75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 3037
Sponsored by COMMITTEE ON SUSTAINABILITY AND ECONOMIC DEVELOPMENT
CHAPTER ................
AN ACT
Relating to paint stewardship; appropriating money; and declaring
an emergency.
The Legislative Assembly finds that an architectural paint
stewardship pilot program would allow paint manufacturers to:
(1) Establish an environmentally sound and cost-effective
architectural paint stewardship program;
(2) Undertake responsibility for the development and
implementation of strategies to reduce the generation of
post-consumer architectural paint;
(3) Promote the reuse of post-consumer architectural paint; and
(4) Collect, transport and process post-consumer architectural
paint for end-of-product-life management.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Findings. The Legislative Assembly finds that
it is in the best interest of this state for architectural paint
manufacturers to finance and manage an environmentally sound,
cost-effective architectural paint stewardship pilot program,
undertaking responsibility for the development and implementation
of strategies to reduce the generation of post-consumer
architectural paint, promote the reuse of post-consumer
architectural paint and collect, transport and process
post-consumer architectural paint for end-of-product-life
management, including reuse, recycling, energy recovery and
disposal. + }
SECTION 2. { + Definitions. As used in sections 1 to 10 of
this 2009 Act:
(1)(a) 'Architectural paint' means interior and exterior
architectural coatings sold in containers of five gallons or
less.
(b) 'Architectural paint' does not mean industrial, original
equipment or specialty coatings.
(2) 'Architectural paint stewardship assessment' means the
amount added to the purchase price of architectural paint sold in
this state necessary to cover the cost of collecting,
transporting and processing the post-consumer architectural paint
managed through a statewide architectural paint stewardship pilot
program.
(3) '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.
(4) 'Energy recovery' means recovery in which all or a part of
the solid waste materials of architectural paint are processed to
Enrolled House Bill 3037 (HB 3037-A) Page 1
use the heat content or other forms of energy from the solid
waste materials.
(5) 'Post-consumer architectural paint' means architectural
paint not used and no longer wanted by its purchaser.
(6) 'Producer' means a person that manufactures architectural
paint that is sold or offered for sale in this state.
(7)(a) 'Recycling' means any process by which discarded
products, components and by-products are transformed into new
usable or marketable materials in a manner in which the products
may lose their original composition.
(b) 'Recycling' does not include energy recovery or energy
generation by means of combusting discarded products, components
and by-products with or without other waste products from
post-consumer architectural paint.
(8) 'Retailer' means any person that sells or offers for sale
architectural paint at retail in this state.
(9) '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.
(10) 'Sell' or 'sale' means any transfer of title for
consideration, including remote sales conducted through sales
outlets, catalogs or the Internet or through any other similar
electronic means.
(11) 'Sound management practices' means policies to be
implemented by a producer or a stewardship organization to ensure
compliance with all applicable laws and that address:
(a) Adequate record keeping;
(b) The tracking and documentation of the use, reuse or
disposal of post-consumer architectural paint within this state
and outside this state; and
(c) Adequate environmental liability coverage for professional
services and for the operations of contractors working for
producers or a stewardship organization.
(12) 'Stewardship organization' means a corporation, nonprofit
organization or other legal entity created by a producer or group
of producers to implement the architectural paint stewardship
pilot program described in sections 1 to 10 of this 2009 Act. + }
SECTION 3. { + Participation in architectural paint
stewardship pilot program. (1) A producer or retailer may not
sell or offer for sale architectural paint to any person in this
state unless the producer is participating in a statewide
architectural paint stewardship pilot program organized by a
stewardship organization. A retailer is in compliance with this
section if, on the date the architectural paint was ordered from
the producer or its agent, the website maintained by the
Department of Environmental Quality lists the producer, along
with the producer's product brand, as participating in an
architectural paint stewardship pilot program.
(2) At the time of sale to a consumer, a producer or retailer
selling or offering for sale architectural paint must provide the
consumer with information on available end-of-product-life
management options offered through an architectural paint
stewardship pilot program. + }
SECTION 4. { + Architectural paint stewardship pilot program.
(1) No later than March 1, 2010, a stewardship organization must
submit a plan for a statewide architectural paint stewardship
pilot program to the Director of the Department of Environmental
Quality for approval.
(2) The plan must:
Enrolled House Bill 3037 (HB 3037-A) Page 2
(a) Provide for convenient and available statewide collection
of post-consumer architectural paint in urban and rural areas of
this state;
(b) Identify each producer participating in the program and the
brands of architectural paint sold by each producer; and
(c) 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. The
architectural paint stewardship assessment must be added to the
cost of all architectural paint sold to Oregon retailers and
distributors, and each Oregon retailer or distributor shall add
the assessment to the purchase price of all architectural paint
sold in this state. The architectural paint stewardship
assessment may not be described as an Oregon recycling fee at the
point of retail, and a fee may not be charged to the consumer at
the point of collection of post-consumer architectural paint. To
ensure that the funding mechanism is equitable and sustainable, a
uniform architectural paint stewardship assessment must be
established for all architectural paint sold in this state. The
architectural paint stewardship assessment must be approved by
the director as part of the plan and must be sufficient to
recover, but not exceed, the costs of the architectural paint
stewardship pilot program.
(3) Beginning no later than July 1, 2010, or two months after
the plan is approved under subsection (1) of this section,
whichever occurs first, the stewardship organization must:
(a) Implement an architectural paint stewardship pilot program
described in the plan;
(b) Provide for the development and implementation of
strategies to reduce the generation of post-consumer
architectural paint; and
(c) 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.
(4) A stewardship organization shall promote the architectural
paint stewardship pilot program and provide consumers with
educational materials describing collection opportunities for
post-consumer architectural paint and information promoting waste
prevention, reuse and recycling. The educational materials must
also make consumers aware that funding for the operation of the
architectural paint stewardship pilot program has been added to
the purchase price of all architectural paint sold in this
state. + }
SECTION 5. { + Conduct authorized. (1) It is the intent of
this section that a stewardship organization operating an
architectural paint stewardship pilot program pursuant to
sections 1 to 10 of this 2009 Act, approved by the Department of
Environmental Quality and subject to the regulatory supervision
of the department, is granted immunity from federal and state
antitrust laws for the limited purpose of establishing and
operating an architectural paint stewardship pilot program. The
activities of the stewardship organization that comply with the
provisions of this section may not be considered to be in
restraint of trade, a conspiracy or combination or any other
unlawful activity in violation of any provisions of ORS 646.705
to 646.826 or federal antitrust laws.
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(2) The department shall actively supervise the conduct of the
stewardship organization, including but not limited to conduct
related to payments made by architectural paint producers to the
stewardship organization for the architectural paint stewardship
assessment specified in section 4 of this 2009 Act. The
department may require the stewardship organization to take
whatever action the department considers necessary to:
(a) Ensure that the stewardship organization is engaging in
conduct authorized under this section;
(b) Ensure that the policies of this state are being fulfilled
by an architectural paint stewardship pilot program; and
(c) Enjoin conduct that is not authorized by the department or
conduct that the department finds does not advance the interests
of this state in carrying out the architectural paint stewardship
pilot program.
(3) The Director of the Department of Environmental Quality may
designate employees of the department to carry out the
responsibility of actively supervising the conduct of the
stewardship organization.
(4) The Environmental Quality Commission may adopt rules to
carry out the purposes of this section. + }
SECTION 6. { + Reports. No later than September 1, 2011, and
by September 1 of each subsequent year, a stewardship
organization must submit a report to the Director of the
Department of Environmental Quality describing the architectural
paint stewardship pilot program approved by the director under
section 4 of this 2009 Act. At a minimum, the report must
contain:
(1) A description of the methods used to collect, transport,
recycle and process post-consumer architectural paint in this
state;
(2) The volume and type of post-consumer architectural paint
collected in all regions of this state;
(3) The volume of post-consumer architectural paint collected
in this 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 program's funding
mechanism;
(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 latex paint. + }
SECTION 7. { + Data disclosure. The Department of
Environmental Quality may not disclose data reported by a
stewardship organization under section 6 of this 2009 Act. The
department may disclose information contained in the records
obtained by the department under section 6 of this 2009 Act in
aggregate form. + }
SECTION 8. { + Orders and actions. + } { + (1) In accordance
with the applicable provisions of ORS chapter 183 relating to
contested case proceedings, the Department of Environmental
Quality may issue an order requiring compliance with the
provisions of sections 1 to 10 of this 2009 Act.
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(2) The department may bring an action against any producer or
stewardship organization in violation of the provisions of
sections 1 to 10 of this 2009 Act. + }
SECTION 9. { + Administrative fees. (1) The Department of
Environmental Quality shall charge the following fees to be paid
by a stewardship organization for administering sections 1 to 10
of this 2009 Act:
(a) $10,000 when the plan specified in section 4 of this 2009
Act is submitted to the department; and
(b) $10,000 each year thereafter for administrative costs
related to the architectural paint stewardship pilot program.
(2) The department may establish a schedule of fees in lieu of
the fees specified in subsection (1) of this section that is
based on an average of the results of the financial audits
described in section 6 of this 2009 Act and that do not exceed
0.05 percent of the average architectural paint stewardship pilot
program costs reported in the financial audits.
(3) Fees collected by the department under this section shall
be deposited in the Product Stewardship Fund established under
section 10 of this 2009 Act. + }
SECTION 10. { + Product Stewardship Fund. The Product
Stewardship Fund is established, separate and distinct from the
General Fund. Fees collected by the Department of Environmental
Quality under section 9 of this 2009 Act shall be deposited in
the State Treasury to the credit of the Product Stewardship Fund.
Interest earned by the Product Stewardship Fund shall be credited
to the fund. Moneys in the fund are continuously appropriated to
the Department of Environmental Quality and may be used only to
pay the costs of implementing the provisions of sections 1 to 10
of this 2009 Act. + }
SECTION 11. { + Report to Legislative Assembly. + } { + No
later than October 1, 2011, the Director of the Department of
Environmental Quality shall submit a report to the Legislative
Assembly describing the results of the architectural paint
stewardship pilot program and recommending whether the 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 of Environmental Quality under section 9 of this
2009 Act. + }
SECTION 12. { + Section captions. + } { + The section
captions used in this 2009 Act are provided only for the
convenience of the reader and do not become part of the statutory
law of this state or express any legislative intent in the
enactment of this 2009 Act. + }
SECTION 13. { + Repeal. Sections 1 to 10 of this 2009 Act are
repealed on June 30, 2014. + }
SECTION 14. { + Transfer. Any moneys remaining in the Product
Stewardship Fund on June 30, 2014, are transferred to the General
Fund. + }
SECTION 15. { + Effective date. This 2009 Act being necessary
for the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2009 Act
takes effect on its passage. + }
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Enrolled House Bill 3037 (HB 3037-A) Page 5
Passed by House June 24, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 27, 2009
...........................................................
President of Senate
Enrolled House Bill 3037 (HB 3037-A) Page 6
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 3037 (HB 3037-A) Page 7