An Act establishing safe paint stewardship

1 of 1 SENATE DOCKET, NO. 1749 FILED ON: 1/19/2023 SENATE . . . . . . . . . . . . . . No. 542 The Commonwealth of Massachusetts _________________ PRESENTED BY: Susan L. Moran _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act establishing safe paint stewardship. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: Susan L. Moran Plymouth and Barnstable Mathew J. Muratore 1st Plymouth 2/15/2023 Paul W. Mark Berkshire, Hampden, Franklin and Hampshire 3/10/2023 Joanne M. Comerford Hampshire, Franklin and Worcester 5/1/2023 Joan B. Lovely Second Essex 5/30/2023 Bruce E. Tarr First Essex and Middlesex 6/8/2023 Brendan P. Crighton Third Essex 7/5/2023 James B. Eldridge Middlesex and Worcester 7/5/2023 Kay Khan 11th Middlesex 7/17/2023 Sal N. DiDomenico Middlesex and Suffolk 9/11/2023 Jason M. Lewis Fifth Middlesex 9/11/2023 Brian M. Ashe 2nd Hampden 1/3/2024 1 of 8 SENATE DOCKET, NO. 1749 FILED ON: 1/19/2023 SENATE . . . . . . . . . . . . . . No. 542 By Ms. Moran, a petition (accompanied by bill, Senate, No. 542) of Susan L. Moran and Mathew J. Muratore for legislation to establish safe paint stewardship. Environment and Natural Resources. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act establishing safe paint stewardship. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Chapter 21H of the General Laws is hereby amended by adding the 2 following section:- 3 Section 9. (a) As used in this section, the following words shall have the following 4 meanings unless the context clearly requires otherwise: 5 “Architectural paint”, interior and exterior architectural coatings sold in containers of 5 6 gallons or less; provided, however, that “architectural paint” shall not include industrial, original 7 equipment or specialty coatings. 8 “Collection site”, any location, service or event at which architectural paint is accepted 9 into a postconsumer paint collection program pursuant to a postconsumer paint collection 10 program plan. 11 “Commissioner”, the commissioner of environmental protection. 2 of 8 12 “Department”, the department of environmental protection. 13 “Environmentally sound management practices”, procedures for the collection, storage, 14 transportation, reuse, recycling, and disposal of architectural paint, to be implemented by the 15 manufacturer or representative organization or by the manufacturers or representative 16 organization’s contracted partners to comply with all applicable federal, state and local laws and 17 any regulations and ordinances for the protection of human health and the environment. These 18 procedures shall address adequate record keeping, tracking and documenting of the final 19 disposition of materials and appropriate environmental liability coverage for the representative 20 organization. 21 “Household waste”, household waste as defined in 40 CFR § 261.4(b)(1). 22 “Postconsumer paint”, architectural paint not used and no longer wanted by a purchaser. 23 “Manufacturer”, manufacturer of architectural paint who sells, offers for sale or 24 distributes the architectural paint in the State under the manufacturer’s own name or brand. 25 “Program”, the postconsumer paint stewardship program established pursuant to section 26 (b). 27 “Recycling”, a process by which discarded products, components and by-products are 28 transformed into new usable or marketable materials in a manner in which the original products 29 may lose their identity. 30 “Representative organization”, a nonprofit organization established by a manufacturer to 31 implement the postconsumer paint stewardship program. 3 of 8 32 “Retailer”, a company that offers architectural paint or other allied products for retail sale 33 in the commonwealth. 34 “Very small quantity generator”, very small quantity generators as defined in 40 CFR § 35 260.10. 36 (b)(1) A manufacturer of architectural paint sold at retail in the commonwealth or a 37 representative organization shall submit to the commissioner a plan for the establishment of a 38 postconsumer paint stewardship program. The program will seek to reduce the generation of 39 postconsumer paint, promote its reuse and recycling, and manage this waste stream using 40 environmentally sound management practices. 41 (2) The plan submitted by the manufacturer or representative organization to the 42 department under this section shall: 43 (i) Provide a list of participating manufacturers and brands covered by the program. 44 (ii) Provide information on the architectural paint products covered under the program, 45 such as interior or exterior water- and oil-based coatings, primers, sealers, or wood coatings. 46 (iii) Describe how it will provide for convenient and cost-effective statewide collection of 47 postconsumer architectural paint in the commonwealth. The manufacturer or representative 48 organization may coordinate the program with existing household hazardous waste collection 49 infrastructure as is mutually agreeable. A paint retailer may be authorized by the manufacturer 50 or representative organization as a paint collection site if the paint retailer volunteers to act as 51 such, complies with all applicable laws and regulations, and the retail location is consistent with 52 the maintenance of a cost-effective network of paint collection locations. 4 of 8 53 (iv) Establish a goal for the number and geographic distribution of collection sites for 54 postconsumer architectural paint, using geographic modeling and the following criteria: (A) at 55 least 90 percent of Massachusetts residents shall have a collection site within a 15-mile radius; 56 and (B) one site will be available for every 50,000 residents, unless otherwise approved by the 57 commissioner. 58 (v) Describe how postconsumer paint will be managed in an environmentally and 59 economically sound manner using the following strategies, in this order: reuse, recycling, energy 60 recovery, and disposal. 61 (vi) Describe education and outreach efforts to inform consumers about the program. 62 These materials should include (A) information about collection opportunities for postconsumer 63 paint; (B) information about the fee for the operation of the program that shall be included in the 64 purchase price of all architectural paint sold in the commonwealth; and (C) efforts to promote the 65 source reduction, reuse, and recycling of architectural paint. 66 (vii) Be reviewed by an independent auditor to assure that any added fee to paint sold in 67 the commonwealth as a result of the postconsumer paint stewardship program does not exceed 68 the costs to operate and sustain the program in accordance with sound management practices. 69 The independent auditor shall verify that the amount added to each unit of paint will cover the 70 aforementioned costs of the postconsumer paint stewardship program. 71 (3) The representative organization shall select the independent auditor in consultation 72 with the department. The department shall review the work product of the independent auditor. 73 The cost of any work performed by such independent auditor shall be funded by the program. 5 of 8 74 (4) Not later than 60 days after submission of the plan under this section, the 75 commissioner shall make a determination in writing, whether to approve the plan as submitted or 76 disapprove the plan. 77 (5) The department shall enforce the plan and may, by regulation, establish enforcement 78 procedures including the circumstances under which a new plan or an amendment to the plan 79 must be filed by the manufacturer or representative organization. 80 (6) No later than the implementation date of the program, information regarding the 81 approved plan, the names of participating producers, and the brands of architectural paint 82 covered by the program shall be posted on the department’s website and on the website of the 83 representative organization. 84 (7) Upon implementation of the program, each manufacturer shall include in the price of 85 any architectural paint sold to retailers and distributors in the commonwealth the per container 86 amount in the approved program plan. A retailer or distributor shall not deduct this amount from 87 the purchase price. 88 (c)(1) A manufacturer or retailer shall not sell, or offer for sale, architectural paint to any 89 person in the commonwealth unless the manufacturer of a paint brand or manufacturer’s 90 representative organization is implementing an approved paint stewardship plan as required by 91 section (b). 92 (2) A retailer shall be in compliance with this section if, on the date the architectural paint 93 was offered for sale, the manufacturer is listed on the department’s website as implementing or 94 participating in an approved program or if the paint brand is listed on the department’s website as 95 being included in the program. 6 of 8 96 (3) A paint collection site authorized under the provisions of this section shall not charge 97 any additional amount for the disposal of paint when it is offered for disposal. 98 (4) A manufacturer or the representative organization participating in a postconsumer 99 paint stewardship program shall not be liable for any claim of a violation of antitrust, restraint of 100 trade, unfair trade practice, or other anticompetitive conduct arising from conduct undertaken in 101 accordance with the program. 102 (5) On an annual schedule to be determined in the program plan, the manufacturer or 103 representative organization shall submit a report to the commissioner that details the program. 104 The department may extend the time for submission of the annual report for cause shown. The 105 annual report shall include: (i) a description of the methods used to collect and transport 106 postconsumer paint collected in the State; (ii) the volume and type of postconsumer paint 107 collected, and a description of the methods used to process the paint, including reuse, recycling 108 and other methods; (iii) samples of educational materials provided to consumers of architectural 109 paint; and (iv) the total cost of the program and an independent financial audit. An independent 110 financial auditor shall be chosen by the producer or representative organization. The report or 111 information relating to the report shall be posted on the department’s website and on the website 112 of the representative organization. 113 (6) Financial, production or sales data reported to the department by a manufacturer or by 114 the representative organization shall not be subject to disclosure but the commissioner may 115 release a summary form of such data that does not disclose financial, production or sales data of 116 the manufacturer, retailer or representative organization. 7 of 8 117 (d)(1) Generators of household wastes and very small quantity generators are authorized 118 to transport or send their architectural paints to a paint collection site to the extent permitted by a 119 postconsumer paint stewardship program approved by the commissioner. 120 (2) Notwithstanding any general or special law to the contrary, paint collection sites are 121 authorized to collect and temporarily store architectural paints generated by persons specified in 122 this section in accordance with the requirements of the paint stewardship program in lieu of any 123 otherwise applicable law, rule or regulation. 124 (3) Nothing in this section shall be construed as restricting the collection of architectural 125 paint by a postconsumer paint stewardship program where such collection is authorized under 126 any other laws or regulations. 127 (4) Nothing in this section shall be construed to affect any requirements applicable to 128 facilities that treat, dispose, or recycle architectural paint under an otherwise application law, rule 129 or regulation. 130 SECTION 2. The plan required by subsection (b) of section 9 of chapter 21H of the 131 General Laws shall be submitted not later than 12 months after the effective date of this act. The 132 manufacturer or representative organization shall implement the plan within 6 months of the date 133 that the program plan is approved by the commissioner. The department may extend the date of 134 the plan submission or the date of the implementation of the program for good cause shown. 135 SECTION 3. The manufacturer or representative organization shall submit the first 136 annual report detailing the postconsumer paint collection program as required by paragraph (5) 137 of subsection (c) of section 9 of chapter 21H of the General Laws to the commissioner of 8 of 8 138 environmental protection not later than September 1, 2023 and annually thereafter. The 139 department may extend the time for submission of the annual report for cause shown.