79R4566 SMH-D

By:  Naishtat                                                     H.B. No. 1359


A BILL TO BE ENTITLED
AN ACT
relating to the establishment of a program for the disposition of electronic equipment in a manner that protects the water and other natural resources of the state; providing a criminal penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 361, Health and Safety Code, is amended by adding Subchapter X to read as follows:
SUBCHAPTER X. ELECTRONIC EQUIPMENT
Sec. 361.851. DEFINITIONS. In this subchapter: (1) "Electronic equipment" means equipment that depends on electric current or an electromagnetic field to work properly and that contains one or more printed circuit boards. The term includes: (A) computer equipment, including a central processing unit or a peripheral device, including a display monitor, keyboard, or printer; (B) video equipment, including a television; (C) telecommunications equipment, including a wireline or cellular telephone, facsimile machine, or answering machine; (D) a small electronic device or appliance; (E) audio equipment; (F) a toy, game, or educational device; or (G) a major household appliance. (2) "Electronic equipment waste" means electronic equipment or a component of electronic equipment that has been discarded, become obsolete, or ceased to function, is no longer wanted by its owner, or for any other reason enters the collection, recovery, treatment, processing, or recycling system. (3) "Historical waste" means electronic equipment that: (A) became electronic equipment waste before September 1, 2005; and (B) was manufactured by or bears the brand name of a company that was still in business on September 1, 2005. (4) "Orphan waste" means electronic equipment that: (A) became electronic equipment waste before September 1, 2005; and (B) was manufactured by or bears the brand name of a company that was no longer in business on September 1, 2005. (5) "Plan" means a plan for producer-financed collection, treatment, recovery, reuse, recycling, and disposition of electronic equipment waste required by Section 361.853. (6) "Producer" means any person, without regard to the sales technique or channel used to sell the person's products, including means of distance communication, that: (A) manufactures and sells electronic equipment under its own brand; (B) resells under its own brand electronic equipment produced by another manufacturer; or (C) imports electronic equipment for first sale in this state. (7) "Recycling" means the reprocessing of electronic equipment or components of electronic equipment that have become electronic equipment waste so that they may be used for the purpose for which they were designed or for other purposes. The term does not include the recovery of energy or energy generation by means of combusting electronic equipment waste with or without other waste. (8) "Reuse" means an operation by which electronic equipment or components of electronic equipment that have become electronic equipment waste are used for the purpose for which they were designed. Sec. 361.852. COMMISSION POWERS AND DUTIES. The commission shall: (1) implement this subchapter; and (2) include in its biennial reports under Section 5.178, Water Code, any recommendations regarding amendments to this subchapter. Sec. 361.853. PLAN APPROVAL AND IMPLEMENTATION REQUIRED. A producer may not sell or resell electronic equipment in this state unless: (1) the commission approves a plan submitted by the producer under this subchapter; and (2) the producer implements the approved plan. Sec. 361.854. CONTENTS OF PLAN. A plan must include: (1) provisions for meeting the requirements of this subchapter regarding financing the collection, treatment, recovery, reuse, recycling, and disposition of: (A) the electronic equipment sold by the producer in this state; and (B) the producer's share of the orphan waste and historical waste in this state; (2) provisions for meeting the requirements of this subchapter regarding product recovery and component and material recycling; (3) a description of: (A) the performance measures to be used and reported by the producer to determine whether the producer is meeting the requirements described by Subdivision (2); and (B) any other measures to be used in evaluating the producer's implementation of the plan; (4) a description of the alternative or additional actions to be taken by the producer to meet the requirements described by Subdivision (2) if those requirements are not being met; (5) provisions for meeting the requirements of this subchapter regarding labeling of electronic equipment and education of consumers, recyclers, and processors; (6) documentation of the willingness of all necessary parties to implement the proposed plan for the collection, treatment, recovery, reuse, recycling, and disposition of electronic equipment and electronic equipment waste; (7) assurance that all facilities to be used to collect, treat, recover, reuse, recycle, or dispose of electronic equipment or electronic equipment waste will comply with all applicable existing environmental laws, rules, and regulations; and (8) a financial guarantee in the amount determined in accordance with a schedule adopted by the commission by rule to be sufficient to ensure that the costs of enforcing the plan and of managing the producer's share of orphan and historical waste is not borne by the public. Sec. 361.855. FINANCIAL RESPONSIBILITY OF PRODUCERS. (a) Each producer of electronic equipment sold or resold in this state shall implement a program for financing the environmentally sound collection, treatment, recovery, reuse, recycling, and disposition of: (1) the electronic equipment sold or resold by that producer that becomes electronic equipment waste; and (2) the producer's share of orphan waste and historical waste derived from electronic equipment of a type sold by that producer. (b) Producers may satisfy the requirements of this section individually or in cooperation with other producers. (c) Although a producer is encouraged to provide in the plan for direct collection or reverse delivery systems, the plan may require consumers and other electronic equipment end users to deliver electronic equipment waste into the collection system. The plan must permit consumers to return electronic equipment waste without charge. Sec. 361.856. PRODUCER'S SHARE OF ORPHAN AND HISTORICAL WASTE. (a) A producer's share of orphan waste and historical waste derived from electronic equipment of a type sold by the producer is proportional to the producer's share of the market for that type of equipment at the time waste management costs are incurred. (b) The commission shall determine annually the market share of each producer for purposes of this section. Sec. 361.857. LABELING OF EQUIPMENT. Each producer of electronic equipment sold or resold in this state must mark or label the equipment to provide consumers and other end users with information relating to: (1) the hazardous materials contained in the electronic equipment and the components of the electronic equipment containing those materials; (2) the restrictions on the manner of disposal of electronic equipment waste provided by Section 361.868 and the producer's plan; and (3) a toll-free telephone number or Internet website address at which consumers and other end users of electronic equipment may obtain information and instructions about the procedure for disposing of the electronic equipment that becomes electronic equipment waste. Sec. 361.858. CONSUMER EDUCATION PLAN. Each producer of electronic equipment sold or resold in this state must implement a consumer education plan designed to ensure that consumers and other end users of electronic equipment understand: (1) the restrictions on the manner of disposal of electronic equipment waste provided by Section 361.868 and the producer's plan; (2) the systems available for returning and collecting electronic equipment waste; (3) the potential effects on the environment and human health of the presence of hazardous substances in electronic equipment and the dangers of improper disposal of that equipment; and (4) the roles of consumers and other end users in contributing to the reuse or recycling of electronic equipment or to other means of recovering electronic equipment waste. Sec. 361.859. PROVISION OF INFORMATION TO RECYCLERS AND PROCESSORS. (a) A producer's plan must require the producer to demonstrate that the producer will take adequate measures to provide information to recyclers and processors of the producer's electronic equipment. (b) Not later than the first anniversary of the date a producer begins selling or reselling electronic equipment in this state, the producer shall provide to recyclers and processors information regarding the following matters for purposes of end-of-life treatment of the equipment: (1) disassembly of the equipment; (2) the material contained in the equipment; and (3) safety concerns associated with the equipment. Sec. 361.860. ENVIRONMENTAL PERFORMANCE REQUIREMENTS. (a) For orphan and historical waste, a producer is responsible for demonstrating: (1) not later than the second anniversary of the date the commission approves the producer's plan, that the producer is collecting in this state at least two kilograms of electronic equipment waste per person each year and is reusing or recycling at least 1.5 kilograms per person each year of that waste; and (2) not later than the fifth anniversary of the date the commission approves the producer's plan, that the producer is collecting in this state at least four kilograms of electronic equipment waste per person each year and is reusing or recycling at least 3.5 kilograms per person each year of that waste. (b) For electronic equipment waste other than orphan or historical waste, a producer is responsible for demonstrating: (1) not later than the second anniversary of the date the commission approves the producer's plan, that the producer is recovering at least 75 percent by number of the producer's products sold or resold in this state and is reusing or recycling at least 65 percent of the components and materials contained in the producer's products sold or resold in this state; and (2) not later than the fifth anniversary of the date the commission approves the producer's plan, that the producer is recovering at least 95 percent by number of the producer's products sold or resold in this state and is reusing or recycling at least 95 percent of the components and materials contained in the producer's products sold or resold in this state. Sec. 361.861. RESTRICTIONS ON USE OF PRISON LABOR. A plan may not include reliance on prison labor unless all incarcerated workers involved in the processing and recycling of electronic equipment waste are: (1) provided with compensation equivalent to market rate wages for the work performed; and (2) afforded the protections of: (A) state occupational safety and health laws, rules, and regulations; and (B) the worker safety and health protections required by Section 361.865. Sec. 361.862. PROHIBITION ON EXPORTING ELECTRONIC EQUIPMENT WASTE. A plan must prohibit the export of electronic equipment waste to any country that is not a member of the Organization for Economic Cooperation and Development. Sec. 361.863. SUBMISSION, REVIEW, AND APPROVAL OF PLAN. (a) A producer that desires to sell or resell electronic equipment in this state must submit a plan to the commission for review. The plan must be accompanied by an application fee in an amount determined by the commission to be sufficient to cover the cost of reviewing the plan. (b) The commission shall review a plan submitted under this section. If the commission determines that the plan does not meet the requirements of this subchapter, the commission shall advise the producer of any necessary amendments to the plan and provide the producer an opportunity to submit an amended plan. (c) The commission shall approve a plan if the plan meets the requirements of this subchapter. Sec. 361.864. RESTRICTIONS ON HAZARDOUS MATERIALS. (a) A producer may not sell electronic equipment in this state that contains: (1) lead; (2) mercury; (3) cadmium; (4) hexavalent chromium; (5) brominated flame retardants; or (6) polyvinyl chloride. (b) The commission by order may allow a producer to sell electronic equipment in this state that contains a substance prohibited by Subsection (a) for a period specified by the commission if the producer demonstrates that it is not technically possible to produce the type of electronic equipment in question without using that substance. (c) The commission may rescind an order issued under Subsection (b) if the commission subsequently determines that it is technically possible to produce the type of electronic equipment in question without using the substance in question. Sec. 361.865. WORKER SAFETY AND HEALTH PROTECTIONS. An owner or operator of a facility used to collect, recover, or recycle electronic equipment waste as part of a plan must protect the health and safety of the persons employed at the facility by: (1) providing to the commission in the manner provided by commission rule clear evidence of compliance with all applicable state and federal occupational safety and health laws, rules, and regulations; (2) performing routine industrial hygiene monitoring of the facility for all hazardous materials of concern, including monitoring for airborne lead and bromine, chlorine, and mercury compounds, and reporting the results of that monitoring to the commission quarterly; and (3) performing routine human health monitoring, in accordance with all applicable laws governing protection of privacy, of all persons employed at the facility, including conducting blood tests to determine whether persons have been exposed to airborne lead and bromine, chlorine, and mercury compounds, and reporting the results of that monitoring to the commission quarterly. Sec. 361.866. STATE PURCHASING AND LEASING. Each state agency shall adopt policies that: (1) require vendors of electronic equipment sold or leased to the state to reclaim the equipment when it becomes electronic equipment waste; and (2) establish a preference for purchasing or leasing electronic equipment that meets specified environmental performance standards relating to the reduction or elimination of hazardous materials. Sec. 361.867. REPORTS. (a) Each producer must submit an annual report to the commission detailing the producer's: (1) implementation of the producer's plan; and (2) compliance with this subchapter. (b) The annual report must document that the implementation of the plan has not resulted in the export of electronic equipment waste to any country that is not a member of the Organization for Economic Cooperation and Development. (c) The commission shall review the report not later than the 180th day after the date the report is submitted. If the commission determines that the producer is not in compliance with this subchapter, the commission shall notify the producer not later than the end of the following quarter. If the producer fails to comply with this subchapter by the end of the quarter following the quarter in which the notice is given, the commission may take action to enforce this subchapter. (d) The commission shall post on the commission's Internet website: (1) the annual report required by this section for the current year and the two preceding years; and (2) any other report detailing the implementation of the producer's plan for the current year and the two preceding years. Sec. 361.868. BAN ON INCINERATION OR DISPOSAL IN LANDFILL. (a) Electronic equipment and electronic equipment waste may not be disposed of in a landfill, incinerator, or cement kiln or used for another form of energy recovery or energy generation dependent on combustion of the waste. (b) This section applies to whole units of electronic equipment waste as well as to the constituent components or materials from which the units are made. Sec. 361.869. IMMUNITY FROM LIABILITY. An owner or operator of a landfill who disposes of electronic equipment or electronic equipment waste in a landfill is immune from liability under this code or the Water Code for disposing of the electronic equipment or electronic equipment waste in violation of this subchapter if: (1) the electronic equipment or electronic equipment waste was commingled with other solid waste; and (2) the owner or operator did not know when the owner or operator accepted the other solid waste for disposal that it was commingled with electronic equipment or electronic equipment waste. SECTION 2. Subchapter E, Chapter 7, Water Code, is amended by adding Section 7.1855 to read as follows: Sec. 7.1855. KNOWING UNAUTHORIZED DISPOSAL OF ELECTRONIC EQUIPMENT OR ELECTRONIC EQUIPMENT WASTE. (a) A person commits an offense if the person knowingly disposes of electronic equipment or electronic equipment waste in a manner that violates Subchapter X, Chapter 361, Health and Safety Code. (b) An offense under this section is a Class C misdemeanor. SECTION 3. (a) Each producer who is engaged in the sale or resale of electronic equipment in this state on September 1, 2005, must: (1) submit to the Texas Commission on Environmental Quality a plan required by Section 361.853, Health and Safety Code, as added by this Act, not later than March 1, 2006; (2) provide to the Texas Commission on Environmental Quality a financial guarantee required by Section 361.854(8), Health and Safety Code, as added by this Act, not later than the earlier of: (A) September 1, 2006; or (B) the date the producer's plan is approved under Section 361.863(c), Health and Safety Code, as added by this Act; (3) except as provided by Subdivision (4) of this subsection, implement a plan required by Section 361.853, Health and Safety Code, as added by this Act, not later than September 1, 2007; and (4) comply with Sections 361.857 and 361.859(b), Health and Safety Code, as added by this Act, not later than September 1, 2006. (b) Each state agency shall adopt policies under Section 361.866, Health and Safety Code, as added by this Act, not later than March 1, 2006. SECTION 4. (a) Except as otherwise provided by this section, this Act takes effect September 1, 2005. (b) Section 361.864, Health and Safety Code, as added by this Act, takes effect January 1, 2008. (c) Sections 361.868 and 361.869, Health and Safety Code, and Section 7.1855, Water Code, as added by this Act, take effect September 1, 2007.