NY Env Conserv L § 27-2003 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 20 - Postconsumer Paint Collection Program 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.