New Jersey-2014-A1603-Introduced

An Act requiring producers of architectural paint to implement or participate in a paint stewardship program, and supplementing Title 13 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "Architectural Paint Stewardship Act."

2. As used in this act:

"Architectural paint" means interior or exterior architectural coatings that are sold in containers of five gallons or less. "Architectural paint" shall not mean industrial, original equipment, or specialty use coatings.

"Commissioner" means the Commissioner of Environmental Protection.

"Department" means the Department of Environmental Protection.

"Distributor" means a person who has a contractual relationship with one or more producers to market and sell architectural paint to retailers.

"Energy recovery" means a procedure in which all or a part of the solid waste materials of architectural paint are processed to use the heat content or other forms of energy from the solid waste materials.

"Environmentally sound management practices" means the policies or procedures for collection, storage, transportation, reuse, recycling, and disposal of architectural paint, which are implemented by a producer, representative organization, or their contracted partners to ensure compliance with all applicable federal, State, and local laws, rules, regulations, and ordinances, and the protection of human health and the environment, and which address matters such as adequate recordkeeping, accurate tracking and documentation of the use, reuse, recycling, or disposal of post-consumer architectural paint within and outside of the State, and adequate provision of environmental liability coverage for professional services and for the operations of contractors working on behalf of a producer or representative organization.

"Paint stewardship assessment" means the dollar amount, established pursuant to section 4 of this act, which is added to the purchase price of architectural paint sold in the State, in order to cover the paint stewardship program costs associated with the collection, transportation, and processing of post-consumer architectural paint.

"Post-consumer architectural paint" means architectural paint not used and no longer wanted by a purchaser.

"Producer" means a manufacturer of architectural paint that is sold, offered for sale, or distributed in the State, either under the producer's own name or under any other brand name.

"Recycling" means any process used to transform discarded products, components, or by-products into new usable or marketable materials, and which process may cause those discarded products, components, or by-products to lose their original composition or identity. "Recycling" shall not include energy recovery or energy generation by means of combustion or incineration.

"Representative organization" means a nonprofit organization that is established by, and for the benefit of, two or more architectural paint producers in the State, and which is tasked with the development of an architectural paint stewardship program plan, in accordance with section 3 of this act, and implementation of the plan on behalf of, and with the participation of, each member producer.

"Retailer" means any person who sells architectural paint or offers architectural paint for sale at retail to consumers in the State.

"Reuse" means the return of a product into the economic stream for use in the same kind of application originally intended for the product, without a change in the product's original composition or identity.

"Sell" or "sale" means any transfer of title for consideration, including, but not limited to, remote sales transactions conducted through sales outlets, catalogs, or the Internet, or through any other similar electronic means.

3. a. Within one year after the date of enactment of this act, any producer of architectural paint, or any representative organization established pursuant to this act, shall prepare and submit to the commissioner, for the commissioner's approval, a plan for an architectural paint stewardship program. The plan shall minimize public sector involvement in the management of post-consumer architectural paint by reducing its generation, promoting its reuse and recycling, and negotiating and executing agreements for its collection, transportation, reuse, recycling, burning for energy recovery, and disposal using environmentally sound management practices.

b. The plan submitted pursuant to this section shall:

(1) provide for the convenient and available Statewide collection of post-consumer architectural paint in a manner that, at a minimum, ensures collection rates and a level of convenience equal to or greater than that provided by other collection programs available to consumers prior to the establishment of the architectural paint stewardship program;

(2) address, to the extent reasonably feasible and mutually agreeable, the coordination of the architectural paint stewardship program with the existing household hazardous waste collection infrastructure in the State;

(3) in accordance with the provisions of section 4 of this act, identify an appropriate amount for the paint stewardship assessment; and

(4) identify, in two separate lists: (a) each producer participating in the program; and (b) the brands of architectural paint that are included in the program.

4. a. The producer or representative organization submitting an architectural paint stewardship program plan pursuant to section 3 of this act shall establish, as a funding mechanism for the program, a paint stewardship assessment amount to be uniformly applied to the sale price of all brands of architectural paint covered under the paint stewardship program. The assessment amount shall not exceed the costs of the paint stewardship program.

b. A paint stewardship assessment, as established by subsection a. of this section, shall be added to the cost of each container of architectural paint sold by a producer to a retailer or distributor in this State, and each retailer or distributor shall add the paint stewardship assessment to the purchase price of the producer's architectural paint.

c. If a producer is a member of a representative organization, the producer shall remit to the representative organization, the paint stewardship assessment received for each container of architectural paint sold by the producer in the State.

5. a. No later than 90 days after the department's receipt of a plan submitted in accordance with section 3 of this act, the commissioner shall approve, approve with conditions, or disapprove the plan, including the paint stewardship assessment identified therein, and provide written notice of its determination to the producer or representative organization, as the case may be. If the department does not provide notice of its determination within 90 days after its receipt of the plan, the plan shall be deemed to have been approved, and the producer or representative organization, as the case may be, shall proceed to implement the plan.

b. If the commissioner approves with conditions or disapproves a plan submitted pursuant to section 3 of this act, the written notice provided pursuant to subsection a. of this section shall be accompanied by a detailed statement, prepared by the department, describing the reasons for the conditions or disapproval, and prescribing the changes required for approval. No more than 45 days after receipt of the department's written notice and accompanying statement of the reasons for the approval with conditions or the disapproval of a plan submitted pursuant to section 3 of this act, the producer or representative organization, as appropriate, shall incorporate the conditions or changes to the plan as required by the department and submit the modified or replacement plan to the department for approval.

c. No more than 45 days after receipt of a modified or replacement plan that has been submitted in accordance with subsection b. of this section, the department shall approve the plan or reject it, and shall certify the approval or rejection to the producer or representative organization, as the case may be. Upon the department's rejection of any modified or replacement plan submitted pursuant to subsection b. of this section, or upon the failure of the producer or representative organization to submit a modified or replacement plan as required, the department shall make any revisions to the plan the department deems necessary, and shall transmit the plan revisions to the producer or representative organization, as the case may be. Upon receipt of the department's revisions to the plan, the producer or representative organization, as appropriate, shall proceed to implement the revised plan.

d. Within 90 days after the department's approval of, or revisions to, an architectural paint stewardship plan submitted in accordance with section 3 of this act:

(1) the producer or representative organization, as appropriate, shall proceed to implement the architectural paint stewardship program described in the plan; and

(2) the department shall post, at a publicly accessible location on its Internet website, two separate lists respectively identifying (a) each producer participating in the architectural paint stewardship program, and (b) the brands of architectural paint included in the program.

6. In implementing a paint stewardship program plan approved or revised by the commissioner pursuant to section 5 of this act, the producer, or representative organization of which the producer is a member, shall provide consumers with educational materials related to the paint stewardship program and the paint stewardship assessment. These educational materials shall include, but need not be limited to, information identifying the end-of-life management options that are available for post-consumer architectural paint through the paint stewardship program, and a notice provision stating that the costs of program operation will be included in the purchase price of all architectural paint sold in the State.

7. a. A producer, distributor, or retailer shall not sell architectural paint or offer architectural paint for sale to any person in the State unless the producer of the architectural paint, or a representative organization of which the producer is a member, is engaged in the implementation of, or has fully implemented, a paint stewardship program plan approved or revised by the commissioner pursuant to section 5 of this act.

b. A distributor or retailer shall be deemed to be in compliance with subsection a. of this section if, on the date architectural paint is ordered thereby, the producer of the paint and the brand name of the paint are each identified on the respective lists maintained on the department's Internet website pursuant to subsection d. of section 5 of this act.

c. (1) Any producer, distributor, or retailer who violates the provisions of subsection a. of this section shall be subject to: (a) a written warning for a first offense, and (b) a penalty of not less than $500 nor more than $1,000 for each subsequent offense. Any applicable penalty under this section shall be collected in a civil action by summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in accordance with the provisions of this act.

(2) The department may institute a civil action for injunctive relief to enforce the provisions, or prevent a violation, of this section, and the court may proceed in the action in a summary manner.

8. An architectural paint retailer may participate, on a voluntary basis, as a post-consumer paint collection point for the purposes of this act, so long as the retailer complies with all laws, rules, regulations, and ordinances that are applicable to the collection of post-consumer paint. Any retailer who elects to act as a post-consumer paint collection point, and who fails to so comply with any applicable law, rule, regulation, or ordinance shall be subject to a penalty as provided by the law, rule, regulation, or ordinance that is the subject of the violation.

9. a. Except as provided in subsection b. of this section, an action undertaken by a producer or representative organization, which affects the types or quantities of paint being recycled, or the cost or structure of any return or recycling program, shall not be deemed to be a violation of any State law relating to antitrust, restraint of trade, unfair trade practices, or the regulation of trade or commerce, so long as the action is necessary to plan or implement the organized collection or recycling of architectural paint pursuant to this act.

b. Subsection a. of this section shall not apply to: (1) any agreement establishing or affecting the price of paint, except an agreement to establish an architectural paint stewardship assessment, as authorized by this act; or (2) any agreement restricting the output or production of paint or the geographic area or customers to which paint will be sold.

10. a. One year after the department provides notification to a producer or representative organization of its approval of or revisions to a plan in accordance with section 5 of this act, and annually thereafter, the producer or representative organization, as the case may be, shall submit a report to the department describing its architectural paint stewardship program. The report shall include, at a minimum:

(1) a description of the methods used to collect, transport, reuse, recycle, and process post-consumer architectural paint under the program;

(2) the volume of post-consumer architectural paint collected under the program;

(3) the volume of post-consumer architectural paint collected under the program by method of disposition, including reuse, recycling, energy recovery, and disposal in accordance with environmentally sound management practices;

(4) the total cost of implementing the program, as determined by an independent financial audit funded with proceeds from the paint stewardship assessment; and

(5) samples of the educational materials provided to consumers of architectural paint, together with an evaluation of the methods used to disseminate those materials, and an assessment of the educational and outreach effectiveness of those materials, including associated levels of waste prevention and reuse.

b. The department shall not disclose financial, production, or sales data reported by a producer or representative organization pursuant to this section, except that the department may disclose such data in aggregate or summary format, provided that individual producers, distributors, or retailers and their financial, production, or sales data are not specifically identified, and the summary omits any reference to unique characteristics from which the identities of individual producers, distributors, or retailers might be inferred or otherwise ascertained.

11. This act shall take effect immediately, except that section 7 of this act shall take effect on the first day of the eighteenth month after the date of enactment of this act.

STATEMENT

This bill would require each producer of architectural paint sold in the State to implement, or participate in, a Statewide architectural paint stewardship program.

The bill would require any such architectural paint producer, or a representative organization established on behalf of two or more such producers, to develop and implement a plan for an architectural paint stewardship program that would be designed to minimize public sector involvement in the management of post-consumer architectural paint by reducing its generation, promoting its reuse and recycling, and negotiating and executing agreements for its collection, transportation, reuse, recycling, burning for energy recovery, and disposal using environmentally sound management practices. The bill would require any such plan to:

(1) provide for the convenient and available Statewide collection of post-consumer architectural paint in a manner that ensures collection rates and a level of convenience equal to or greater than that provided by other collection programs available to consumers prior to the establishment of the architectural paint stewardship program;

(3) provide two lists respectively identifying each producer participating in the architectural paint stewardship program, and the brands of architectural paint sold under the program.

A producer or representative organization would also be required to establish, as a funding mechanism for the program, and to include in the program plan, a paint stewardship assessment amount that would be uniformly applied to the sale price of all brands of architectural paint covered under the paint stewardship program. The bill would prohibit the assessment amount from exceeding the costs of the program. Each producer would be required to add the paint stewardship assessment to the cost of each container of architectural paint sold thereby to a retailer or distributor in the State, and each retailer or distributor would then be required to add the paint stewardship assessment to the purchase price of the producer's architectural paint. If a producer is a member of a representative organization, the producer would be required to remit to the representative organization, the paint stewardship assessment received for each container of architectural paint sold by the producer in the State.

The bill would require a paint stewardship program plan to be submitted to the DEP for approval prior to its implementation by a paint producer or representative organization. The bill authorizes the department to approve, conditionally approve, or disapprove of a proposed plan. If the department conditionally approves or disapproves of a plan, the bill provides a procedure for subsequent plan revision by the producer or representative organization, and the departmental review of the revised plan. In the event that the department is dissatisfied with a revised plan, the bill authorizes the department, in the interests of expediency, to impose any modifications or substitutions to the plan's provisions it deems necessary, and to require implementation of the plan as so modified by the department.

A producer or representative organization would be required to implement the program described in a proposed plan within 90 days after its approval or modification by the department. The producer or representative organization would further be required to submit annual reports to the DEP, which describe, among other things, the volume of post-architectural paint collected in the State, and the methods used to collect, transport, reuse, recycle, and process post-consumer architectural paint.

The bill would prohibit a producer, distributor, or retailer of architectural paint from selling architectural paint, or offering the same for sale, in the State unless the producer of the paint, or a representative organization of which the producer is a member, is engaged in the implementation of, or has fully implemented, a paint stewardship program plan approved or revised by the commissioner. A distributor or retailer would be deemed in compliance with this sales prohibition if, on the date architectural paint is ordered thereby, the producer of the paint and the brand name of the paint are each identified on the department's Internet website as being included in a stewardship plan.

Any producer, distributor, or retailer who fails to comply with the bill's sales prohibition would be subject to a written warning for a first offense, and a penalty of $500 to $1,000 for each subsequent offense. The department would also be authorized to institute a civil action for injunctive relief to prevent a continuing violation of this sales prohibition. In order to allow time for the submission, approval, or modification of stewardship program plans, however, the bill would delay the effective date of this sales prohibition and penalty provision until the first day of the eighteenth month following the bill's enactment.

Finally, the bill would specify that a producer or representative organization who undertakes an action affecting the types or quantities of paint being recycled, or the cost or structure of any return or recycling program, will not be deemed to be in violation of any State law relating to antitrust, restraint of trade, unfair trade practices, or the regulation of trade or commerce, so long as the action undertaken is necessary to plan or implement the organized collection or recycling of architectural paint pursuant to the bill's provisions. This protection against antitrust liability would, however, not be applicable to: (1) any agreement establishing or affecting the price of paint, except an agreement to establish the architectural paint stewardship assessment, as authorized by the bill; or (2) any agreement restricting the output or production of paint or the geographic area or customers to which paint will be sold.