SB1705 98TH GENERAL ASSEMBLY

LRB098 06358 MGM 36400 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1705

Introduced 2/15/2013, by Sen. Linda Holmes

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.826 new

Creates the Paint Stewardship Act. Requires each producer to join the representative organization. Requires the representative organization to submit a plan to the Director of the Environmental Protection Agency for the establishment of a paint stewardship program. Sets forth requirements for the program. Requires the representative organization, in conjunction with an independent auditor, to propose, and the Agency to approve, a fee that will be added to the cost of all architectural paint sold to retailers and distributors in this State. Creates a state-action antitrust exemption for actions taken under the Act. Prohibits, after the implementation of the paint stewardship program, a producer, distributor, or retailer from selling or offering for sale architectural paint to any person in the State if the producer is not a member of the representative organization. Authorizes the imposition of civil penalties for violations of the Act. Sets forth fees for the program. Amends the State Finance Act. Creates the Paint Stewardship Fund. Effective January 1, 2015.

A BILL FOR

AN ACT concerning safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Paint Stewardship Act.

Section 5. Definitions.

"Agency" means the Illinois Environmental Protection Agency.

"Architectural paint" means interior and exterior architectural coatings sold in containers of 5 gallons or less. "Architectural paint" does not include industrial, original equipment, or specialty coatings.

"Director" means the Director of the Illinois Environmental Protection Agency.

"Distributor" means a company that has a contractual relationship with one or more producers to market and sell architectural paint to retailers in this State.

"Energy recovery" means the process by which all or a portion of solid waste materials are processed or combusted in order to use the heat content or other forms of energy derived from those solid waste materials.

"Environmentally sound management practices" means procedures for the collection, storage, transportation, reuse, recycling, and disposal of architectural paint, to be implemented by the representative organization or that organization's contracted partners to ensure (i) compliance with all applicable federal, State, and local laws, regulations, and ordinances and (ii) the protection of human health and the environment. Environmentally sound management practices include, but are not limited to, record-keeping, the tracking and documenting of the fate of post-consumer paint inside and outside of this State, and environmental liability coverage for professional services and the operations of the contractors working on behalf of the representative organization.

"Fund" means the Paint Stewardship Fund.

"Paint stewardship assessment" means the amount added to the purchase price of architectural paint sold in this State that is necessary to cover the cost of collecting, transporting, and processing post-consumer paint by the representative organization pursuant to the paint stewardship program.

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

"Producer" means a manufacturer of architectural paint who sells, offers for sale, distributes, or contracts to distribute architectural paint in this State.

"Recycling" means any process by which discarded products, components, or by-products are transformed into new, usable, or marketable materials in a manner in which the original products may lose their identity. "Recycling" does not include energy recovery.

"Representative organization" means the nonprofit organization created by producers to implement the paint stewardship program described in Section 10 of this Act.

"Retailer" means any person who offers architectural paint for sale at retail in this State.

"Reuse" means the return of a product into the economic stream for use in the same kind of application as the product was originally intended to be used, without a change in the product's identity.

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

Section 10. Paint stewardship program.

(a) On or before March 1, 2015, each producer shall join the representative organization, and the representative organization shall submit a plan for the establishment of the paint stewardship program described in this Section to the Director for approval. The paint stewardship program shall:

(1) minimize public sector involvement in the management of post-consumer paint by: (A) reducing the generation of post-consumer paint, (B) promoting the reuse and recycling of post-consumer paint, and (C) negotiating and executing agreements to collect, transport, reuse, recycle, burn for energy recovery, and dispose of post-consumer paint using environmentally sound management practices;

(2) provide for convenient and available Statewide collection of post-consumer paint that, at a minimum, provides for collection rates and levels of convenience that are equal to, or greater than, those provided by the collection programs available to consumers before the implementation of the paint stewardship program;

(3) propose a paint stewardship assessment; and

(4) include a funding mechanism that requires each producer who participates in the representative organization to remit to the representative organization payment of the paint stewardship assessment for each container of architectural paint the producer sells in this State.

(b) The plan shall identify each producer participating in the paint stewardship program and the brands of architectural paint sold in this State covered by the program, and it shall address the coordination of the paint stewardship program with existing household hazardous waste collection infrastructure, as much as is reasonably feasible and mutually agreeable.

(c) The Director may approve a plan that meets the requirements of subsections (a) and (b). Not later than 3 months after submission of the plan, the Director shall determine whether to approve the plan.

(d) Not later than 3 months after the date the plan is approved pursuant to subsection (c), the representative organization shall implement the paint stewardship program.

(e) Any retailer may participate, on a voluntary basis and in accordance with any applicable provision of law or regulation, as a paint collection point.

(f) Not later than the implementation date of the paint stewardship program, the Agency shall list the names of participating producers and the brands of architectural paint covered by the paint stewardship program on its website.

(g) The Paint Stewardship Fund is hereby created as a special fund in the State Treasury. Upon submission of the paint stewardship plan required by this Section, each representative organization shall pay to the Agency a fee of $10,000, which the Agency shall deposit into the Paint Stewardship Fund. Upon approval of a paint stewardship program, the representative organization shall also pay to the Agency an annual fee of $20,000, which the Agency shall deposit into the Fund. Moneys in the Fund and interest attributable to those moneys shall be appropriated to the Agency for the following purposes: review and approval of plans for the establishment of a paint stewardship program, oversight and enforcement of the program, and other reasonable administrative costs of the Agency.

Section 15. Paint stewardship assessment.

(a) On or before March 1, 2015, the representative organization shall propose a uniform paint stewardship assessment for all architectural paint sold in this State. An independent auditor shall review the proposed paint stewardship assessment to ensure that it does not exceed the costs of maintaining the paint stewardship program, and the auditor shall recommend an amount for the paint stewardship assessment to the Agency. The Agency shall approve the paint stewardship assessment.

(b) On and after the date of implementation of the paint stewardship program, the paint stewardship assessment shall be added to the cost of all architectural paint sold to retailers and distributors in this State by each producer. On and after the implementation date, each retailer or distributor, as applicable, shall add the amount of the paint stewardship assessment to the purchase price of all architectural paint sold in this State.

Section 20. State-action antitrust exemption. Each producer and the representative organization shall be immune from liability for any claim of a violation of antitrust law or unfair trade practice if the conduct is a violation of antitrust law, to the extent the producer or representative organization is exercising authority pursuant to the provisions of this Act.

Section 25. Enforcement.

(a) On and after the implementation date of the paint stewardship program, no producer, distributor, or retailer shall sell or offer for sale architectural paint to any person in this State if the producer of the architectural paint is not a member of the representative organization.

(b) No retailer or distributor shall be found to be in violation of the provisions of subsection (a) if, on the date the architectural paint was ordered from the producer or its agent, the producer or the subject brand of architectural paint was listed on the Agency's website in accordance with the provisions of subsection (f) of Section 10.

(c) The Director may, after providing notice and opportunity to be heard, impose a civil penalty in the amount of $500 a day against any person who violates the terms of this Act.

Section 30. Consumer education. Producers or the representative organization shall provide consumers with educational materials regarding the paint stewardship assessment and paint stewardship program. Those 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 the paint stewardship program is included in the purchase price of all architectural paint sold in this State.

Section 35. Report to the Environmental Protection Agency. On or before October 15, 2016, and annually thereafter, the representative organization shall submit a report to the Director that details the paint stewardship program. The report shall include, but not be limited to: (1) a description of the methods used to collect, transport, and process post-consumer paint in this State; (2) the volume of post-consumer paint collected in this State; (3) the volume and type of post-consumer paint collected in this State by method of disposition, including reuse, recycling, and other methods of processing; (4) the total cost of implementing the program, as determined by an independent financial audit, as performed by the independent auditor; and (5) samples of educational materials provided to consumers of architectural paint and an evaluation of the methods used to disseminate those materials.

Section 50. The State Finance Act is amended by adding Section 5.826 as follows:

(30 ILCS 105/5.826 new)

Sec. 5.826. The Paint Stewardship Fund.

Section 99. Effective date. This Act takes effect January 1, 2015.