Postconsumer Paint generally accounts for the largest volume of waste collected by metropolitan household hazardous waste (HHW) programs and as such is the most expensive to manage. Further complicating the situation is that many municipalities and counties ban disposal of liquids; therefore, liquid latex paint cannot be disposed of as "mixed municipal solid waste" in your regular garbage.
With the recent economic downturn many localities are faced with budget shortfalls and are looking for ways to reduce their waste management budgets. As a result, proposals have cropped up that would impose stringent and burdensome requirements on paint producers to fund state dictated end-of-life systems. ACA looked to a product stewardship solution instead, an approach that had been used successfully for paint end-of-life management in Canada for many years. Using this approach, ACA was instrumental in securing passage of the first-ever paint product stewardship law in the United States in the state of Oregon in July 2009.
ACA created PaintCare®, a 501(C)(3) organization whose sole purpose is to ensure effective operation and efficient administration of paint product stewardship programs on behalf of all architectural paint manufacturers in the United States. PaintCare® undertakes the responsibility for ensuring an environmentally sound and cost-effective program by developing and implementing strategies to reduce the generation of post-consumer architectural paint; promoting the reuse of post-consumer architectural paint; and providing for the collection, transport, and processing of post-consumer architectural paint using the hierarchy of reduce, reuse, recycle, and proper disposal.
This model solution was developed as part of an agreement with federal, state, and local government stakeholders. California became the second state to adopt ACA's product stewardship legislation in September 2010, and Connecticut the third state in June 2011.
The following provides an update of PaintCare® and paint product stewardship activity across the nation.
Oregon– In its first full year, PaintCare® established 100 permanent collection sites for paint in Oregon (as opposed to 15 permanent locations available pre-program); 469,665 gallons of paint was collected with virtually all of the paint going to recycling or beneficial reuse; and 47 tons of plastic pails and 65 tons of metal cans were recycled under the program. $4 million was raised in the first year of the program and of that revenue, $3,301,977 was spent on administration; collection, transportation, processing, and recycling of leftover paint; and education and outreach. Only 17% was spent on administration, and the rest – 83% went to Oregon service providers. Lastly, the program saved the state and municipal governments this money – as consumers of paint funded the program and not taxpayers. The PaintCare program saved Portland Metro alone over $1million.
The program is an incontrovertible success, and in its Report to the Oregon Legislature, the Oregon Department of Environmental Quality (DEQ) recommended that the program become permanent – a recommendation ACA supports. However, in its report, DEQ also recommended several changes to the program that ACA maintains do not serve to improve program function and efficiency; instead, they add significant costs to the program – costs that would be borne by Oregon residents and that do not provide for any commensurate environmental benefit.
PaintCare® has provided comment to this effect to Oregon’s House Interim Committee on Energy, Environment, and Water. PaintCare® will also offer testimony on the program and rebut some of the falsities contained in the DEQ report at a special hearing later in February. In the meantime, PaintCare® continues to collect paint and grow the program in Oregon.
California– In order to put the PaintCare®program in place in California, CalRecycle must go through a regulatory rulemaking to clarify the statute for items including stewardship plan approval criteria; a process for CalRecycle to accept payment for its services related to oversight and enforcement activities; the establishment of a progressive enforcement approach; and criteria for acceptance of annual reports.
Unfortunately, drafts of the CalRecycle regulations continue to include requirements that were specifically not included in the statute, and go far beyond the legislation that ACA supported last year. The last draft also failed to identify CalRecycle's administrative fees or a public process to develop those fees. Throughout 2011, ACA advocated for adherence to the statute to ensure that PaintCare® in California is consistent with ACA's national PaintCare® format and remains an industry-run program, submitting multiple sets of comments and meeting with the new director of CalRecycle.
OAL recently sent the Carpet Stewardship regulations back to CalRecycle to correct certain elements. One of those elements is the lack of clarity and process for the administrative fee the stewardship organization must pay the Agency. Since the same issue will arise with a review of the Paint Stewardship (PaintCare®) draft regulations, CalRecycle has decided to now address the issue and submit a revised draft for another 15-day comment period rather than submit the regulations as is to OAL. This gives ACA one more opportunity to not only advocate for the necessary changes to the administrative fee portions of the regulations, but to also advocate that the additional mandatory elements (over and above the statutory mandate) under the Annual Report regulatory requirements be made permissive. This would address the last two elements of the regulation that ACA and PaintCare®could not support. While the entire regulation goes above and beyond the statutory language – ACA was willing to compromise on much of the language – but must see these last two issues addressed. If they can be successfully addressed through the upcoming comment period, ACA will be able to avoid litigation.
If this cannot be accomplished, the regulations will be sent to California's Office of Administrative Law (OAL), the watchdog agency that ensures that the regulations match the statutory authority of the agency. OAL has the ability to require CalRecycle to amend the regulations if they find they are not consistent with the authority of the agency, which ACA has adamantly stressed to OAL.
Washington– ACA testified on Jan. 24 at a Washington Senate Environmental Committee hearing on the PaintCare®legislation pending in that state. The bill that is currently filed there, SB 6145, was placeholder language while a final draft was being negotiated with the Department of Ecology and other stakeholders. ACA testified that the fundamentals of the program were contained in the bill and we supported the efforts to bring the PaintCare® program to Washington. Substitute language was voted favorably out of the Committee on Feb. 3 and continues to move with a hearing in Ways and Means on Feb. 6. ACA continues to refine the language of the bill as it advances it through the Washington legislature.
Rhode Island– ACA had very positive meetings on Jan. 25 with the Rhode Island Department of Environmental Management, the Rhode Island Resource Recovery Corporation, and Rhode Island House and Senate leadership about pursuing a PaintCare® bill in in the state this session. Language has already been submitted and ACA is awaiting a formal bill shortly.
Extended Producer Responsibility (EPR) Framework Legislation– There are several Extended Producer Responsibility (EPR) Framework bills that would impose an undue burden on manufacturers for financing paint recovery and recycling programs that are pending in Vermont, New York, and Puerto Rico.
ACA is planning on pursuing the legislation already pending in Vermont, introducing new legislation in New York, and fighting non-PaintCare® legislation in Puerto Rico. ACA has scheduled meetings already in Vermont and New York this month, and will be submitting companion comments to the Puerto Rico Legislature along with the Puerto Rico Manufacturers Association, opposing their EPR Framework legislation.
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