Bill S.2222

SENATE DOCKET, NO. 2077 FILED ON: 5/22/2014

SENATE . . . . . . . . . . . . . . No. 2222

By Mr. Richard T. Moore, a petition (accompanied by bill, Senate, No. 2222) of Richard T. Moore and John V. Fernandes for legislation to establish the Massachusetts paint stewardship program. Revenue.

The Commonwealth of Massachusetts

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In the Year Two Thousand Fourteen

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An Act establishing the Massachusetts paint stewardship program.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 21H of the General Laws is hereby amended by inserting the following section:

Section 9. (a) As used in this section, the following words shall have the following meanings:

“Architectural paint” means interior and exterior architectural coatings sold in containers of five gallons or less and does not mean industrial, original equipment, or specialty coatings.

“Commissioner” means the Commissioner of the Department of Environmental Protection.

“Department” means the Department of Environmental Protection.

“Distributor” means a company that has a contractual relationship with one or more producers to market and sell architectural paint to retailers in the state.

“Environmentally sound management practices” means procedures for the collection, storage, transportation, reuse recycling and disposal of architectural paint, to be implemented by the producer, stewardship organization or their contracted partners to ensure compliance with all applicable federal, state and local laws, regulations and ordinances and protection of human health and the environment. Such procedures shall address adequate record keeping, tracking and documenting the fate of materials within the state and beyond, and adequate environmental liability coverage for professional services and for the operations of the contractors working on behalf of the producer organization.

“Energy recovery” means recovery in which all or a part of the solid waste materials are processed in order to use the heat content or other forms of energy of or from the material.

“Paint stewardship assessment” means the amount added to the purchase price of architectural paint sold in the state necessary to cover the paint stewardship program’s cost of collecting, transporting, and processing the postconsumer paint statewide.

“Postconsumer paint” means architectural paint not used and no longer wanted by a purchaser.

“Producer” means a manufacturer of architectural paint who sells, offers for sale, or distributes that paint in the state under the producer’s own name or brand.

“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 but does not include energy recovery or energy generation by means of combusting discarded products, components, and by-products with or without other waste products.

“Retailer” means any person that offers architectural paint for sale at retail in the state.

“Reuse” means the return of a product into the economic stream for use in the same kind of application as originally intended, without a change in the product’s identity.

“Representative organization” means the nonprofit organization created by producers to implement the paint stewardship program described in paragraph (b).

“Sell” or “sale” means any transfer of title for consideration, including remote sales conducted through sales outlets, catalogues, or the Internet or any other similar electronic means.

(b)(1) On or before April 1, 2015, producers of architectural paint sold at retail in this state or a representative organization shall submit a plan for the establishment of a paint stewardship program to the Commissioner for approval. The plan must minimize public sector involvement in the management of postconsumer paint by reducing its generation, promoting its reuse and recycling, and negotiating and executing agreements to collect, transport, reuse, recycle, burn for energy recovery, and dispose of postconsumer paint using environmentally sound management practices.

(2) The plan must provide for convenient and available statewide collection of post-consumer architectural paint that at a minimum provides for collection rates and convenience equal to or greater than the collection programs available to consumers prior to the paint stewardship program; and addresses the coordination of the architectural paint stewardship program with existing Household Hazardous Waste collection infrastructure as much as is reasonably feasible and mutually agreeable. In order to determine whether or not convenient and available statewide collection of post-consumer architectural paint exists, the plan shall demonstrate that at least 90% of residents have a collection site within a 15-mile radius, and that at least one collection site is established in each municipality with a population of 30,000 or more, unless otherwise approved by the Department. Other than the paint stewardship assessment described in paragraph (3), no fee shall be charged to an individual who disposes of paint at a collection site in accordance with the provisions of this section.

(3) The plan must identify each producer participating in the program and the brands of architectural paint sold in the state covered by the program. The Department shall list these producers and the brands implementing or participating in an approved paint stewardship program on its website.

(4) The plan shall:

(i) identify, in detail, the educational and outreach program that will be implemented to inform consumers and retailers of the program and how to participate;

(ii) identify the methods and procedures under which the paint stewardship program will be coordinated with department;

(iii) identify, in detail, the operational plans for interacting with retailers on the proper handling and management of post-consumer paint;

(iv) include the targeted annual collection rate; and

(v) include a description of the intended treatment, storage, transportation and disposal options and methods for the collected post-consumer paint.

(5) The representative organization shall update the plan and the provisions of the plan enumerated under paragraphs (b)(2) through (b)(4), 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:

(i) there is a change to the amount of the assessment; or

(ii) there is a revision of the product stewardship organization’s goals; or

(iii) 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.

(6) The department shall have the power to enforce the provisions of the plan and may, by regulation, establish enforcement procedures.

(c)(1) A paint stewardship assessment, as established pursuant to subdivision (3) of this subsection, shall be added to the cost of all architectural paint sold to retailers and distributors in this state. Each such retailer or distributor shall add such assessment to the purchase price of all architectural paint sold in this state.

(2) Such paint stewardship program shall include a funding mechanism for the representative organization whereby each architectural paint producer participating in the organization shall remit to the representative organization payment of the paint stewardship assessment for each container of architectural paint it sells in this state.

(3) The representative organization shall establish a uniform paint stewardship assessment for all architectural paint sold in this state. The amount of such paint stewardship assessment shall be approved by the Department.

(4) The paint stewardship assessment shall be reviewed by an independent auditor to assure that such assessment does not exceed the costs of the paint stewardship program 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. Such independent auditor may be selected by the department and the department shall be responsible for the review of the work product of such independent auditor, including, but not limited to, the review of such auditor's assessment of the bid and purchase procedures utilized by the representative organization to implement such program. The department may terminate the services of any such independent auditor. Not less than once every five years, the department may select a different independent auditor to perform the duties described in this section. The cost of any work performed by such independent auditor shall be funded by the paint stewardship assessment.

(d)(1) Beginning no later than July 1, 2015, or three months after the plan is approved under subsection (b)(1) of this section, whichever occurs later, the stewardship organization must begin implementing the plan.

(2) A producer or retailer may not sell or offer for sale architectural paint to any person in the state unless the producer of a paint brand or a stewardship program of which the producer is a member is implementing an approved paint stewardship program plan as required by paragraph (b).

(3) Paint manufacturers or the representative organization described in this section shall provide consumers with educational materials regarding the paint stewardship assessment and paint stewardship program. 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.

(4) A retailer complies with the requirements of this section if, on the date the architectural paint was ordered from the producer or its agent, the producer or the paint brand is listed on the Department’s website as implementing or participating in an approved paint stewardship program. Paint retailers and municipalities may participate as paint collection points pursuant to such paint stewardship program on a voluntary basis and pursuant to all applicable laws and regulations.

(5) Any manufacturer or the representative organization that organizes the collection, transport and processing of postconsumer paint, in accordance with the paint stewardship program described in this section, shall be immune from liability for any claim of a violation of antitrust, restraint of trade or unfair trade practice arising from conduct undertaken in accordance with the paint stewardship program described in this section.

(6) On or before October 15, 2015 and annually thereafter, the producer or representative organization shall submit a report to the Commissioner that details such paint stewardship program. Such report shall include, but not be limited to: (i) A description of the methods used to collect, transport, and process postconsumer paint in this state; (ii) the volume of postconsumer paint collected in this state; (iii) the volume and type of postconsumer paint collected in this state by method of disposition, including reuse, recycling and other methods of processing; (iv) the total cost of implementing such program, as determined by an independent financial audit funded from the paint stewardship assessment; and (v) samples of educational materials provided to consumers of architectural paint.

(7) Financial, production, or sales data reported to the department by a producer or the representative organization shall not be subject to disclosure provided that the Commissioner may release a summary form of such data that does not disclose financial, production or sales data of the producer, retailer or representative organization.

SECTION 2. This act shall take effect upon its passage.

Name:	District/Address:
Richard T. Moore	Worcester and Norfolk
John V. Fernandes	10th Worcester