied by a fee in the amount of 36 three thousand dollars to be deposited into the environmental regulatory 37 account, established pursuant to section 72-1009 of this chapter to 38 cover the review of said plan by the department. 39 14. The representative organization shall update the plan, as needed, 40 when there are changes proposed to the current program. A new plan or 41 amendment will be required to be submitted to the department for 42 approval when: 43 (a) there is a change to the amount of the assessment; or 44 (b) there is an addition to the products covered under the program; or 45 (c) there is a revision of the product stewardship organization's 46 goals; or 47 (d) every four years, if requested, in writing, by the department. 48 The operator of the paint stewardship program shall notify the depart- 49 ment annually, in writing, if there are no changes proposed to the 50 program and the producer or representative organization intends to 51 continue implementation of the program as previously approved by the 52 department. 53 § 27-2005. Regulations. 54 The department is hereby authorized to promulgate rules and regu- 55 lations as may be necessary to implement and carry out the provisions of 56 this title.A. 1038--A 6 1 § 27-2007. Reporting. 2 Not later than January fifteenth, two thousand twenty-one, and bienni- 3 ally thereafter, the commissioner shall submit a report to the legisla- 4 ture and the governor that describes the results and activities of the 5 paint stewardship program as enacted pursuant to this title including 6 any recommendations to improve the functioning and efficiency of the 7 paint stewardship program, as necessary. 8 § 2. The environmental conservation law is amended by adding a new 9 section 71-2730 to read as follows: 10 § 71-2730. Enforcement of title 20 of article 27 of this chapter. 11 1. Civil penalties under this section shall be assessed by the commis- 12 sioner after a hearing or opportunity to be heard pursuant to the 13 provisions of section 71-1709 of this article, or shall be assessed by 14 the court in any action or proceeding pursuant to this section. In addi- 15 tion to any civil penalties, any retailer or producer, as those terms 16 are defined in section 27-2001 of this chapter, may by similar process 17 be enjoined from continuing such violation. 18 2. All penalties collected pursuant to this section shall be paid over 19 to the commissioner for deposit to the environmental protection fund 20 established pursuant to section ninety-two-s of the state finance law. 21 § 3. This act shall take effect immediately.