Creates provisions relating to a post-consumer paint recycling program

FIRST REGULAR SESSION SENATE BILL NO. 239 103RD GENERAL ASSEMBLY INTRODUCED BY SENATOR BURGER. 0247S.01I KRISTINA MARTIN, Secretary AN ACT To amend chapter 701, RSMo, by adding thereto one new section relating to paint recycling. Be it enacted by the General Assembly of the State of Missouri, as follows: Section A. Chapter 701, RSMo, is amended by adding thereto 1 one new section, to be known as section 701.151, to read as 2 follows:3 701.151. 1. As used in this section, the following 1 terms mean: 2 (1) "Administrative fee", a fee set by the department 3 to reimburse the department for administering this section 4 and paid by each producer or representative organization 5 submitting a plan under this section; 6 (2) "Architectural paint", interior and exterior 7 architectural coatings sold in containers of five gallons or 8 less. "Architectural paint" shall not be construed to 9 include industrial, original equipment, or specialty 10 coatings; 11 (3) "Collection site", any location, event, or other 12 department-approved collection service at which 13 architectural paint is accepted into a post-consumer paint 14 collection program under a post-consumer paint collection 15 program plan; 16 (4) "Conditionally exempt small quantity generator", 17 the meaning ascribed to "very small generator" under 40 CFR 18 262.14; 19 SB 239 2 (5) "Department", the department of natural resources; 20 (6) "Director", the director of the department of 21 natural resources, or the director's designee; 22 (7) "Environmentally sound management practices", 23 procedures for the collection, storage, transportation, 24 reuse, recycling, energy recovery, and disposal of 25 architectural paint that shall: 26 (a) Be implemented by producers or a representative 27 organization or by contracted partners of the producers or a 28 representative organization to ensure compliance with all 29 applicable federal, state, and local laws and any 30 regulations and ordinances for the protection of human 31 health and the environment; 32 (b) Address adequate record keeping, tracking, and 33 documenting of the final disposition of materials; and 34 (c) Address appropriate environmental liability 35 coverage for the representative organization; 36 (8) "Household waste", the same definition as in 10 37 CSR 80.2-010; 38 (9) "Paint assessment fee", cost added per container 39 of paint by producers. Such cost shall cover the cost to 40 operate and sustain the program authorized under this 41 section and shall be verified by an independent financial 42 auditor; 43 (10) "Post-consumer paint", architectural paint not 44 used and no longer wanted by a purchaser; 45 (11) "Producer", a manufacturer of architectural paint 46 that sells, offers for sale, or distributes the 47 architectural paint in this state under the producer's own 48 name or brand. "Producer" does not include a retailer who 49 sells, offers for sale, or distributes within or into the 50 SB 239 3 state architectural paint manufactured or trademarked by a 51 person other than the retailer; 52 (12) "Program", the post-consumer paint collection 53 program established under this section; 54 (13) "Recycling", the separation and reuse or 55 remanufacture of materials that might otherwise be disposed 56 of as solid waste; 57 (14) "Representative organization", a nonprofit 58 organization established by producers to implement the 59 program; 60 (15) "Retailer", a person who offers architectural 61 paint or other allied products for sale at retail in this 62 state. 63 2. Producers of architectural paint sold at retail in 64 this state may establish or join a representative 65 organization. The duties under this section shall be met by 66 the representative organization on behalf of all its member 67 producers. Any producer who is not a member of a 68 representative organization shall meet the duties under this 69 section separately. 70 3. (1) A representative organization or a producer of 71 architectural paint sold at retail in this state that is not 72 a member of such representative organization shall develop 73 and submit to the director for the director's approval a 74 plan for the establishment of a post-consumer paint 75 collection program. The program shall be structured to: 76 (a) Reduce the generation of post-consumer paint; 77 (b) Promote the reuse and recycling of post-consumer 78 paint; 79 (c) Manage the post-consumer paint waste stream using 80 environmentally sound management practices; and 81 SB 239 4 (d) Limit the department's role to oversight 82 activities that include approving the program plan and 83 reviewing the annual report. 84 (2) The plan submitted under this section shall: 85 (a) Provide a list of participating producers and 86 brands covered by the program; 87 (b) Provide information on the architectural paint 88 products covered under the program, such as interior or 89 exterior water- and oil-based coatings, primers, sealers, or 90 wood coatings; 91 (c) Describe how the program will provide for 92 convenient and cost-effective statewide collection of post- 93 consumer paint in this state. The producers or 94 representative organization may coordinate the program with 95 existing household hazardous waste collection infrastructure 96 as is mutually agreeable. A paint retailer shall be 97 authorized by the producers or representative organization 98 as a paint collection site only if the paint retailer 99 voluntarily agrees to act as such and complies with all 100 applicable laws and regulations and the retail location is 101 consistent with the maintenance of a cost-effective network 102 of paint collection locations; 103 (d) Establish a goal for the number and geographic 104 distribution of sites for collection of post-consumer paint 105 based on the following criteria: 106 a. At least ninety percent of Missouri residents shall 107 have a collection site within a fifteen-mile radius and one 108 site shall be established for every fifty thousand residents 109 of the state, unless otherwise approved by the director; or 110 b. If the program is unable to meet the requirements 111 of this subsection, a collection event or other department- 112 SB 239 5 approved collection service shall be scheduled on a periodic 113 basis to serve such residents; 114 (e) Describe how post-consumer paint will be managed 115 in the most environmentally and economically sound manner 116 using the following strategies in the following order: 117 reuse, recycling, energy recovery, and disposal; 118 (f) Describe education and outreach efforts to inform 119 consumers about the program. Such efforts should 120 incorporate at least: 121 a. Information about collection opportunities for post- 122 consumer paint; 123 b. Information about the charge for the operation of 124 the program that shall be included in the purchase price of 125 all architectural paint sold in this state; and 126 c. Efforts to promote the source reduction, reuse, and 127 recycling of architectural paint; 128 (g) Establish a per-container cost to be added to 129 architectural paint sold in this state as a result of the 130 program. This per-container cost, known as the paint 131 assessment fee, shall be reviewed by an independent 132 financial auditor to ensure that any added cost to paint 133 sold in this state as a result of the program does not 134 exceed the costs to operate and sustain the program in 135 accordance with sound management practices; and 136 (h) Describe how the program will compensate service 137 providers for activities conducted under the program that 138 may include: 139 a. The collection of post-consumer architectural paint 140 and architectural paint containers through permanent 141 collection sites, collection events, or curbside services; 142 b. The reuse or processing of post-consumer 143 architectural paint at a permanent collection site; and 144 SB 239 6 c. The transportation, recycling, and proper disposal 145 of post-consumer architectural paint. 146 (3) The independent financial auditor required under 147 paragraph (g) of subdivision (2) of this subsection shall be 148 selected by the representative organization after 149 consultation with the department. The independent financial 150 auditor shall verify that the cost added to each unit of 151 paint will cover the costs of the program. The department 152 shall review the work product of the independent financial 153 auditor. The cost of any work performed by such independent 154 financial auditor shall be funded by the paint assessment 155 fees authorized by the program. 156 (4) Each manufacturer under the plan shall include in 157 the price of any architectural paint sold to retailers or 158 distributors in the state the per-container amount of the 159 fee set forth in the plan or fee adjustment. If a 160 representative organization implements the plan for a 161 manufacturer, the manufacturer shall be responsible for 162 filing, reporting, and remitting any fee assessed under this 163 section for each container of architectural paint to the 164 representative organization. A retailer or distributor 165 shall not deduct the amount of the fee from the purchase 166 price of any architectural paint the retailer or distributor 167 sells. 168 (5) No later than sixty days after the submission of a 169 plan under this section, the director shall make a written 170 determination of whether to approve the plan as submitted or 171 disapprove the plan. If the director finds the plan does 172 not meet the requirements of this section, the director 173 shall provide a written explanation of the nonconforming 174 items. Within sixty days following receipt of the 175 director's written explanation of items that do not meet the 176 SB 239 7 requirements of this section, the representative 177 organization or the producer of architectural paint shall 178 submit a revised plan to the director for approval. 179 (6) The department shall enforce the producer's or the 180 representative organization's compliance with the plan and 181 may, by regulation or by using existing regulations 182 promulgated under sections 260.230, 260.240, and 260.249, 183 establish enforcement procedures and penalties. 184 (7) No later than the implementation date of the 185 program, information regarding the approved plan, the names 186 of participating producers, and the brands of architectural 187 paint covered by the program shall be posted on the 188 department's website and on the website of the 189 representative organization. 190 (8) The plan required under this subsection shall be 191 submitted to the department not later than twelve months 192 after the effective date of this section. The department 193 may, for good cause shown, grant an extension of the 194 deadline for submission. 195 (9) Nothing in this section shall be construed to 196 require the department to develop the plan or establish the 197 program authorized under this section. Such requirement 198 shall be the sole responsibility of the producers or 199 representative organization. 200 (10) Nothing in this section shall require a retailer 201 to track, file, report, submit, or remit a fee assessed 202 under this section, sales data, or any other information on 203 behalf of a manufacturer, distributor, or representative 204 organization. Nothing in this section shall prohibit a 205 manufacturer and a retailer from entering into remitter 206 agreements. 207 SB 239 8 4. (1) The department shall establish an 208 administrative fee to be paid by each producer or 209 representative organization submitting a plan under this 210 section. The department shall set the fee at an amount 211 that, when paid by every producer or representative 212 organization that submits a plan, is adequate to reimburse 213 the department's full costs of administering this section. 214 The total amount of annual fees collected under this 215 subdivision shall not exceed the amount necessary to 216 reimburse costs incurred by the department to administer 217 this section. The department may consider relevant factors 218 when establishing the fee including, but not limited to, the 219 portion of architectural paint sold in the state by the 220 producer or the members of the representative organization 221 compared to the total amount of architectural paint sold in 222 the state by all producers or representative organizations 223 submitting a plan. 224 (2) Each producer or representative organization 225 implementing a plan under this section shall pay the 226 administrative fee required in subdivision (1) of this 227 subsection on or before July 1, 2026, and annually 228 thereafter. Each year after the initial payment, the annual 229 administrative fee shall not exceed five percent of the 230 aggregate program fee added to the cost of all architectural 231 paint sold by producers in the state for the preceding 232 calendar year. The department may extend the time for 233 payment upon good cause shown. 234 5. Upon implementation of the program, each producer 235 shall include in the price of any architectural paint sold 236 to retailers and distributors in this state the per- 237 container amount, known as the paint assessment fee, in the 238 SB 239 9 approved plan. No retailer or distributor shall deduct such 239 amount from the purchase price. 240 6. Retailers may incorporate the fee as part of the 241 price amount displayed to consumers of architectural 242 products. Retailers shall not be required to incorporate 243 the fee as part of the price amount displayed to consumers 244 for architectural products, provided that the retailers make 245 information about the fee available to consumers of 246 architectural paint products prior to purchase. 247 7. (1) After the program is implemented, no producer 248 or retailer shall sell or offer for sale architectural paint 249 to any person in this state unless the producer of a paint 250 brand or a representative organization is implementing or 251 participating in the program as required by this section. 252 (2) A retailer shall be deemed to be in compliance 253 with this section if, on the date the architectural paint 254 was offered for sale, the producer is listed on the 255 department's website as implementing or participating in the 256 program or if the paint brand is listed on the department's 257 website as being included in the program. 258 (3) A paint collection site authorized under this 259 section shall not charge any additional amount for the 260 disposal of paint when the paint is offered for disposal. 261 (4) A producer or the representative organization that 262 organizes the collection, transport, and processing of post- 263 consumer paint in accordance with the program shall not be 264 liable for any claim of a violation of antitrust, restraint 265 of trade, unfair trade practice, or other anticompetitive 266 activity arising from conduct undertaken in accordance with 267 the program under this section. 268 (5) Before March thirty-first of each year, the 269 producers or representative organization shall submit an 270 SB 239 10 annual report for the previous year to the director that 271 details the program. The first report shall be submitted 272 after the first full year of implementation. The director 273 may, for good cause shown, extend the deadline for filing 274 the report. The report or information relating to the 275 report shall be posted on the department's website and on 276 the website of the representative organization. The report 277 shall contain at least the following: 278 (a) A description of the methods used to collect, 279 transport, and process post-consumer paint in this state; 280 (b) The volume and type of post-consumer paint 281 collected by method of disposition, containing information 282 about reuse, recycling, other methods of processing, and any 283 other related and appropriate information; 284 (c) Samples of educational materials provided to 285 consumers of architectural paint; 286 (d) The total cost of the program; and 287 (e) An independent financial audit completed by an 288 individual financial auditor chosen by the producers or the 289 representative organization. 290 (6) Financial, production, or sales data reported to 291 the department by a producer or by the representative 292 organization shall not be subject to disclosure, but the 293 director may release a summary form of such data that does 294 not disclose financial, production, or sales data of the 295 producer, retailer, or representative organization. 296 (7) The producers or the representative organization 297 shall implement the program required under this section on 298 January 1, 2027, or six months after the approval of the 299 plan under this section, whichever occurs later. 300 8. (1) Generators of household wastes and 301 conditionally exempt small quantity generators may transport 302 SB 239 11 or send architectural paints to a paint collection site to 303 the extent permitted by a program approved by the director. 304 (2) Paint collection sites may collect and temporarily 305 store architectural paints generated by entities specified 306 in subdivision (1) of this subsection in accordance with the 307 requirements of the program in lieu of any otherwise 308 applicable requirements of state laws or regulations. 309 (3) Nothing in this section shall be construed to 310 restrict the collection of architectural paint by a program 311 where such collection is authorized by any other state laws 312 or regulations. 313 (4) Nothing in this section shall be construed to 314 affect any requirements applicable to facilities that treat, 315 dispose, or recycle architectural paint under any other 316 state laws or regulations. 317 9. The director may promulgate all necessary rules and 318 regulations for the administration of this section. Any 319 rule or portion of a rule, as that term is defined in 320 section 536.010, that is created under the authority 321 delegated in this section shall become effective only if it 322 complies with and is subject to all of the provisions of 323 chapter 536 and, if applicable, section 536.028. This 324 section and chapter 536 are nonseverable and if any of the 325 powers vested with the general assembly pursuant to chapter 326 536 to review, to delay the effective date, or to disapprove 327 and annul a rule are subsequently held unconstitutional, 328 then the grant of rulemaking authority and any rule proposed 329 or adopted after August 28, 2025, shall be invalid and void. 330 