ASSEMBLY ENVIRONMENT, NATURAL RESOURCES, AND SOLID WASTE COMMITTEE

STATEMENT TO

ASSEMBLY, No. 4965

STATE OF NEW JERSEY

DATED:  NOVEMBER 14, 2024

      The Assembly Environment, Natural Resources, and Solid Waste Committee reports favorably Assembly Bill No. 4965.

      This bill requires every producer of architectural paint sold in the State to implement, or participate in, a Statewide architectural paint stewardship program.

      The bill requires every architectural paint producer, or a representative organization established on behalf of two or more such producers, to develop and implement a plan for an architectural paint stewardship program that is designed to minimize the involvement of, and eliminate costs to, the public sector in association with the collection, transportation, and processing of post-consumer architectural paint by reducing its generation, promoting its reuse and recycling, and negotiating and executing agreements for its collection, transportation, reuse, recycling, burning for energy recovery, incineration, and disposal using environmentally sound management practices that are consistent with the United States Environmental Protection Agency’s Waste Management Hierarchy (federal waste management hierarchy) – a four-tiered hierarchy that guides waste management by promoting source reduction, recycling, energy recovery, and waste treatment and disposal – in that order.

      The bill requires any such plan to:

      (1) provide for convenient and available Statewide collection of post-consumer architectural paint from urban, suburban, and rural areas of the State in a manner that, at a minimum, ensures collection rates and a level of convenience equal to or greater than that provided by other collection programs available to consumers prior to the establishment of the architectural paint stewardship program;

      (2) provide collection site locations Statewide that will accept post-consumer architectural paint;

      (3) address, to the extent reasonably feasible and mutually agreeable, the coordination of the architectural paint stewardship program with the existing infrastructure of local governments and the existing household hazardous waste collection infrastructure in the State, to the extent that there are no additional costs to the local, county, or State government, for the collection, transportation, or processing of post-consumer architectural paint;

      (4) describe how the program will follow a hierarchy that is consistent, to the extent feasible, with the federal waste management hierarchy;

      (5) describe the educational materials and outreach efforts that would be used to inform consumers about the architectural paint stewardship program and the paint stewardship assessment, including a notice provision stating that the costs of program operation will be included in the purchase price of all architectural paint sold in the State;

      (6) identify an appropriate amount for the paint stewardship assessment;

      (7) provide two lists respectively identifying each producer participating in the architectural paint stewardship program, and the brands of architectural paint included under the program; and

      (8) include a proposed budget that has been reviewed and certified by an independent financial auditor, and which confirms that the paint stewardship assessment included in the price of each unit of paint sold in the State will cover and sustain, but not exceed, the costs of the architectural paint stewardship program.

      No sooner than five years and no later than six years, after the bill’s effective date, all architectural paint stewardship plans would be required to be amended to provide for the environmentally sound collection, transportation, reuse, recycling and disposal of aerosol paint.

      Under the bill, a producer or representative organization would also be required to establish, as a funding mechanism for the program and the implementation of its plan, and to include in the program plan, a paint stewardship assessment amount that is uniformly included in the sale price of all brands of architectural paint covered under the architectural paint stewardship program.  The bill prohibits the assessment amount from exceeding the costs of implementing and sustaining the architectural paint stewardship plan and the architectural paint stewardship program.  Each producer is required to include the paint stewardship assessment in the cost of each container of architectural paint sold thereby to a retailer or distributor in the State, and each retailer or distributor is then required to include the paint stewardship assessment in the purchase price of the producer’s architectural paint.  If a producer is a member of a representative organization, the producer is required to remit, to the representative organization, the paint stewardship assessment received for each container of architectural paint sold by the producer in the State.

      The bill requires an architectural paint stewardship program plan to be submitted to the DEP for approval, prior to its implementation, by a paint producer or representative organization.  The bill authorizes the DEP to approve or disapprove of a proposed plan.  If the DEP disapproves of a plan, the bill provides a procedure for subsequent plan revision, by the producer or representative organization, and for DEP review of the revised plan.  If the DEP is dissatisfied with a revised plan, the bill authorizes the DEP, in the interests of expediency, to propose any modifications or substitutions to the plan’s provisions it deems necessary.  The bill requires notice to the DEP if there are any changes to the location or number of collection sites, the identity of the processors that manage the post-consumer architectural paint, or the transporters of the post-consumer architectural paint collected by the program.  An amendment to the plan is required if there is any change to the amount of the paint stewardship assessment or the goals of the architectural paint stewardship program.  The bill would direct the DEP to charge, and to collect from each producer or representative organization that submits a plan pursuant to the bill, an annual administrative fee not exceeding the DEP’s costs in administering the bill’s provisions.

      The bill would require a producer or representative organization to implement the program described in a proposed plan within 90 days after its approval or modification by the DEP.  The producer or representative organization would further be required to submit an annual report, to the DEP, which describes or includes, among other things:  the pounds of post-architectural paint collected in the State; the methods used to collect, transport, reduce, reuse, recycle, and process post-consumer architectural paint; a list of all producers participating in the program; the estimated volume collected at each collection site; a list of the processors of post-consumer architectural paint and the disposition method used by each processor; an evaluation of the effectiveness of the program and any steps necessary to improve the program; samples of the educational materials provided to consumers of architectural paint; and a certification to the validity of the information contained in the report.

      The bill would prohibit a producer, distributor, or retailer of architectural paint from selling architectural paint, or from offering it for sale, in the State unless the producer of the paint, or a representative organization of which the producer is a member, is engaged in the implementation of, or has fully implemented, an architectural paint stewardship program plan or a revised plan approved by the DEP commissioner.  A distributor or retailer would be deemed to be in compliance with this sales prohibition if, on the date architectural paint is ordered thereby, the producer of the paint and the brand name of the paint are each identified on the DEP’s Internet website as being included in an architectural paint stewardship program plan.

      The bill would further provide that any producer, distributor, or retailer who fails to comply with the bill’s sales prohibition will be subject to a written warning for a first offense and a penalty of $500 for each subsequent offense.  The bill would additionally authorize the DEP to institute a civil action for injunctive relief to prevent a continuing violation of this sales prohibition.  However, in order to allow time for the submission, approval, or modification of the plans required by the bill, the sales prohibition and penalty provision would not take effect until the first day of the 18th month following the bill’s enactment.

      The bill would also authorize the DEP, whenever it determines that a producer, distributor, or retailer is in violation of the bill’s provisions, to assess a civil administrative penalty of not more than $500 for each violation, not exceeding a maximum penalty of $10,000 during a calendar year.  Each day of violation would constitute an additional, separate, and distinct violation.  A civil administrative penalty would not be levied, under the bill, until a violator has been notified by certified mail or personal service of the following:  the statutory or regulatory basis of the violation; the specific act or omission that constituted the violation; the amount of the civil administrative penalty to be imposed; the right of the violator to contest, through a hearing, any matter contained in the notice; and the procedures for requesting a hearing on any contested matter.  The bill would provide for the DEP to post, on its Internet website, a list of producers, distributors, and retailers that are in violation of the bill’s provisions.

      Finally, the bill would specify that a producer or representative organization participating in a post-consumer paint stewardship program will not be liable for any claim of a violation of antitrust, restraint of trade, unfair trade practice, or other anticompetitive conduct arising from conduct undertaken in accordance with the program, including, without limitation, the types or quantities of paint being managed consistent with the federal waste management hierarchy.  This protection against antitrust liability would, however, not applicable to:  (1) any agreement establishing or affecting the price of architectural paint, except an agreement to establish a paint stewardship assessment, as authorized by the bill; or (2) any agreement restricting the output or production of architectural paint or the geographic area or customers to which paint will be sold.