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By:  Bonnen                                                       H.B. No. 2793


A BILL TO BE ENTITLED
AN ACT
relating to the removal and collection of convenience switches from motor vehicles; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle B, Title 5, Health and Safety Code, is amended by adding Chapter 375 to read as follows:
CHAPTER 375. REMOVAL OF CONVENIENCE SWITCHES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 375.001. DEFINITIONS. In this chapter: (1) "Capture rate" means the annual number of convenience switches removed, collected, and recovered, expressed as a percentage of the number of convenience switches available for removal in that year from end-of-life vehicles. (2) "Commission" means the Texas Commission on Environmental Quality. (3) "Convenience switch" means a capsule, commonly known as a bullet, that is part of a convenience light switch assembly which, because of its contents, is the type of switch subject to U.S. Environmental Protection Agency work practice standards, such as those promulgated in Title 40, Code of Federal Regulations, Section 63.7700(c)(2) or subsequent rulemaking. (4) "Convenience switch recovery plan" means a plan for removing, collecting, and recovering convenience switches from end-of-life vehicles in accordance with Subchapter B. (5) "End-of-life vehicle" means a vehicle that: (A) has not been intentionally flattened, crushed, shredded, or baled; and (B) is sold, given, or otherwise conveyed to a vehicle recycler or scrap metal recycling facility for the purpose of recycling. (6) "Executive director" means the executive director of the commission. (7) "Manufacturer" means: (A) a person who is the last entity in the production or assembly process of a new vehicle; or (B) the importer or domestic distributor of the vehicle, in the case of an imported vehicle. (8) "Scrap metal recycling facility" means a facility at a fixed location that uses equipment to process and refabricate scrap metal into prepared grades and principally produces scrap iron, scrap steel, or nonferrous metallic scrap for sale. (9) "Vehicle" means any automobile, station wagon, truck, van, or sport utility with a gross vehicle weight rating of less than 12,000 pounds. (10) "Vehicle recycler" means a person engaged in the business of acquiring, dismantling, or preparing for recycling six or more end-of-life vehicles in a calendar year for the primary purpose of reselling the vehicles' parts. The term includes a salvage vehicle dealer licensed under Chapter 2302, Occupations Code. Sec. 375.002. APPLICABILITY OF CHAPTER. This chapter applies only to: (1) a manufacturer of vehicles sold in this state; and (2) a vehicle recycler or scrap metal recycling facility in this state.
[Sections 375.003-375.050 reserved for expansion]
SUBCHAPTER B. CONVENIENCE SWITCH RECOVERY PLAN
Sec. 375.051. DEVELOPMENT OF PLAN. (a) Each manufacturer of vehicles sold in this state, individually or as part of a group, and in consultation with the commission, shall develop a convenience switch recovery plan in accordance with this subchapter and shall submit the plan to the executive director for review and approval. (b) The executive director shall notify each manufacturer of the requirement to develop a convenience switch recovery plan and submit the plan to the executive director for approval. Sec. 375.052. CONVENIENCE SWITCH RECOVERY PLAN CONTENTS. (a) The convenience switch recovery plan shall include: (1) for each make, model, and model year of a vehicle: (A) information identifying the make, model, and year; (B) a description of each convenience switch used; (C) a system to mark a vehicle to indicate the presence or absence of a convenience switch; (D) the location on the vehicle of each convenience switch; (E) the safe and environmentally sound methods for removing a convenience switch from an end-of-life vehicle; and (F) the number of convenience switches available in the vehicle, for purposes of computing the capture rate. (2) educational materials to assist a vehicle recycler or scrap metal recycling facility in following a safe and environmentally sound method to remove convenience switches from end-of-life vehicles, including educational materials on hazards presented by the content of a convenience switch and the proper handling of that content; (3) methods for recycling or disposing of the manufacturer's convenience switches, including the method of packaging and shipping a convenience switch to an authorized recycling, storage, or disposal facility; (4) methods for the storage of a convenience switch collected and recovered from an end-of-life vehicle if environmentally appropriate recycling or disposal technologies are not available; and (5) a plan for implementing and financing the removal, collection, and recovery program. (b) To the extent possible, a convenience switch recovery plan must use existing end-of-life vehicle infrastructure. If that infrastructure is not used, the plan must include reasons for establishing a separate infrastructure. Sec. 375.053. FINANCING OF COSTS. A convenience switch recovery plan must provide for financing by the manufacturer of the removal, collection, and recovery of convenience switches from a vehicle of the manufacturer in a way that ensures that a financial burden is not imposed on the commission or on an automobile dealer or business that recycles, handles, or otherwise processes end-of-life vehicles. Sec. 375.054. FEE. Each manufacturer's convenience switch recovery plan must include a procedure that ensures the prompt payment to a vehicle recycler, scrap metal recycling facility, or the commission of a fee paid by the manufacturer to cover the costs associated with convenience switch removal and disposal. The payments must include: (1) a minimum of $5 for each convenience switch removed by a vehicle recycler or scrap metal recycling facility in accordance with Section 375.101 as compensation for the labor and other costs incurred in the removal of the convenience switch; and (2) $1 for each convenience switch removed by a vehicle recycler or scrap metal recycling facility in accordance with Section 375.101 as compensation to the commission for costs incurred in administering and enforcing the provisions of this chapter. Sec. 375.055. PACKAGING, SHIPPING, AND RECYCLING COSTS. The manufacturer's plan must include financing to pay the costs of: (1) packaging, shipping, and removal of convenience switches to recycling, storage, or disposal facilities; and (2) recycling, storing, or disposing of removed convenience switches. Sec. 375.056. COSTS OF EDUCATIONAL MATERIALS. The manufacturer's plan must provide financing for the preparation of educational materials required under Section 375.052 and the distribution of those materials to each vehicle recycler and scrap metal recycling facility. Sec. 375.057. COSTS OF RECORDS MAINTENANCE. The manufacturer's plan must provide financing for the costs of maintaining all record-keeping systems associated with the implementation of this chapter. Sec. 375.058. FEE INCREASES AS NEEDED. The executive director shall increase a fee under Section 375.054 to an appropriate level on a determination by the executive director that the amount being collected is not sufficient to ensure the proper removal and management of convenience switches. Sec. 375.059. STORAGE AND REIMBURSEMENT. (a) Each manufacturer, individually or as part of a group, shall provide to each vehicle recycler and scrap metal recycling facility containers suitable for the safe storage of convenience switches until the vehicle recycler or scrap metal recycling facility can be reimbursed for the costs of removal, storage, packaging, and shipping of the switches. (b) A vehicle recycler or scrap metal recycling facility is entitled to reimbursement by the manufacturer of a vehicle for each convenience switch removed from the vehicle in the amount specified by Section 375.054 or by the executive director under Section 375.058 regardless of the date on which a switch is removed from a vehicle if the vehicle recycler or scrap metal recycling facility maintains the records required by Section 375.101 or 375.102. Sec. 375.060. INDEMNIFICATION OF VEHICLE RECYCLERS AND SCRAP METAL RECYCLING FACILITIES. A manufacturer shall indemnify, defend, and hold harmless a vehicle recycler or scrap metal recycling facility from liability for any damages arising from the release of the contents of a convenience switch after the switch is transferred to the manufacturer or the manufacturer's agent or contractor. Sec. 375.061. PLAN APPROVAL PROCESS. (a) Not later than the 60th day after the date on which a convenience switch recovery plan is received by the commission, the executive director shall approve or disapprove all or part of the plan or may approve the plan conditionally. In considering the plan, the executive director may seek comments or information from interested persons, including representatives of vehicle recyclers and scrap metal recycling facilities. (b) If the executive director approves an entire convenience switch recovery plan, the manufacturer shall begin implementing the plan not later than the 30th day after the date on which the manufacturer receives notice of the approval, unless the manufacturer and the executive director have agreed to a different date to initiate the plan. (c) If the executive director disapproves an entire convenience switch recovery plan, the executive director shall provide the manufacturer with a list of the plan's deficiencies. The manufacturer must submit a new convenience switch recovery plan not later than the 30th day after the date on which the list of deficiencies is received. (d) If only part of a convenience switch recovery plan is approved, the manufacturer shall implement the approved part as instructed by the executive director and shall submit a revised plan not later than the 30th day after the date on which the notice of partial approval is received. (e) The executive director shall review and approve, partly approve, or disapprove a revised convenience switch recovery plan not later than the 30th day after the date on which the revised plan is received. (f) If a plan has not been fully approved on or before the 180th day after the date on which notice to manufacturers was sent under Section 375.051, the executive director may complete on behalf of a manufacturer any part of a convenience switch recovery plan that the executive director has not approved. (g) The executive director may review an approved convenience switch recovery plan and recommend modifications to the plan at any time on a determination that the plan is deficient or is not accomplishing the objectives set out in this chapter in any material respect, including a determination that the fees under Section 375.054 are not sufficient to ensure the removal of each convenience switch.
[Sections 375.052-375.100 reserved for expansion]
SUBCHAPTER C. CONVENIENCE SWITCH RECOVERY PLAN IMPLEMENTATION
Sec. 375.101. REMOVAL AND MANAGEMENT OF CONVENIENCE SWITCHES. (a) In accordance with educational materials received under this chapter, a vehicle recycler shall remove all convenience switches from the vehicle as identified in the applicable convenience switch recovery plan before the vehicle recycler: (1) crushes, flattens, bales, or shreds an end-of-life vehicle; or (2) sells, gives, or otherwise conveys ownership of an end-of-life vehicle to: (A) a scrap metal recycling facility for recycling; or (B) any other person for purposes of crushing or other similar processing. (b) If damage to the vehicle makes a convenience switch inaccessible for removal, the vehicle recycler shall note the location of the damage and of the switch on the normal business records of the vehicle recycler. Except as provided by Subsection (c), a vehicle recycler may not deliver a vehicle that contains a convenience switch to a scrap metal recycling facility. (c) A scrap metal recycling facility may accept an end-of-life vehicle that contains a convenience switch by agreeing to remove the remaining convenience switch in accordance with the applicable convenience switch recovery plan before the vehicle is flattened, crushed, shredded, or baled. Sec. 375.102. VEHICLE RECYCLER AND SCRAP METAL RECYCLING FACILITY RECORDS. A vehicle recycler or scrap metal recycling facility that removes convenience switches under Section 375.101 shall maintain records documenting: (1) the number of convenience switches collected; (2) the total number of end-of-life vehicles accepted containing at least one convenience switch; (3) the total number of end-of-life vehicles processed for recycling; (4) the number of end-of-life vehicles, by make and model of each vehicle processed, from which a convenience switch was removed; (5) the number of end-of-life vehicles processed for recycling, by make and model of each end-of-life vehicle; (6) the total number of convenience switches collected from each make of end-of-life vehicle; and (7) the number of convenience switches that were inaccessible because of damage to the end-of-life vehicle. Sec. 375.103. INACCESSIBLE CONVENIENCE SWITCHES CONSIDERED IN CAPTURE RATE. For purposes of computing the capture rate, a convenience switch that is inaccessible because of damage to the vehicle is considered to be a convenience switch that was available for inspection or removal but was not inspected or removed. Sec. 375.104. LIMIT ON DUTIES OF VEHICLE RECYCLER OR SCRAP METAL RECYCLING FACILITY. (a) The commission shall not require a vehicle recycler or scrap metal recycling facility to undertake any action beyond the actions reasonably arising from obligations created under this chapter. (b) On request, the records required under Sections 375.101 and 375.102 must be made available to the commission for review. Sec. 375.105. HONEST CONVEYANCE; RECEIPT OF VEHICLE. (a) A person may not represent that a convenience switch has been removed from an end-of-life vehicle being conveyed for recycling or other processing if that person has not removed the convenience switch or unless the person has good cause to believe that another person has removed the convenience switch. (b) A scrap metal recycling facility or other person that acquires scrap metal, including scrap metal in the form of an intentionally flattened, crushed, shredded, or baled vehicle, is not considered to be in violation of this subchapter solely because a convenience switch is found in the scrap metal after acquisition. Sec. 375.106. HANDLING OF CONVENIENCE SWITCHES. After removal from a vehicle, a convenience switch shall be collected, stored, transported, and otherwise handled in accordance with: (1) the applicable convenience switch recovery plan; and (2) the applicable solid waste rules of the commission.
[Sections 375.107-375.150 reserved for expansion]
SUBCHAPTER D. REPORTS
Sec. 375.151. ANNUAL MANUFACTURER'S IMPLEMENTATION REPORT. (a) On or before December 31 of each year, each manufacturer shall present a report individually or as part of a group to the executive director on the manufacturer's convenience switch recovery plan. The report must include: (1) a detailed description and documentation of the capture rate achieved in comparison to the target rate of at least 90 percent, consistent with the principle that a convenience switch should be recovered unless damage to the vehicle makes the switch inaccessible; (2) a description of additional or alternative actions that may be implemented to improve the convenience switch recovery plan and the implementation of the plan, if the 90 percent capture rate is not achieved; (3) the number of convenience switches collected, the number of end-of-life vehicles containing convenience switches, and the number of end-of-life vehicles processed for recycling; (4) a description of how the convenience switches collected were managed; and (5) a summary of the amounts paid to cover the costs of implementing the convenience switch recovery plan. (b) The executive director may discontinue the requirement for an annual report under this section if the executive director determines that the convenience switches in end-of-life vehicles manufactured by a particular manufacturer no longer pose a significant threat to the environment or to public health. Sec. 375.152. ANNUAL MANUFACTURER'S DESIGN REPORT. (a) On or before December 31 of each year, a manufacturer shall report individually or as part of a group to the executive director concerning steps being taken by the manufacturer to design vehicles and vehicle components for recycling. The report must include: (1) a list of all vehicle components included in the manufacturer's vehicles for each of the last three model years, the current model year, and the upcoming model year that contain convenience switches or other components presenting similar environmental risks; (2) design changes that the manufacturer has implemented or is planning to implement to reduce or eliminate convenience switches or other components presenting similar environmental risks from the manufacturer's vehicles and the amount of any reductions; (3) policies the manufacturer has implemented to ensure that the manufacturer's vehicles are designed to be recycled in a safe, cost-effective, and environmentally sound manner using existing technologies and infrastructure; (4) a list of: (A) complaints and reports received by the manufacturer in the last 12 months from vehicle recyclers, scrap metal recycling facilities, government entities, or organizations representing any of those persons; and (B) other facts and circumstances that have made the manufacturer aware that the manufacturer's vehicles contain vehicle components that present environmental risks; and (5) the design or manufacturing changes that the manufacturer has implemented or plans to implement to reduce or remove each environmental risk listed under Subdivision (4) and the year in which those changes will eliminate that environmental risk. (b) The commission may: (1) periodically evaluate the steps manufacturers are taking to design for recycling; and (2) report to the governor, the lieutenant governor, the speaker of the house of representatives, and the chair of each standing committee of the legislature with jurisdiction over environmental issues the commission's findings under Subdivision (1) together with any recommended legislative action that may be appropriate to promote vehicle recycling in the interest of preserving scarce resources and the safe and efficient reduction of solid waste.
[Sections 375.153-375.200 reserved for expansion]
SUBCHAPTER E. RULES, PENALTIES, AND ENFORCEMENT
Sec. 375.201. RULES. (a) The commission shall adopt rules to implement this chapter, including rules governing the removal of a convenience switch under a convenience switch recovery plan. (b) This chapter does not limit the commission's authority to allow new or modified plans to be submitted and independently financed to facilitate the removal from end-of-life vehicles of any components that have contents that result in the emission of hazardous air pollutants if the contents are melted, similar to the emissions expected from the melting of a convenience switch. (c) To the extent authorized by federal law, in the development of emission trading programs, the commission shall recognize as creditable any emission reductions accomplished through implementation of this chapter, including any additional emission reductions accomplished through plans submitted under Subsection (b). Sec. 375.202. PENALTIES AND ENFORCEMENT. A person who violates a provision of this chapter, or a rule or order issued under this chapter, is subject to the penalty and enforcement provisions of Chapter 7, Water Code. SECTION 2. (a) The Texas Commission on Environmental Quality shall adopt rules to implement Chapter 375, Health and Safety Code, as added by this Act, not later than March 1, 2006. The rules adopted under this section shall include provisions for regulating a convenient switch, as defined by Section 375.001, Health and Safety Code, as added by this Act, as universal waste under Section 335.261, Title 30, Texas Administrative Code. (b) Until rules have been adopted and promulgated under Subsection (a) of this section, the commission shall regulate a convenience switch, as defined by Section 375.001, Health and Safety Code, as added by this Act, as a universal waste in accordance with 40 C.F.R. Part 273, and as incorporated by reference in Section 335.261, Title 30, Texas Administrative Code, for purposes of establishing the accumulation time limits. SECTION 3. (a) This section applies only to a manufacturer of a vehicle sold in this state as those terms are defined by Section 375.001. (b) Not later than 30 days after the effective date of this Act, the executive director of the Texas Commission on Environmental Quality shall notify each manufacturer of vehicles sold in this state of the requirement to submit a convenience switch recovery plan in accordance with Subchapter B, Chapter 375, Health and Safety Code, as added by this Act. (c) Not later than 60 days after the effective date of this Act, individually or as part of a group, a manufacturer shall provide containers as required by Section 375.059, as added by this Act, to each vehicle recycler and scrap metal recycling facility. (d) Each manufacturer shall submit a convenience switch recovery plan as required by Section 375.051, as added by this Act, to the executive director of the Texas Commission on Environmental Quality for review not later than 90 days after the effective date of this Act. (e) The initial reports described by Sections 375.151 and 375.152, Health and Safety Code, as added by this Act, shall be presented as required by those sections on or before December 31, 2006. SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.