Bill Text: NY A01038 | 2017-2018 | General Assembly | Amended


Bill Title: Relates to establishing the paint stewardship program, minimizing the public sector involvement in the management of post-consumer paint, and 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.

Spectrum: Partisan Bill (Democrat 87-3)

Status: (Introduced - Dead) 2018-01-17 - print number 1038a [A01038 Detail]

Download: New_York-2017-A01038-Amended.html


                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.
                                                                   LBD04737-03-8

        A. 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-consumer

        A. 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.
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