BILL ANALYSIS
AB 1343
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 1343
AUTHOR: Huffman
AMENDED: June 24, 2009
FISCAL: Yes HEARING DATE: July 6, 2009
URGENCY: No CONSULTANT: Caroll
Mortensen
SUBJECT : ARCHITECTURAL PAINT RECYCLING PROGRAM
SUMMARY :
Existing law :
1)Establishes the Mercury Thermostat Collection Act of 2008
that sets forth a program for manufacturers of
mercury-containing thermostats to manage the waste
thermostats. (Health and Safety Code 25214.8.10 et seq.).
2)Requires every retailer of cell phones sold in this state
shall have in place a system for the acceptance and
collection of used cell phones for reuse, recycling, or
proper disposal. (Public Resources Code 42494).
3)Establishes the Rechargeable Battery Recycling Act of 2006
that requires every retailer to have in place a system for
the acceptance and collection of used rechargeable batteries
for reuse, recycling, or proper disposal (PRC 42453).
4)Establishes the Electronic Waste Recycling Act, overseen by
the Integrated Waste Management Board (IWMB) in partnership
with the Department of Toxic Substances Control (DTSC), to
collect and recycle electronic waste (PRC 42460 et seq. and
Health and Safety Code 25214.10 et seq.).
5)Prohibits the disposal of liquid latex paint in the land or
into the waters of the state unless authorized by applicable
provisions of law. (Health and Safety Code 25217.1).
6)Allows for management, storage and transportation of latex
paint for recycling as described. (Health and Safety Code
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25217.3 and 25217).
7)Prohibits the disposal of hazardous waste, including most
oil-based paints, in a solid waste landfill.
8)Authorizes the Air Resources Board and local air districts
to adopt and enforce rules regarding architectural paints or
coatings, including achieving a feasible reduction in
volatile organic compounds emitted by the architectural
paint or coating. (Health and Safety Code 40916).
9)Requires state agencies to use recycled latex paint with at
least 50% postconsumer recycled content. (Public Contract
Code 12209).
This bill :
1) Makes findings and declarations regarding the management of
post consumer architectural paint.
2) Establishes the Architectural Paint Recovery Program
(Program) and states the purpose of the program is to
require paint manufacturers to develop and implement a
program to manage paint and reduce the costs and
environmental impacts of postconsumer paint in California.
3) Requires manufacturers of architectural paint,
individually or through a stewardship organization, submit
an architectural paint stewardship plan to the IWMB to
develop and implement a recovery program to reduce the
generation of postconsumer architectural paint, promote the
reuse of postconsumer architectural paint, and manage the
end-of-life of postconsumer architectural paint, in an
environmentally sound fashion, including collection,
transportation, processing, and disposal.
4) Prohibits manufacturers or retailers from selling
architectural paint in this state unless the manufacturer
is in compliance with the new chapter.
5) Requires the IWMB, on July 1, 2011, and on January 1 and
July 1 annually thereafter, to post a notice on its
Internet Web site listing manufacturers that are not in
compliance with this chapter and requires a wholesaler or a
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retailer that distributes or sells architectural paint
shall monitor the IWMB's Web site to determine if the sale
of a manufacturer's architectural paint is in compliance
with this chapter.
6) Requires, on or before January 1, 2011, a manufacturer or
designated stewardship organization shall submit an
architectural paint stewardship plan to the IWMB. The plan
shall:
a) Demonstrate sufficient funding for the architectural
paint stewardship program as described in the plan,
including a funding mechanism for securing and
dispersing funds to cover administrative, operational,
and capital costs, including the assessment of charges
on architectural paint sold by manufacturers in this
state.
i) The funding mechanism shall provide for an
architectural paint stewardship assessment for each
container of architectural paint sold by
manufacturers in this state and the assessment
shall be remitted to the stewardship organization,
if applicable.
ii) The architectural paint stewardship
assessment shall be added to the cost of all
architectural paint sold to California retailers
and distributors, and each California retailer or
distributor shall add the assessment to the
purchase price of all architectural paint sold in
the state.
iii) The architectural paint stewardship
assessment shall be approved by the board as part
of the plan, and shall be sufficient to recover,
but not exceed, the cost of the architectural paint
stewardship program.
b) Address the coordination of the architectural paint
stewardship program with local household hazardous waste
programs, including contracting for the costs for
architectural paint collected by the household hazardous
waste programs, where practical.
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c) Include consumer, contractor, and retailer education
and outreach efforts to promote the source reduction and
recycling of architectural paint. This information may
include, but is not limited to, developing, and updating
as necessary, educational and other outreach materials
aimed at retailers of architectural paint. These
materials shall be made available to the retailers.
7) Requires, on or before July 1, 2011, or two months after a
plan is approved, the manufacturer or stewardship
organization to implement the architectural paint
stewardship program described in the approved plan.
8) Requires the IWMB to review and approve the architectural
paint stewardship plan within 90 days of receipt. A plan
not acted upon by the board within 90 days shall be deemed
adopted.
9) Requires, by July 1, 2012, and each year thereafter, a
manufacturer of architectural paint sold in this state
shall, individually or through a representative stewardship
organization, submit a report to the IWMB describing its
architectural paint recovery efforts. At a minimum, the
report shall include all of the following:
a) The total volume of architectural paint sold in this
state during the preceding calendar year.
b) The total volume of postconsumer architectural paint
recovered in this state during the preceding calendar
year.
c) A description of methods used to collect, transport,
and process postconsumer architectural paint in this
state.
d) The total cost of implementing the architectural
paint stewardship program.
e) An evaluation of how the architectural paint
stewardship program's funding mechanism operated.
f) Examples of educational materials that were provided
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to consumers the first year and any changes to those
materials in subsequent years.
10)Requires the IWMB to review the annual report required
within 90 days of receipt shall adopt a finding of
compliance or noncompliance with the provisions of this
chapter and to enforce this chapter. The board shall
enforce this chapter.
11)The stewardship organization shall pay the board
administrative fees in the amount of ____ dollars ($____)
when the plan is submitted for review and approval and
thereafter an annual administrative fee of 0.05 percent of
the architectural paint stewardship program costs as
reported in the plan.
12)Establishes that a civil penalty may be administratively
imposed by the IWMB on any person who violates this chapter
in an amount of one thousand dollars ($1,000) for each
violation and for any person who intentionally, knowingly,
or negligently violates this chapter may be assessed a
civil penalty by the IWMB of up to ten thousand dollars
($10,000) for each violation.
13)Requires any penalties collected by the board shall be used
to offset the cost of the review and approval architectural
paint stewardship plans and annual reports and of
enforcement activities.
14)States that any action taken by a manufacturer or
representative stewardship organization regarding the cost
recovery system or the collecting, transporting, or
processing of postconsumer architectural paint, pursuant to
the requirements of this chapter and only to the extent
necessary to plan and implement the cost recovery system,
collection system, or recycling system, is not a violation
of the Cartwright Act (Chapter 2 (commencing with Section
16700) of Part 2 of Division 7 of the Business and
Professions Code), the Unfair Practices Act (Chapter 4
(commencing with Section 17000) of Part 2 of Division 7 of
the Business and Professions Code), or any other state law
relating to antitrust, regulation of trade, or regulation
of commerce.
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COMMENTS :
1) Purpose of Bill . According to the author, there has been
an on-going debate on how to better manage postconsumer
paint since 1989 when the IWMB heard an item before them on
options to fund a collection and management system. There
has also been a national dialogue underway since 2002. To
date, these dialogues have not resulted in any paint
collection or financial relief to local jurisdictions.
2) Background . Both latex and oil-based paints are considered
hazardous waste in California, making their disposal in a
solid waste landfill prohibited. Paint contains resins,
solvents, pigments, and additives. While latex paint is
less hazardous than oil-based, its ingredients are
hazardous to public health and the environment. Paint
should not be allowed to "dry out" for disposal, or poured
down storm drains or into the sewer system. According to
IWMB, postconsumer paint is the largest source of household
hazardous waste (HHW) in California. In the 2007-2008
fiscal year, 2.4 million gallons of postconsumer paint was
collected, comprising 29% of HHW. Management of this paint
costs local governments approximately $6-8 per gallon, for
a total estimated cost of $14-18 million annually.
According to the author, only 5% of households in
California use local HHW programs.
3) Paint Product Stewardship Initiative . In 2003, the Paint
Product Stewardship Initiative (PPSI), organized by the
Product Stewardship Institute, began facilitating a
national dialogue to reduce the generation of postconsumer
paint, while increasing reuse and recycling opportunities.
In 2007, PPSI extended an existing agreement among paint
manufacturers, government agencies, recyclers, contractors,
and other interested parties to establish an
industry-funded paint stewardship organization that will
collect and manage postconsumer paint using a
"pass-through" cost to consumers. This agreement is known
as the 2nd Paint Memorandum of Understanding (MOU) and
supports the continuation of the PPSI for another 3 years
(from November 1, 2007 to November 1, 2010) in order to
develop a new nationally-coordinated system for the
management of postconsumer architectural paint.
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According to the PPSI, as part of this MOU, a state-wide
"Demonstration Project" is underway in the state of
Minnesota to work through critical issues and gather
information that will be needed to develop a "functional,
fully funded, environmentally sound, and cost-effective
nationally coordinated leftover paint management system."
At the end of the Demonstration Project, the nationally
coordinated system is to be implemented in the rest of the
United States according to a phased implementation schedule
(California is due for a roll-out of a program in 2010).
Legislation was introduced in Minnesota jointly by government,
retailers, and manufacturers that addresses anti-trust
concerns, levels the playing field for manufacturers, and
clarifies the financing system. That bill in Minnesota, SF
0477, that established a very similar program as the one in
AB 1343 was vetoed by the Minnesota Governor on May 19,
2009.
4) Product Stewardship / Extended Producer Responsibility .
According to the IWMB, product stewardship or extended
producer responsibility (EPR) are terms used to describe
strategies to place a shared responsibility for end-of-life
product management on the producers, and all entities
involved in the product chain, instead of the general
public; while encouraging product design changes that
minimize a negative impact on human health and the
environment at every stage of the product's lifecycle.
This allows the costs of treatment and disposal to be
incorporated into the total cost of a product. It places
primary responsibility on the producer, or brand owner, who
makes design and marketing decisions. It also creates a
setting for markets to emerge that truly reflect the
environmental impacts of a product, and to which producers
and consumers respond. At its January 2008 board meeting,
IWMB adopted a revised "Overall Framework for an EPR System
in California," which called for establishing an EPR system
through statute and subsequent regulations. IWMB's EPR
Framework was developed and adopted after two years of
public workshops and meetings with local governments,
legislative members, retailers, and producers. Similarly,
the League of California Cities, California State
Association of Counties, and the Regional Council of Rural
Counties each have all adopted EPR policy supporting the
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IWMB's general framework approach.
This bill presents a hybrid product stewardship approach to
manage postconsumer paint. With the pass-through of the
paint stewardship assessment, it is not a 'true' product
stewardship approach.
5) Amendments Needed . The bill should be amended to:
a) Include performance goals as an element of the plan,
and the subsequent reports, to require manufacturers to
develop recovery targets and measurement tools as an
indicator of the plan's success.
b) Clarify that spray paint is not included in this
bill.
c) Add a provision that would allow manufacturers to
obtain a certification letter from the IWMB to
demonstrate if they can demonstrate compliance with the
provisions of the bill for the period of time between
the required postings every January and July by the IWMB
of non-compliant manufacturers.
d) Remove the provisions related to anti-trust and trade
issues on page 9, lines 34-40 and page 10, lines 1-5 and
allow the author to find another approach to address
these issues.
6) Related Legislation . AB 283 (Chesbro) creates the
California Product Stewardship Act to establish an EPR
framework that encourages producers to be comprehensively
responsible for the life cycle of their products. This
bill is in the Assembly Appropriations Committee.
SOURCE : Californians Against Waste
SUPPORT : Ace Hardware
California Paint Council
California Product Stewardship Council
California Retailers Association
Central Contra Costa Sanitary District
City of Cupertino
City of San Diego
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City and County of San Francisco
City of Sunnyvale
County of Tuolumne
Diamond Vogel Paint Company
Dunn-Edwards Corporation
Ecology Action of Santa Cruz
Humboldt Waste Management Authority
Kelly-Moore Paint Co., Inc.
National Paint and Coatings Association
Marin County Hazardous and Solid Waste
Management Joint
Powers Authority
PPG Architectural Finishes, Inc.
San Luis Obispo County Integrated Waste
Management
Authority
Santa Clara County Board of Supervisors
Sierra Club California
Solid Waste Association of North America
Sonoma County Waste Management Agency
Waste Management
West Contra Costa Integrated Waste Authority
OPPOSITION : None on file