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Paint Makers Lose Clash with CalRecycle

Monday, February 9, 2015

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Architectural paint manufacturers have failed in their two-year bid to block California rules specifying what they must include in recycling plans and reports.

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

At issue are state regulations that mandate supplier reporting of baselines, goals, methodologies and other data for PaintCare in California—information not required by the recycling program in other states.

painter
© iStock.com / BanksPhotos

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

The appellate ruling affirmed a lower-court decision.

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.

In its ruling, the appellate court stressed that CalRecycle’s regulations, found here, did not go beyond the program 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].

PaintCare recently wrapped up its second year in operation in California.

Paint Stewardship Program

Court documents provide the following background of the case.

In September 2010, Assembly Bill 1343 establishing a California Paint Stewardship Program was passed in California.

The American Coatings Association’s nonprofit PaintCare Inc. is in charge of administering the program in states that pass paint recycling laws.

The purpose of the program 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 the court documents.

CalRecycle
CalRecycle

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

Modeled after Oregon’s pilot program of two years earlier, California's take-back 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.

CalRecycle: The Enforcer

Under the California law, paint manufacturers are required to submit plans to CalRecycle (the California Department of Resources Recycling and Recovery) and report annually to the agency on their progress.

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

CalRecycle has the authority to enforce the program, including imposing civil penalties for noncompliance.

paint cans
© iStock.com / ozgurdonmaz

The American Coatings Association’s nonprofit paint stewardship organization, PaintCare Inc., is in charge of administering the program in states that pass paint stewardship laws.

To implement the program, CalRecycle engaged in rulemaking procedures and enacted a number of related measures in June 2012.

The measures provided that program 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 the regulations.

The regulations also require the organization “to 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.”

Another provision mandates that the reports include information on the collection of paints by type and specifies destination for reuse, recycling and/or disposal for paints.

Violations of the regulations could result in penalities of up to $10,000 per day, the court noted.

Overstepping Authority Alleged

In their case, 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 fully 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.

PaintCare
PaintCare 2014 Annual Report

California PaintCare collected and processed over 2 million gallons of unwanted, leftover paint in 2014.

Rather, the regulations properly “fill up the details of” or otherwise clarify the program, the court said.

CalRecycle's rules simply indicate the criteria it will use in reviewing plans and annual reports as part of its responsibility to enforce program compliance, 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; Paint recycling; PaintCare program

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