HOUSE BILL 135
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Karen E. Giannini
AN ACT
RELATING TO PAINT STEWARDSHIP; ENACTING THE SAFE PAINT STEWARDSHIP ACT; DIRECTING THE SECRETARY OF ENVIRONMENT TO CREATE AN ARCHITECTURAL PAINT STEWARDSHIP PILOT PROGRAM TO PROMOTE AND PROVIDE EDUCATION REGARDING ARCHITECTURAL PAINT WASTE PREVENTION, REUSE AND RECYCLING; CREATING THE SAFE PAINT STEWARDSHIP FUND; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Safe Paint Stewardship Act".
Section 2. DEFINITIONS.--As used in the Safe Paint Stewardship Act:
A. "architectural paint" means interior and exterior architectural coatings sold in containers of five gallons or less and excludes industrial, original equipment or specialty coatings;
B. "department" means the department of environment;
C. "distributor" means a person that has a contractual relationship with one or more producers to market and sell architectural paint to retailers in the state;
D. "energy recovery" means recovery in which all or a part of the solid waste materials of architectural paint are processed to use the heat content or other forms of energy from the solid waste materials;
E. "post-consumer architectural paint" means architectural paint not used and no longer wanted by its purchaser;
F. "producer" means a person that manufactures architectural paint, which is sold or offered for sale in the state;
G. "recycling" means a process by which discarded products, components and byproducts are transformed into new usable or marketable materials in a manner in which the products may lose their original composition; "recycling" does not include energy recovery or energy generation by means of combusting discarded products, components and byproducts with or without other waste products from post-consumer architectural paint;
H. "retailer" means a person that sells or offers for sale architectural paint at retail in the state;
I. "reuse" means the return of a product into the economic stream for use in the same kind of application intended for the use of the product, without a change in the product's original composition;
J. "secretary" means the secretary of environment;
K. "sell" or "sale" means a transfer of title for consideration, including remote sales conducted through sales outlets, catalogs or the internet or through any other similar electronic means;
L. "sound management practices" means policies that a producer or a stewardship organization implements to ensure compliance with applicable law and regulation; and
M. "stewardship organization" means a person created by a producer or group of producers to implement the architectural paint stewardship pilot program described in the Safe Paint Stewardship Act.
Section 3. ARCHITECTURAL PAINT STEWARDSHIP PILOT PROGRAM--PARTICIPATION.--
A. The secretary shall create a statewide architectural paint stewardship pilot program designed to promote and provide education regarding architectural paint waste prevention, reuse and recycling. The secretary shall appoint a stewardship organization to implement the pilot program and shall oversee the stewardship organization in:
(1) tracking and documenting the use, reuse or disposal of post-consumer architectural paint within and outside the state;
(2) recordkeeping that meets the pilot program specifications pursuant to department regulations; and
(3) providing environmental liability coverage for professional services and for the operations of contractors working for producers or the stewardship organization that meets the specifications set forth in department regulations.
B. The department shall establish a uniform architectural paint stewardship assessment for all architectural paint sold in the state. The architectural paint stewardship assessment shall:
(1) be added to the cost of all architectural paint sold to New Mexico retailers and distributors;
(2) be added by each New Mexico retailer or distributor to the purchase price of all architectural paint sold in the state;
(3) be approved by the secretary of environment as part of the plan pursuant to Subsection C of this section;
(4) be sufficient to recover, but not exceed, the costs of the architectural paint stewardship pilot program; and
(5) not be a recycling fee at the point of retail.
C. No later than March 1, 2011, a stewardship organization shall submit a plan for a statewide architectural paint stewardship pilot program to the secretary of environment for approval. The plan shall:
(1) provide for convenient and available statewide collection of post-consumer architectural paint in urban and rural areas of the state;
(2) identify each producer participating in the program and the brands of architectural paint sold by each producer; and
(3) include a funding mechanism whereby each architectural paint producer remits to the stewardship organization payment of an architectural paint stewardship assessment for each container of architectural paint the producer sells in this state.
D. By July 1, 2011, or two months after the secretary approves the plan pursuant to Subsection A of this section, whichever occurs first, the stewardship organization shall:
(1) implement the architectural paint stewardship pilot program it described in its plan;
(2) provide for the development and implementation of strategies to reduce the generation of post-consumer architectural paint; and
(3) promote the reuse of post-consumer architectural paint and undertake the responsibility of negotiating and executing contracts to collect, transport, recycle and process post-consumer architectural paint for end-of-product-life management that includes recycling, energy recovery and disposal using sound management practices.
E. In implementing the architectural paint stewardship pilot program, the stewardship organization shall:
(1) promote the architectural paint stewardship pilot program;
(2) provide consumers with educational materials describing collection opportunities for post-consumer architectural paint and information promoting waste prevention, reuse and recycling of architectural paint; and
(3) inform consumers that an assessment to be used for funding the operation of the architectural paint stewardship pilot program has been added to the purchase price of all architectural paint sold in the state.
Section 4. MANDATORY PRODUCER AND RETAILER PARTICIPATION--
INFORMATION TO CONSUMER--BAN ON FEES TO CONSUMERS.--
A. A producer or retailer shall not sell or offer for sale architectural paint in the state unless the producer is participating in the architectural paint stewardship pilot program that the secretary has approved pursuant to Section 3 of the Safe Paint Stewardship Act. A retailer is in compliance with this section if, on the date the retailer orders architectural paint from the producer or its agent, a web site that the department of environment maintains lists the producer, along with the producer's product brand, as participating in an architectural paint stewardship pilot program.
B. At the time of sale to a consumer, a producer or retailer selling or offering for sale architectural paint shall provide the consumer with information regarding available end-of-product-life management options offered through the architectural paint stewardship pilot program.
C. No fee or assessment shall be charged to the consumer at the point of collection of post-consumer architectural paint.
Section 5. DEPARTMENT OF ENVIRONMENT OVERSIGHT--RULEMAKING--PRODUCER PARTICIPATION LIST.--
A. The department shall oversee the implementation of the architectural paint stewardship pilot program that the secretary has approved pursuant to Section 3 of the Safe Paint Stewardship Act consistently with the provisions of the Safe Paint Stewardship Act and the rules that the secretary promulgates pursuant to that act.
B. The secretary shall promulgate rules to implement the pilot program and to oversee payments that the producers make to the stewardship organization for the architectural paint stewardship assessment specified in Subsection B of Section 3 of the Safe Paint Stewardship Act.
C. The department shall create on its web site a list of producers and the producers' product brands and indicate whether a producer is participating in the architectural paint stewardship pilot program.
Section 6. REPORTING TO THE SECRETARY OF ENVIRONMENT--REPORTING TO THE LEGISLATURE.--
A. No later than September 1, 2012, and by September 1 of each subsequent year, the stewardship organization implementing the architectural paint stewardship pilot program that the secretary has approved pursuant to Section 3 of the Safe Paint Stewardship Act shall submit a report to the secretary describing the pilot program. At a minimum, the report shall include:
(1) a description of the methods used to collect, transport, recycle and process post-consumer architectural paint in the state;
(2) the volume and type of post-consumer architectural paint collected in all regions of the state;
(3) the volume of post-consumer architectural paint collected in the state, by method of disposition, including reuse, recycling, energy recovery and disposal;
(4) an independent financial audit of the program;
(5) a description of program costs;
(6) an evaluation of the operation of the assessment;
(7) samples of educational materials provided to consumers of architectural paint, an evaluation of the methods used to disseminate those materials and an assessment of the effectiveness of the education and outreach, including levels of waste prevention and reuse; and
(8) an analysis of the environmental costs and benefits of collecting and recycling paint.
B. No later than October 1, 2012, the secretary shall submit a report to the appropriate committees of the legislature and provide the results of the architectural paint stewardship pilot program. The secretary shall recommend whether the pilot program should be made permanent and any modifications necessary to improve its functioning and efficiency. The report must include an accounting of the administrative fees paid by the producers to the department pursuant to Section 7 of the Safe Paint Stewardship Act.
Section 7. ADMINISTRATIVE FEES--COLLECTION BY DEPARTMENT OF ENVIRONMENT.--
A. The department may charge, for administering the architectural paint stewardship pilot program, the stewardship organization that implements the pilot program the following fees:
(1) ten thousand dollars ($10,000) when the plan specified in Section 3 of the Safe Paint Stewardship Act is submitted to the department; and
(2) ten thousand dollars ($10,000) each year thereafter.
B. The department may establish a schedule of fees in lieu of the fees specified in Subsection A of this section that is based on an average of the results of the financial audits made pursuant to Section 6 of the Safe Paint Stewardship Act that do not exceed five hundredths of one percent of the average architectural paint stewardship pilot program costs reported in the financial audits.
C. Fees collected by the department under this section shall be deposited in the safe paint stewardship fund established pursuant to Section 8 of the Safe Paint Stewardship Act.
Section 8. SAFE PAINT STEWARDSHIP FUND--CREATION--
DISTRIBUTION.--
A. There is created in the state treasury a fund to be known as the "safe paint stewardship fund". The department shall administer the fund and make grants from the fund in accordance with the Safe Paint Stewardship Act. Earnings on balances in the fund shall be credited to the fund. Money remaining in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the credit of the safe paint stewardship fund. Money in the fund is appropriated to the department for the implementation of the provisions of the Safe Paint Stewardship Act.
B. Any money remaining in the safe paint stewardship fund on June 30, 2014, shall be transferred to the general fund.
Section 9. ENFORCEMENT.--The attorney general shall enforce the provisions of the Safe Paint Stewardship Act.
Section 10. DELAYED REPEAL.--The provisions of the Safe Paint Stewardship Act are repealed on June 30, 2014.
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