N.Y. Environmental Conservation Law § 27-2003: Postconsumer paint collection program

§ 27-2003. Postconsumer paint collection program.

1. No later than July first, two thousand twenty, a producer, either

individually or cooperatively, or a representative organization shall

submit to the department for the department's approval a plan for the

establishment of a postconsumer paint collection program. Such plan

shall be accompanied by a fee of five thousand dollars for an individual

producer or, in the case of a representative organization or producers

acting collectively, a fee of ten thousand dollars. The program will

minimize public sector involvement in the management of postconsumer

paint by reducing its generation, promoting its reuse and recycling and

negotiating and executing agreements to collect, transport, reuse,

recycle and properly dispose of postconsumer paint using environmentally

sound management practices.

2. A producer may satisfy the postconsumer paint collection program

requirement of this section by agreeing to participate collectively with

other producers. Any such collective postconsumer paint collection

program shall meet the same requirements as an individual producer. Such

program shall submit a registration to the department along with a

registration fee of ten thousand dollars.

3. The plan submitted by the producer or representative organization

to the department under this section shall:

(a) provide a list of each participating producer and brands covered

by the program.

(b) provide information on the architectural paint products covered

under the program.

(c) describe how the producer or representative organization will

collect, transport, recycle, and process postconsumer paint for

end-of-life management, including recycling and disposal, using

environmentally sound management practices.

(d) describe how it will provide for convenient and cost-effective

statewide collection of postconsumer paint in the state. The producer or

representative organization may coordinate the program with existing

municipal waste collection infrastructure as is mutually agreeable. A

paint retailer may participate, on a voluntary basis, as a paint

collection site if the paint retailer volunteers to act as such and

complies with all applicable laws and regulations.

(e) provide geographic modeling to determine the number and

distribution of sites for collection of postconsumer paint based on the

following criteria (i) at least ninety percent of New York residents

shall have a collection site within a fifteen mile radius; and (ii) one

additional collection site will be established for every fifty thousand

residents of an urbanized area (as defined by the United States Census

Bureau), unless the producer is a small business taxpayer as defined in

paragraph (f) of subdivision one of section two hundred ten of the tax

law or unless otherwise approved by the commissioner.

(f) describe the intended treatment, storage, transportation and

disposal options and methods for the collection of postconsumer paint.

The management of paint under the program shall promote reuse and

recycling.

(g) describe in detail education and outreach efforts to inform

consumers and retailers about the program. These materials should

include (i) information about collection opportunities for postconsumer

paint; (ii) information about the charge for the operation of the

program that shall be included by the producer in the price charged to

the retailer of all architectural paint sold in the state; and (iii)

efforts to promote the source reduction, reuse, and recycling of

architectural paint.

(h) set forth the process by which an independent financial auditor

will be selected and identify the criteria used by the producer or

representative organization in selecting an independent auditor.

(i) identify, in detail, the operational plans for interacting with

retailers on the proper handling and management of postconsumer paint.

(j) include the targeted annual collection rate.

(k) be reviewed by an independent financial auditor to assure that any

added cost to paint sold in the state as a result of the postconsumer

paint collection program does not exceed the costs of the program. The

independent auditor shall verify that the amount added to each unit of

paint will cover the costs of the postconsumer paint collection program.

4. The independent financial auditor may be selected by the department

and the department shall review the work product of any such independent

auditor. The department may terminate the services of any such

independent auditor. The cost of any work performed by such independent

auditor shall be funded by the program.

5. The department shall approve or reject a plan submitted under this

section within sixty days of submission and, if rejected, inform the

producer or representative organization in writing as to any

deficiencies in said plan. A producer or representative organization

shall amend and resubmit any rejected plans for reconsideration within

sixty days of notification of the rejection of said plan. The department

shall approve or reject said plan within thirty days of resubmission.

6. Beginning not later than January first, two thousand twenty-one or

six months after the plan is approved under subdivision five of this

section, whichever occurs later, the producer or representative

organization shall implement the postconsumer paint collection program

utilizing collection sites established pursuant to paragraph (e) of

subdivision three of this section.

7. Not later than the implementation date of the program, information

regarding the approved plan, the names of participating producers, and

the brands of architectural paint covered by the program shall be posted

on the department's website and on the website of the producer and

representative organization.

8. Upon implementation of the program, each producer shall include in

the price of any architectural paint sold to retailers and distributors

in the state the per container amount in the approved program plan. A

retailer or distributor shall not deduct this amount from the purchase

price.

9. A producer or retailer shall not sell, or offer for sale,

architectural paint to any person in the state unless the producer and

the producer's brands are registered with the department pursuant to

section 27-2003 of this title on and after the date of implementation of

the postconsumer paint collection program.

10. (a) A retailer shall be in compliance with this section if, on the

date the architectural paint was offered for sale, the producer is

listed on the department's website as implementing or participating in

an approved program or if the paint brand is listed on the department's

website as being included in the program.

(b) A paint collection site authorized under the provisions of this

section shall not charge any additional amount for the disposal of paint

when it is offered for disposal.

11. (a) A producer or the representative organization that organizes

the collection, transport and processing of postconsumer paint, in an

action solely to increase the recycling of architectural paint by a

producer, representative organization, or retailer that affects the

types and quantities being recycled or the cost and structure of any

return program shall not be liable for any claim of a violation of

antitrust, restraint of trade or unfair trade practice arising from

conduct undertaken in accordance with the program pursuant to this

section.

(b) Provided however, paragraph (a) of this subdivision shall not

apply to any agreement establishing or affecting the price of paint

except for the postconsumer paint collection assessment or the output or

production of paint or any agreement restricting the geographic area or

customers to which paint will be sold.

12. The operator of the postconsumer paint collection program shall

update the plan, as needed, when there are changes proposed to the

current program. A new plan or amendment will be required to be

submitted to the department for approval when:

(a) there is an addition to the products covered under the program; or

(b) there is a revision of the program's goals; or

(c) every four years from the date of approval of a previous plan.

The operator of the postconsumer paint collection program shall notify

the department annually, in writing, if there are no changes proposed to

the program and the producer or representative organization intends to

continue implementation of the program as previously approved by the

department.

13. Any person who becomes a producer after July first, two thousand

twenty shall submit a plan to the department prior to selling or

offering for sale in the state any architectural paint, and must comply

with the requirements of this title.