Illinois General Assembly - Full Text of HB1899
Illinois General Assembly

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Full Text of HB1899  102nd General Assembly


Rep. Charles Meier

Filed: 3/12/2021





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2    AMENDMENT NO. ______. Amend House Bill 1899 by replacing
3everything after the enacting clause with the following:
4    "Section 1. Short title. This Act may be cited as the Paint
5Stewardship Act.
6    Section 5. Findings. The General Assembly finds that:
7    (1) Leftover architectural paints present significant
8waste management issues for counties and municipalities.
9Managing the end-of-life of architectural paint can be costly
10and present environmental, health, and safety risks if not
11properly managed.
12    (2) Nationally, an estimated 10% of architectural paint
13purchased by consumers is leftover. Current governmental
14programs collect only a fraction of the potential leftover
15paint for proper reuse, recycling, or disposal. In northern
16Illinois, there are only 4 permanent household hazard waste



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1facilities and these facilities do not typically accept latex
2paint, the most common paint purchased by consumers.
3    (3) It is in the best interest of this State for paint
4manufacturers to assume responsibility for development and
5implementation of a cost-effective paint stewardship program
6that will: educate consumers on strategies to reduce the
7generation of leftover paint; provide opportunities to reuse
8leftover paint; and collect, transport, and process leftover
9paint for end-of-life management, including reuse, recycling,
10energy recovery, and disposal. Requiring paint manufacturers
11to assume responsibility for the collection, recycling, reuse,
12transportation, and disposal of leftover paint will provide
13more opportunities for consumers to properly manage their
14leftover paint, provide fiscal relief for this State and local
15governments in managing leftover paint, keep paint out of the
16waste stream, and conserve natural resources.
17    (4) Similar architectural paint stewardship programs are
18currently operating in 9 jurisdictions and are successfully
19diverting a significant portion of the collected paint waste
20from landfills. These paint stewardship programs are saving
21counties and municipalities the cost of managing paint waste
22and have been successful at recycling leftover paint into
23recycled paint products as well as other products. For
24instance, in the state of Oregon, 64% of the latex paint
25collected in the 2019-2020 fiscal year was recycled into paint
26products; and, in Minnesota, 48% of the latex paint collected



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1during the same time period was reused or recycled into paint
2products. Given the lack of access to architectural paint
3collection programs in Illinois, especially for leftover latex
4architectural paint, and the demonstrated ability of the paint
5industry to collect and recycle a substantial portion of
6leftover architectural paint, this legislation is necessary.
7It will create a statewide program that diverts a significant
8portion of paint waste from landfills and facilitates
9recycling of leftover paint into paint and other products.
10    (5) Establishing a paint stewardship program in Illinois
11will create jobs as the marketplace adjusts to the needs of a
12robust program that requires transporters and processors.
13Certain infrastructure already exists in the State and the
14program may attract additional resources.
15    (6) Legislation is needed to establish this program in
16part because of the risk of antitrust lawsuits. The program
17involves activities by competitors in the paint industry and
18may affect the costs or prices of those competitors. As
19construed by the courts, the antitrust laws impose severe
20constraints on concerted action by competitors that affect
21costs or prices. Absent State legislation, participation in
22this program would entail an unacceptable risk of class action
23lawsuits. The risk can be mitigated by legislation that would
24bar application of federal antitrust law under the "state
25action" doctrine. Under that doctrine, federal antitrust law
26does not apply to conduct that is (1) undertaken pursuant to a



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1clearly expressed and affirmatively articulated state policy
2to displace or limit competition, and (2) actively supervised
3by the State.
4    (7) To ensure that this defense will be available to
5protect participants in the program, it is important for State
6legislation to be specific about the conduct it is authorizing
7and to express clearly that the State is authorizing that
8conduct pursuant to a conscious policy decision to limit the
9unfettered operation of market forces. It is also critical for
10the legislation to provide for active supervision of the
11conduct that might otherwise be subject to antitrust attack.
12In particular, the legislation must provide for active
13supervision of the decisions concerning the assessments that
14will fund the program. A clear articulation of the State's
15purposes and policies and provisions for active State
16supervision of the program will ensure that industry
17participation in the program will not trigger litigation.
18    (8) To ensure that the costs of the program are
19distributed in an equitable and competitively neutral manner,
20the program will be funded through an assessment on each
21container of paint sold in this State. That assessment will be
22sufficient to recover, but not exceed, the costs of sustaining
23the program and will be reviewed and approved by the Illinois
24Environmental Protection Agency. Funds collected through the
25assessment will be used by the representative organization to
26operate and sustain the program.



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1    Section 10. Definitions. In this Section:
2    "Agency" means the Environmental Protection Agency.
3    "Architectural paint" means interior and exterior
4architectural coatings sold in containers of 5 gallons or
5less. "Architectural paint" does not include industrial
6original equipment or specialty coatings.
7    "Collection site" means any location or event at which
8architectural paint is accepted into a postconsumer paint
9collection program pursuant to a postconsumer paint collection
10program plan.
11    "Director" means the director of the Environmental
12Protection Agency.
13    "Environmentally sound management practices" means
14procedures for the collection, storage, transportation, reuse,
15recycling, and disposal of architectural paint to be
16implemented by a manufacturer or representative organization
17or by the manufacturer's or representative organization's
18contracted partners to comply with all applicable federal,
19State, and local laws and any rules, regulations, and
20ordinances for the protection of human health and the
21environment. These procedures shall address adequate record
22keeping, tracking and documenting of the final disposition of
23materials, and appropriate environmental liability coverage
24for the representative organization.
25    "Household waste" has the same meaning as defined in 40



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1CFR 261.4(b)(1).
2    "Postconsumer paint" means architectural paint not used
3and no longer wanted by a purchaser.
4    "Manufacturer" means a manufacturer of architectural paint
5who sells, offers for sale, or distributes the architectural
6paint in the State under the manufacturer's own name or brand.
7    "Program" means the postconsumer paint stewardship program
8established pursuant to Section 15.
9    "Recycling" means a method, technique, or process designed
10to remove any contaminant from waste so as to render the waste
11reusable, or any process by which materials that would
12otherwise be disposed of or discarded are collected,
13separated, or processed and returned to the economic
14mainstream in the form of raw materials or products.
15    "Representative organization" means a nonprofit
16organization established by a manufacturer to implement the
17postconsumer paint stewardship program.
18    "Retailer" means a company that offers architectural paint
19or other allied products for retail sale in the State.
20    "Very small quantity generator" has the same meaning as
21defined in 40 CFR 260.10.
22    Section 15. Paint stewardship program plan.
23    (a) A manufacturer of architectural paint sold at retail
24in the State or a representative organization shall submit to
25the Director a plan for the establishment of a postconsumer



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1paint stewardship program. The program shall seek to reduce
2the generation of postconsumer paint, promote its reuse and
3recycling, and manage the waste stream using environmentally
4sound management practices.
5    (b) The plan submitted by the manufacturer or
6representative organization to the Agency under this Section
8        (1) Provide a list of participating manufacturers and
9    brands covered by the program.
10        (2) Provide information on the architectural paint
11    products covered under the program, such as interior or
12    exterior water-based and oil-based coatings, primers,
13    sealers, or wood coatings.
14        (3) Describe how it will provide for convenient and
15    cost-effective statewide collection of postconsumer
16    architectural paint in the State. The manufacturer or
17    representative organization may coordinate the program
18    with existing household hazardous waste collection
19    infrastructure as is mutually agreeable. A paint retailer
20    may be authorized by the manufacturer or representative
21    organization as a paint collection site if the paint
22    retailer volunteers to act as such, complies with all
23    applicable laws, rules, and regulations, and the retail
24    location is consistent with the maintenance of a
25    cost-effective network of paint collection locations.
26        (4) Establish a goal for the number and geographic



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1    distribution of collection sites for postconsumer
2    architectural paint using geographic modeling and the
3    following criteria:
4            (A) at least 90% of State residents shall have a
5        collection site within a 15-mile radius; and
6            (B) one site shall be available for every 50,000
7        residents of an Urbanized Area, as defined by the U.S.
8        Census Bureau, unless otherwise approved by the
9        Director.
10        (5) Describe how postconsumer paint will be managed in
11    an environmentally and economically sound manner using the
12    following strategies and in the following order: reuse,
13    recycling, energy recovery, and disposal. Incineration
14    within the State shall not be utilized.
15        (6) Describe education and outreach efforts to inform
16    consumers about the program. These materials should
17    include:
18            (A) information about collection opportunities for
19        postconsumer paint;
20            (B) information about the fee for the operation of
21        the program that shall be included in the purchase
22        price of all architectural paint sold in the State;
23        and
24            (C) efforts to promote the source reduction,
25        reuse, and recycling of architectural paint.
26        (7) Be reviewed by an independent auditor to assure



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1    that any added fee to paint sold in the State as a result
2    of the postconsumer paint stewardship program does not
3    exceed the costs to operate and sustain the program in
4    accordance with sound management practices. The
5    independent auditor shall verify that the amount added to
6    each unit of paint will cover the costs and sustain the
7    postconsumer paint stewardship program.
8    (c) A manufacturer or representative organization shall
9select the independent auditor under paragraph (7) of
10subsection (b) in consultation with the Agency. The Agency
11shall review the work product of the independent auditor. The
12cost of any work performed by the independent auditor shall be
13funded by the program.
14    (d) Not later than 60 days after submission of the plan
15under this Section, the Director shall make a determination in
16writing whether to approve the plan as submitted or disapprove
17the plan.
18    (e) The Agency shall enforce the plan and may, by rule or
19regulation, establish enforcement procedures. If circumstances
20require an adjustment of the paint stewardship fee, the
21manufacturer or representative organization shall request the
22adjustment by submitting to the Agency a justification for the
23adjustment as well as financial reports to support the
24request, including a 5-year projection of the financial status
25of the organization. The Agency shall review the request to
26determine if the proposed fee adjustment will generate



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1revenues sufficient to pay the program expenses, including any
2accumulated debt, and develop a reasonable reserve level
3sufficient to sustain the program. If a decrease in the paint
4fee is requested, the Agency shall review the request to
5determine if the proposed fee adjustment and the resulting
6decreased revenue is sufficient to pay program expenses and
7maintain a reasonable reserve level sufficient to sustain the
9    (f) No later than the implementation date of the program,
10information regarding the approved plan, the names of
11participating manufacturers, and the brands of architectural
12paint covered by the program shall be posted on the Agency's
13website and on the website of the manufacturer or
14representative organization.
15    (g) Upon implementation of the program, each manufacturer
16shall include in the price of any architectural paint sold to
17retailers and distributors in the State the per container
18amount in the approved program plan. Manufacturers are
19responsible for filing, reporting, and remitting the paint
20stewardship assessment for each container of architectural
21paint to the representative organization. A retailer or
22distributor shall not deduct this amount from the purchase
24    Section 20. Incineration prohibited. No person may
25incinerate leftover architectural paint collected pursuant to



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1an approved paint stewardship plan as required by Section 15.
2    Section 25. Plan submission. The plan required by Section
315 shall be submitted not later than 12 months after the
4authorization of the program is final. The Agency may grant an
5extension of time to submit the plan for good cause.
6    Section 30. Sale of paint.
7    (a) A manufacturer or retailer shall not sell or offer for
8sale architectural paint to any person in the State unless the
9manufacturer of a paint brand or the manufacturer's
10representative organization is implementing an approved paint
11stewardship plan as required by Section 15.
12    (b) A retailer shall be in compliance with this Act if, on
13the date the architectural paint was offered for sale, the
14retailer's manufacturer is listed on the Agency's website as
15implementing or participating in an approved program or if the
16paint brand is listed on the Agency's website as being
17included in the program.
18    (c) A paint collection site authorized under the
19provisions of this Act shall not charge any additional amount
20for the disposal of paint when it is offered for disposal.
21    (d) No retailer is required to participate in a paint
22stewardship program as a collection site. A retailer may
23participate as a paint collection site on a voluntary basis.
24    (e) Nothing in this Act shall require a retailer to track,



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1file, report, submit, or remit a paint stewardship assessment,
2sales data, or any other information on behalf of a
3manufacturer, distributor, or representative organization.
4    Section 35. Liability. A manufacturer or representative
5organization participating in a postconsumer paint stewardship
6program shall not be liable for any claim of a violation of
7antitrust, restraint of trade, unfair trade practice, or other
8anticompetitive conduct arising from conduct undertaken in
9accordance with the program.
10    Section 40. Annual report. Annually, a manufacturer or
11representative organization shall submit a report to the
12Agency that details the program. The report shall include:
13        (1) a description of the methods used to collect and
14    transport postconsumer paint collected in the State;
15        (2) the volume and type of postconsumer paint
16    collected and a description of the methods used to process
17    the paint, including reuse, recycling, and other methods;
18        (3) samples of educational materials provided to
19    consumers of architectural paint; and
20        (4) the total cost of the program and an independent
21    financial audit. An independent financial auditor shall be
22    chosen by the manufacturer or representative organization.
23    The report or information relating to the report shall be
24    posted on the Agency's website and on the website of the



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1    manufacturer or representative organization.
2    Section 45. Annual report submission. A manufacturer or
3representative organization shall submit the first annual
4report detailing the postconsumer paint collection program as
5required by Section 15 to the Director within 14 months
6following implementation of the program, and annually
7thereafter. The Agency may extend the time for submission of
8the annual report for cause shown.
9    Section 50. Disclosure. Financial, production, or sales
10data reported to the Agency by a manufacturer, retailer, or
11representative organization shall not be subject to
12disclosure, but the Director may release a summary form of the
13data that does not disclose financial, production, or sales
14data of the manufacturer, retailer, or representative
16    Section 55. Program plan submission fee. A manufacturer or
17representative organization submitting a program plan shall
18pay an administrative fee to the Agency at the time of
19submission. The Agency may establish a variable fee based on
20relevant factors, including, but not limited to, the portion
21of architectural paint sold in the State by members of the
22manufacturer or representative organization compared to the
23total amount of architectural paint sold in the State by all



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1manufacturers or representative organizations that submit a
3    Section 60. Oversight fee. A manufacturer or
4representative organization operating a stewardship program
5shall pay to the Agency the costs it incurs in overseeing the
6stewardship program. The Agency shall set the fee at an amount
7that, when paid by every manufacturer or representative
8organization that submits a plan, is adequate to reimburse the
9Agency's full costs of administering this Act. The total
10amount of annual fees collected under this Section must not
11exceed the amount necessary to reimburse costs incurred by the
12Agency to administer this Act.
13    Section 65. Timing of oversight fee. A manufacturer or
14representative organization subject to Section 60 must pay the
15Agency's administrative fee annually. Each year after the
16initial payment, the annual administrative fee may not exceed
175% of the aggregate stewardship fee added to the cost of all
18architectural paint sold by manufacturers in the State for the
19preceding calendar year. The Agency may extend the time for
20payment upon good cause shown.
21    Section 70. Implementation. A manufacturer or
22representative organization shall implement the postconsumer
23paint collection plan within 6 months of the date that the



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1program plan is approved. The Agency may extend the date of
2implementation for good cause shown.
3    Section 75. Postconsumer paint from households and small
5    (a) Generators of household waste and very small quantity
6generators are authorized to transport or send their
7architectural paints to a paint collection site to the extent
8permitted by a postconsumer paint stewardship program approved
9by the Director.
10    (b) Paint collection sites are authorized to collect and
11temporarily store architectural paints generated by persons
12specified in subsection (a), in accordance with the
13requirements of the paint stewardship program, in lieu of any
14otherwise applicable hazardous waste or solid waste laws,
15rules, or regulations.
16    (c) Nothing in this Act shall be construed as restricting
17the collection of architectural paint by a postconsumer paint
18stewardship program where the collection is authorized under
19any otherwise applicable hazardous waste or solid waste laws,
20rules, or regulations.
21    (d) Nothing in this Act shall be construed to affect any
22requirements applicable to facilities that treat, dispose, or
23recycle architectural paint under any otherwise applicable
24hazardous waste or solid waste laws, rules, or regulations.".