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CA Prevails on Paint Recycling Rules

Tuesday, February 10, 2015

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U.S. coating makers have lost a two-year legal fight to block California from imposing detailed reporting requirements on the industry's paint recycling program.

A California appeals court has ruled that regulations adopted to “implement the PaintCare Program in California” are within the state's authority and “do not enlarge or impair the scope of the program,” according to an opinion made public Feb. 3.

painter
© iStock.com / BanksPhotos

Architectural coatings manufacturers argued that CalRecycle regulations related to a program to recycle left-over coatings went too far.

At issue are regulations by CalRecycle (the California Department of Resources Recycling and Recovery) that mandate supplier reporting of baselines, goals, methodologies and other data for California PaintCare, which just wrapped up its second year.

Such information is not required by the American Coatings Association-created paint recycling program in any other state.

How, Not What

PaintCare officials did not immediately respond to a request for comment on the ruling and its implications.

The suit, PaintCare et.al. v. Carroll Mortensen etc. et.al, was brought in October 2012 and heard in the Superior Court of Los Angeles County. Mortensen is director of CalRecycle.

The appellate court ruled that the CalRecycle requirements were in bounds because “they do not dictate how manufacturers comply with the Program.”

“Rather, they set forth what information manufacturers must provide to CalRecycle to comply with the Program,” according to the opinion [emphasis in original].

Paint Stewardship

The case dates to September 2010, when California passed Assembly Bill 1343, establishing a California Paint Stewardship Program.

The American Coatings Association’s nonprofit PaintCare Inc. administers the program in states that pass paint recycling laws. The same basic model for the program has rolled out in state after state.

In California, the goal was to “require paint manufacturers to develop and implement a program to collect, transport, and process postconsumer paint to reduce the costs and environmental impacts of the disposal of postconsumer paint in the state,” according to court documents.

CalRecycle
CalRecycle

Carroll Mortensen, named in the suit, is the director of CalRecycle.

Like Oregon’s pilot program of two years earlier, California's system for leftover paint targeted household and commercial consumers of paint. It took effect October 2012.

California's program was the second, and is now the largest, of its kind in the U.S. Seven other states have enacted similar laws and programs.

The Enforcer

Under the California law, paint manufacturers are required to submit plans to CalRecycle and report annually on their progress. Noncompliance can bring civil penalties of up to $10,000 per day.

paint cans
© iStock.com / ozgurdonmaz

The American Coatings Association’s nonprofit PaintCare Inc.  runs the program in states that pass paint stewardship laws.

Plans must include a baseline, provided by the manufacturer or stewardship organization, from which goals will be measured and reported.

“The baseline should indicate the status of household hazardous waste management in California at the time of plan submission,” the court noted, citing CalRecycle regulations enacted in June 2012.

Organizations must also “describe how the goals will be measured, including a description of the methodology used for estimating the amount of leftover paint available for collection in California.”

Reports must include information on the collection of paints by type and specify the destination for reuse, recycling and/or disposal for paints.

Authority Challenged

PaintCare and the ACA argued that the regulations were invalid because:

  • CalRecycle lacked authority to adopt them; and
  • They were inconsistent with, and exceeded, the scope of the program.

The trial and appellate courts both disagreed, concluding that the agency was acting within its rulemaking authority.

The agency doesn't require the paint makers to set a percentage increase in collection of leftover paint or require specific methodologies, the appellate court said. Rather, it said, the rules clarify and fill in details of the program.

PaintCare
PaintCare 2014 Annual Report

California PaintCare collected and processed more than two million gallons of unwanted, leftover paint in 2014.

The rules also indicate the criteria the agency will use to review plans and annual reports as part of its compliance duty, the court found.

The appellate court also permitted CalRecycle to recover its costs on appeal.

PaintCare reported its second year in operation to CalRecycle on Nov. 25, 2014. California PaintCare said it established 673 paint drop-off sites; collected and processed more than two million gallons of paint; and reported more than $35 million in revenues, which is used to pay for the program, education and outreach.

   

Tagged categories: American Coatings Association (ACA); Associations; Business operations; Coating Materials; North America; Paint recycling; PaintCare program

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