Full Text of HB1899 102nd General Assembly
HB1899ham001 102ND GENERAL ASSEMBLY | Rep. Charles Meier Filed: 3/12/2021
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| 1 | | AMENDMENT TO HOUSE BILL 1899
| 2 | | AMENDMENT NO. ______. Amend House Bill 1899 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the Paint | 5 | | Stewardship Act. | 6 | | Section 5. Findings. The General Assembly finds that: | 7 | | (1) Leftover architectural paints present significant | 8 | | waste management issues for counties and municipalities. | 9 | | Managing the end-of-life of architectural paint can be costly | 10 | | and present environmental, health, and safety risks if not | 11 | | properly managed. | 12 | | (2) Nationally, an estimated 10% of architectural paint | 13 | | purchased by consumers is leftover. Current governmental | 14 | | programs collect only a fraction of the potential leftover | 15 | | paint for proper reuse, recycling, or disposal. In northern | 16 | | Illinois, there are only 4 permanent household hazard waste |
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| 1 | | facilities and these facilities do not typically accept latex | 2 | | paint, the most common paint purchased by consumers. | 3 | | (3) It is in the best interest of this State for paint | 4 | | manufacturers to assume responsibility for development and | 5 | | implementation of a cost-effective paint stewardship program | 6 | | that will: educate consumers on strategies to reduce the | 7 | | generation of leftover paint; provide opportunities to reuse | 8 | | leftover paint; and collect, transport, and process leftover | 9 | | paint for end-of-life management, including reuse, recycling, | 10 | | energy recovery, and disposal. Requiring paint manufacturers | 11 | | to assume responsibility for the collection, recycling, reuse, | 12 | | transportation, and disposal of leftover paint will provide | 13 | | more opportunities for consumers to properly manage their | 14 | | leftover paint, provide fiscal relief for this State and local | 15 | | governments in managing leftover paint, keep paint out of the | 16 | | waste stream, and conserve natural resources. | 17 | | (4) Similar architectural paint stewardship programs are | 18 | | currently operating in 9 jurisdictions and are successfully | 19 | | diverting a significant portion of the collected paint waste | 20 | | from landfills. These paint stewardship programs are saving | 21 | | counties and municipalities the cost of managing paint waste | 22 | | and have been successful at recycling leftover paint into | 23 | | recycled paint products as well as other products. For | 24 | | instance, in the state of Oregon, 64% of the latex paint | 25 | | collected in the 2019-2020 fiscal year was recycled into paint | 26 | | products; and, in Minnesota, 48% of the latex paint collected |
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| 1 | | during the same time period was reused or recycled into paint | 2 | | products. Given the lack of access to architectural paint | 3 | | collection programs in Illinois, especially for leftover latex | 4 | | architectural paint, and the demonstrated ability of the paint | 5 | | industry to collect and recycle a substantial portion of | 6 | | leftover architectural paint, this legislation is necessary. | 7 | | It will create a statewide program that diverts a significant | 8 | | portion of paint waste from landfills and facilitates | 9 | | recycling of leftover paint into paint and other products. | 10 | | (5) Establishing a paint stewardship program in Illinois | 11 | | will create jobs as the marketplace adjusts to the needs of a | 12 | | robust program that requires transporters and processors. | 13 | | Certain infrastructure already exists in the State and the | 14 | | program may attract additional resources. | 15 | | (6) Legislation is needed to establish this program in | 16 | | part because of the risk of antitrust lawsuits. The program | 17 | | involves activities by competitors in the paint industry and | 18 | | may affect the costs or prices of those competitors. As | 19 | | construed by the courts, the antitrust laws impose severe | 20 | | constraints on concerted action by competitors that affect | 21 | | costs or prices. Absent State legislation, participation in | 22 | | this program would entail an unacceptable risk of class action | 23 | | lawsuits. The risk can be mitigated by legislation that would | 24 | | bar application of federal antitrust law under the "state | 25 | | action" doctrine. Under that doctrine, federal antitrust law | 26 | | does not apply to conduct that is (1) undertaken pursuant to a |
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| 1 | | clearly expressed and affirmatively articulated state policy | 2 | | to displace or limit competition, and (2) actively supervised | 3 | | by the State.
| 4 | | (7) To ensure that this defense will be available to | 5 | | protect participants in the program, it is important for State | 6 | | legislation to be specific about the conduct it is authorizing | 7 | | and to express clearly that the State is authorizing that | 8 | | conduct pursuant to a conscious policy decision to limit the | 9 | | unfettered operation of market forces. It is also critical for | 10 | | the legislation to provide for active supervision of the | 11 | | conduct that might otherwise be subject to antitrust attack. | 12 | | In particular, the legislation must provide for active | 13 | | supervision of the decisions concerning the assessments that | 14 | | will fund the program. A clear articulation of the State's | 15 | | purposes and policies and provisions for active State | 16 | | supervision of the program will ensure that industry | 17 | | participation in the program will not trigger litigation. | 18 | | (8) To ensure that the costs of the program are | 19 | | distributed in an equitable and competitively neutral manner, | 20 | | the program will be funded through an assessment on each | 21 | | container of paint sold in this State. That assessment will be | 22 | | sufficient to recover, but not exceed, the costs of sustaining | 23 | | the program and will be reviewed and approved by the Illinois | 24 | | Environmental Protection Agency. Funds collected through the | 25 | | assessment will be used by the representative organization to | 26 | | operate and sustain the program.
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| 1 | | Section 10. Definitions. In this Section: | 2 | | "Agency" means the Environmental Protection Agency. | 3 | | "Architectural paint" means interior and exterior | 4 | | architectural coatings sold in containers of 5 gallons or | 5 | | less. "Architectural paint" does not include industrial | 6 | | original equipment or specialty coatings. | 7 | | "Collection site" means any location or event at which | 8 | | architectural paint is accepted into a postconsumer paint | 9 | | collection program pursuant to a postconsumer paint collection | 10 | | program plan. | 11 | | "Director" means the director of the Environmental | 12 | | Protection Agency. | 13 | | "Environmentally sound management practices" means | 14 | | procedures for the collection, storage, transportation, reuse, | 15 | | recycling, and disposal of architectural paint to be | 16 | | implemented by a manufacturer or representative organization | 17 | | or by the manufacturer's or representative organization's | 18 | | contracted partners to comply with all applicable federal, | 19 | | State, and local laws and any rules, regulations, and | 20 | | ordinances for the protection of human health and the | 21 | | environment. These procedures shall address adequate record | 22 | | keeping, tracking and documenting of the final disposition of | 23 | | materials, and appropriate environmental liability coverage | 24 | | for the representative organization. | 25 | | "Household waste" has the same meaning as defined in 40 |
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| 1 | | CFR 261.4(b)(1). | 2 | | "Postconsumer paint" means architectural paint not used | 3 | | and no longer wanted by a purchaser. | 4 | | "Manufacturer" means a manufacturer of architectural paint | 5 | | who sells, offers for sale, or distributes the architectural | 6 | | paint in the State under the manufacturer's own name or brand. | 7 | | "Program" means the postconsumer paint stewardship program | 8 | | established pursuant to Section 15. | 9 | | "Recycling" means a method, technique, or process designed | 10 | | to remove any contaminant from waste so as to render the waste | 11 | | reusable, or any process by which materials that would | 12 | | otherwise be disposed of or discarded are collected, | 13 | | separated, or processed and returned to the economic | 14 | | mainstream in the form of raw materials or products. | 15 | | "Representative organization" means a nonprofit | 16 | | organization established by a manufacturer to implement the | 17 | | postconsumer paint stewardship program. | 18 | | "Retailer" means a company that offers architectural paint | 19 | | or other allied products for retail sale in the State. | 20 | | "Very small quantity generator" has the same meaning as | 21 | | defined in 40 CFR 260.10.
| 22 | | Section 15. Paint stewardship program plan. | 23 | | (a) A manufacturer of architectural paint sold at retail | 24 | | in the State or a representative organization shall submit to | 25 | | the Director a plan for the establishment of a postconsumer |
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| 1 | | paint stewardship program. The program shall seek to reduce | 2 | | the generation of postconsumer paint, promote its reuse and | 3 | | recycling, and manage the waste stream using environmentally | 4 | | sound management practices. | 5 | | (b) The plan submitted by the manufacturer or | 6 | | representative organization to the Agency under this Section | 7 | | shall: | 8 | | (1) Provide a list of participating manufacturers and | 9 | | brands covered by the program. | 10 | | (2) Provide information on the architectural paint | 11 | | products covered under the program, such as interior or | 12 | | exterior water-based and oil-based coatings, primers, | 13 | | sealers, or wood coatings. | 14 | | (3) Describe how it will provide for convenient and | 15 | | cost-effective statewide collection of postconsumer | 16 | | architectural paint in the State. The manufacturer or | 17 | | representative organization may coordinate the program | 18 | | with existing household hazardous waste collection | 19 | | infrastructure as is mutually agreeable. A paint retailer | 20 | | may be authorized by the manufacturer or representative | 21 | | organization as a paint collection site if the paint | 22 | | retailer volunteers to act as such, complies with all | 23 | | applicable laws, rules, and regulations, and the retail | 24 | | location is consistent with the maintenance of a | 25 | | cost-effective network of paint collection locations. | 26 | | (4) Establish a goal for the number and geographic |
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| 1 | | distribution of collection sites for postconsumer | 2 | | architectural paint using geographic modeling and the | 3 | | following criteria: | 4 | | (A) at least 90% of State residents shall have a | 5 | | collection site within a 15-mile radius; and | 6 | | (B) one site shall be available for every 50,000 | 7 | | residents of an Urbanized Area, as defined by the U.S. | 8 | | Census Bureau, unless otherwise approved by the | 9 | | Director. | 10 | | (5) Describe how postconsumer paint will be managed in | 11 | | an environmentally and economically sound manner using the | 12 | | following strategies and in the following order: reuse, | 13 | | recycling, energy recovery, and disposal. Incineration | 14 | | within the State shall not be utilized.
| 15 | | (6) Describe education and outreach efforts to inform | 16 | | consumers about the program. These materials should | 17 | | include: | 18 | | (A) information about collection opportunities for | 19 | | postconsumer paint; | 20 | | (B) information about the fee for the operation of | 21 | | the program that shall be included in the purchase | 22 | | price of all architectural paint sold in the State; | 23 | | and | 24 | | (C) efforts to promote the source reduction, | 25 | | reuse, and recycling of architectural paint. | 26 | | (7) Be reviewed by an independent auditor to assure |
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| 1 | | that any added fee to paint sold in the State as a result | 2 | | of the postconsumer paint stewardship program does not | 3 | | exceed the costs to operate and sustain the program in | 4 | | accordance with sound management practices. The | 5 | | independent auditor shall verify that the amount added to | 6 | | each unit of paint will cover the costs and sustain the | 7 | | postconsumer paint stewardship program.
| 8 | | (c) A manufacturer or representative organization shall | 9 | | select the independent auditor under paragraph (7) of | 10 | | subsection (b) in consultation with the Agency. The Agency | 11 | | shall review the work product of the independent auditor. The | 12 | | cost of any work performed by the independent auditor shall be | 13 | | funded by the program. | 14 | | (d) Not later than 60 days after submission of the plan | 15 | | under this Section, the Director shall make a determination in | 16 | | writing whether to approve the plan as submitted or disapprove | 17 | | the plan. | 18 | | (e) The Agency shall enforce the plan and may, by rule or | 19 | | regulation, establish enforcement procedures. If circumstances | 20 | | require an adjustment of the paint stewardship fee, the | 21 | | manufacturer or representative organization shall request the | 22 | | adjustment by submitting to the Agency a justification for the | 23 | | adjustment as well as financial reports to support the | 24 | | request, including a 5-year projection of the financial status | 25 | | of the organization. The Agency shall review the request to | 26 | | determine if the proposed fee adjustment will generate |
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| 1 | | revenues sufficient to pay the program expenses, including any | 2 | | accumulated debt, and develop a reasonable reserve level | 3 | | sufficient to sustain the program. If a decrease in the paint | 4 | | fee is requested, the Agency shall review the request to | 5 | | determine if the proposed fee adjustment and the resulting | 6 | | decreased revenue is sufficient to pay program expenses and | 7 | | maintain a reasonable reserve level sufficient to sustain the | 8 | | program. | 9 | | (f) No later than the implementation date of the program, | 10 | | information regarding the approved plan, the names of | 11 | | participating manufacturers, and the brands of architectural | 12 | | paint covered by the program shall be posted on the Agency's | 13 | | website and on the website of the manufacturer or | 14 | | representative organization. | 15 | | (g) Upon implementation of the program, each manufacturer | 16 | | shall include in the price of any architectural paint sold to | 17 | | retailers and distributors in the State the per container | 18 | | amount in the approved program plan. Manufacturers are | 19 | | responsible for filing, reporting, and remitting the paint | 20 | | stewardship assessment for each container of architectural | 21 | | paint to the representative organization. A retailer or | 22 | | distributor shall not deduct this amount from the purchase | 23 | | price. | 24 | | Section 20. Incineration prohibited. No person may | 25 | | incinerate leftover architectural paint collected pursuant to |
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| 1 | | an approved paint stewardship plan as required by Section 15. | 2 | | Section 25. Plan submission. The plan required by Section | 3 | | 15 shall be submitted not later than 12 months after the | 4 | | authorization of the program is final. The Agency may grant an | 5 | | extension of time to submit the plan for good cause. | 6 | | Section 30. Sale of paint. | 7 | | (a) A manufacturer or retailer shall not sell or offer for | 8 | | sale architectural paint to any person in the State unless the | 9 | | manufacturer of a paint brand or the manufacturer's | 10 | | representative organization is implementing an approved paint | 11 | | stewardship plan as required by Section 15. | 12 | | (b) A retailer shall be in compliance with this Act if, on | 13 | | the date the architectural paint was offered for sale, the | 14 | | retailer's manufacturer is listed on the Agency's website as | 15 | | implementing or participating in an approved program or if the | 16 | | paint brand is listed on the Agency's website as being | 17 | | included in the program. | 18 | | (c) A paint collection site authorized under the | 19 | | provisions of this Act shall not charge any additional amount | 20 | | for the disposal of paint when it is offered for disposal. | 21 | | (d) No retailer is required to participate in a paint | 22 | | stewardship program as a collection site. A retailer may | 23 | | participate as a paint collection site on a voluntary basis. | 24 | | (e) Nothing in this Act shall require a retailer to track, |
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| 1 | | file, report, submit, or remit a paint stewardship assessment, | 2 | | sales data, or any other information on behalf of a | 3 | | manufacturer, distributor, or representative organization.
| 4 | | Section 35. Liability. A manufacturer or representative | 5 | | organization participating in a postconsumer paint stewardship | 6 | | program shall not be liable for any claim of a violation of | 7 | | antitrust, restraint of trade, unfair trade practice, or other | 8 | | anticompetitive conduct arising from conduct undertaken in | 9 | | accordance with the program. | 10 | | Section 40. Annual report. Annually, a manufacturer or | 11 | | representative organization shall submit a report to the | 12 | | Agency that details the program. The report shall include: | 13 | | (1) a description of the methods used to collect and | 14 | | transport postconsumer paint collected in the State; | 15 | | (2) the volume and type of postconsumer paint | 16 | | collected and a description of the methods used to process | 17 | | the paint, including reuse, recycling, and other methods; | 18 | | (3) samples of educational materials provided to | 19 | | consumers of architectural paint; and | 20 | | (4) the total cost of the program and an independent | 21 | | financial audit. An independent financial auditor shall be | 22 | | chosen by the manufacturer or representative organization. | 23 | | The report or information relating to the report shall be | 24 | | posted on the Agency's website and on the website of the |
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| 1 | | manufacturer or representative organization. | 2 | | Section 45. Annual report submission. A manufacturer or | 3 | | representative organization shall submit the first annual | 4 | | report detailing the postconsumer paint collection program as | 5 | | required by Section 15 to the Director within 14 months | 6 | | following implementation of the program, and annually | 7 | | thereafter. The Agency may extend the time for submission of | 8 | | the annual report for cause shown. | 9 | | Section 50. Disclosure. Financial, production, or sales | 10 | | data reported to the Agency by a manufacturer, retailer, or | 11 | | representative organization shall not be subject to | 12 | | disclosure, but the Director may release a summary form of the | 13 | | data that does not disclose financial, production, or sales | 14 | | data of the manufacturer, retailer, or representative | 15 | | organization.
| 16 | | Section 55. Program plan submission fee. A manufacturer or | 17 | | representative organization submitting a program plan shall | 18 | | pay an administrative fee to the Agency at the time of | 19 | | submission. The Agency may establish a variable fee based on | 20 | | relevant factors, including, but not limited to, the portion | 21 | | of architectural paint sold in the State by members of the | 22 | | manufacturer or representative organization compared to the | 23 | | total amount of architectural paint sold in the State by all |
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| 1 | | manufacturers or representative organizations that submit a | 2 | | plan. | 3 | | Section 60. Oversight fee. A manufacturer or | 4 | | representative organization operating a stewardship program | 5 | | shall pay to the Agency the costs it incurs in overseeing the | 6 | | stewardship program. The Agency shall set the fee at an amount | 7 | | that, when paid by every manufacturer or representative | 8 | | organization that submits a plan, is adequate to reimburse the | 9 | | Agency's full costs of administering this Act. The total | 10 | | amount of annual fees collected under this Section must not | 11 | | exceed the amount necessary to reimburse costs incurred by the | 12 | | Agency to administer this Act. | 13 | | Section 65. Timing of oversight fee. A manufacturer or | 14 | | representative organization subject to Section 60 must pay the | 15 | | Agency's administrative fee annually. Each year after the | 16 | | initial payment, the annual administrative fee may not exceed | 17 | | 5% of the aggregate stewardship fee added to the cost of all | 18 | | architectural paint sold by manufacturers in the State for the | 19 | | preceding calendar year. The Agency may extend the time for | 20 | | payment upon good cause shown. | 21 | | Section 70. Implementation. A manufacturer or | 22 | | representative organization shall implement the postconsumer | 23 | | paint collection plan within 6 months of the date that the |
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| 1 | | program plan is approved. The Agency may extend the date of | 2 | | implementation for good cause shown. | 3 | | Section 75. Postconsumer paint from households and small | 4 | | businesses. | 5 | | (a) Generators of household waste and very small quantity | 6 | | generators are authorized to transport or send their | 7 | | architectural paints to a paint collection site to the extent | 8 | | permitted by a postconsumer paint stewardship program approved | 9 | | by the Director. | 10 | | (b) Paint collection sites are authorized to collect and | 11 | | temporarily store architectural paints generated by persons | 12 | | specified in subsection (a), in accordance with the | 13 | | requirements of the paint stewardship program, in lieu of any | 14 | | otherwise applicable hazardous waste or solid waste laws, | 15 | | rules, or regulations. | 16 | | (c) Nothing in this Act shall be construed as restricting | 17 | | the collection of architectural paint by a postconsumer paint | 18 | | stewardship program where the collection is authorized under | 19 | | any otherwise applicable hazardous waste or solid waste laws, | 20 | | rules, or regulations. | 21 | | (d) Nothing in this Act shall be construed to affect any | 22 | | requirements applicable to facilities that treat, dispose, or | 23 | | recycle architectural paint under any otherwise applicable | 24 | | hazardous waste or solid waste laws, rules, or regulations.".
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