By: Phillips H.B. No. 2896
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and recycling of scrap metal components
by the Texas Department of Transportation; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 14, Occupations Code, is
amended by adding Chapter 2307 to read as follows:
CHAPTER 2307. REMOVAL OF CONVENIENCE SWITCHES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2307.001. DEFINITIONS. In this chapter:
(1) "Department" means the Texas Department of
Transportation.
(2) "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.
(3) "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.
(4) "Vehicle" means any automobile, station wagon,
truck, van, or sport utility with a gross vehicle weight rating of
less than 12,000 pounds.
(5) "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.
(6) "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.
(7) "Convenience switch" means a capsule, commonly
known as a bullet, that is part of a motor vehicle 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.
(8) "Convenience switch recovery plan" means a plan
for removing, collecting, and recovering convenience switches from
end-of-life vehicles in accordance with Subchapter B.
(9) "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.
(10) "Commission" means the Texas Commission on
Environmental Quality.
Sec. 2307.002. 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 2307.003-2307.050 reserved for expansion]
SUBCHAPTER B. CONVENIENCE SWITCH RECOVERY PLAN
Sec. 2307.051. DEVELOPMENT OF PLAN. (a) Each manufacturer
of vehicles sold in this state, individually or as part of a group,
and in consultation with the department, shall develop a
convenience switch recovery plan in accordance with this subchapter
and shall submit the plan to the department for review and approval.
(b) The department shall notify each manufacturer of the
requirement to develop a convenience switch recovery plan and
submit the plan to the department for approval.
Sec. 2307.052. 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) 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. 2307.053. 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 department, the commission, or on an
automobile dealer or business that recycles, handles, or otherwise
processes end-of-life vehicles.
Sec. 2307.054. 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 department 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 2307.101 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 2307.101 as compensation to the department for costs
incurred in administering and enforcing the provisions of this
chapter.
Sec. 2307.055. PACKAGING, SHIPPING, AN 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. 2307.056. COSTS OF EDUCATIONAL MATERIALS. The
manufacturer's plan must provide financing for the preparation of
educational materials required under Section 2307.052 and the
distribution of those materials to each vehicle recycler and scrap
metal recycling facility.
Sec. 2307.057. 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. 2307.058. FEE INCREASES AS NEEDED. The department
shall increase a fee under Section 2307.054 to an appropriate level
on a determination by the department that the amount being
collected is not sufficient to ensure the proper removal and
management of convenience switches.
Sec. 2307.059. 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 2307.054 or by the department under Section 2307.058
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 2307.101 or 2307.102.
Sec. 2307.060. 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. 2307.061. PLAN APPROVAL PROCESS. (a) Not later than
the 60th day after the date on which a convenience switch recovery
plan is received, the department shall approve or disapprove all or
part of the plan or may approve the plan conditionally. In
considering the plan, the department may seek comments or
information from interested persons, including representatives of
vehicle recyclers and scrap metal recycling facilities.
(b) If the department 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
department have agreed to a different date to initiate the plan.
(c) If the department disapproves an entire convenience
switch recovery plan, the department 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 department shall provide the manufacturer with notice
setting forth the parts of the plan that are approved and the parts
of the plan that are disapproved, including a list of deficiencies
for the parts disapproved. The manufacturer shall implement the
approved part as instructed by the department and shall submit a
revised plan not later than the 30th day after the date on which the
notice of partial approval and list of deficiencies is received.
(e) The department 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 2307.051, the department may complete on behalf of a
manufacturer any part of a convenience switch recovery plan that
the department has not approved.
(g) The department 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 2307.054 are not sufficient to ensure the removal of each
convenience switch.
[Sections 2307.052-2307.100 reserved for expansion]
SUBCHAPTER C. CONVENIENCE SWITCH RECOVERY PLAN IMPLEMENTATION
Sec. 2307.101. 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. 2307.102. VEHICLE RECYCLER AND SCRAP METAL RECYCLING
FACILITY RECORDS. A vehicle recycler or scrap metal recycling
facility that removes convenience switches under Section 2307.101
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. 2307.103. 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. 2307.104. LIMIT ON DUTIES OF VEHICLE RECYCLER OR SCRAP
METAL RECYCLING FACILITY. (a) Neither the department nor the
commission shall 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
2307.101 and 2307.102 must be made available to the department for
review.
Sec. 2307.105. 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. 2307.106. 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.
[Section 2307.107-2307.150 reserved for expansion]
SUBCHAPTER D. REPORTS
Sec. 2307.151. 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 department 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 department may discontinue the requirement for an
annual report under this section if the department 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. 2307.152. 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 department 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 department 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 department'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 2307.153-2307.200 reserved for expansion]
SUBCHAPTER E. RULES, PENALTIES, AND ENFORCEMENT
Sec. 2307.201. RULES. (a) The Texas Transportation
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 department's authority
or 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 to the
department under Subsection (b).
Sec. 2307.202. ADMINISTRATIVE PROCEEDINGS AND PENALTY. (a)
The department may impose administrative penalties on a
manufacturer that violates any provision of this chapter. An
administrative action is in addition to any action under Section
2307.203.
(b) The amount of an administrative penalty may not exceed
$10,000 for each violation. Each day a violation continues or
occurs is a separate violation for purposes of imposing a penalty.
(c) In determining the amount of the penalty, the department
shall consider:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and
gravity of any prohibited act; and
(B) the hazard or potential hazard to the health,
safety, or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) An administrative penalty may be imposed under this
chapter only after the person charged with a violation is given an
opportunity for an administrative hearing.
(e) If the person requests a hearing or fails to respond
timely to notice, the department shall set a hearing and give notice
of the hearing to the person.
(f) A hearing set by the department under Subsection (e)
shall be held by an administrative law judge of the State Office of
Administrative Hearings.
(g) The administrative law judge shall:
(1) make findings of fact and conclusions of law; and
(2) issue to the department a proposal for a decision
as to the occurrence of the violation and the amount of any proposed
administrative penalty.
(h) Based on the findings of fact, conclusions of law, and
proposal for a decision under subsection (g), the department by
order may:
(1) determine that a violation has occurred and impose
an administrative penalty; or
(2) determine that a violation has not occurred.
(i) The department may increase or decrease the amount of
the penalty recommended by the administrative law judge.
(j) If the person does not appear for the hearing, the
department may impose a penalty and issue an order that the penalty
be paid after the department has determined that a violation
occurred.
(k) Not later than the 30th day after the date the
department's order becomes final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review.
(l) An administrative penalty owed under this subchapter
may be recovered in a civil action brought by the attorney general
at the request of the department.
Sec. 2307.203. INJUNCTION; CIVIL PENALTY. (a) If a person
has violated this chapter or a rule or order adopted under this
chapter, the department or the attorney general at the request of
the department may institute an action for:
(1) injunctive relief;
(2) a civil penalty not to exceed $1,000 for each
violation, where each day a violation continues or occurs
constitutes a separate violation; or
(3) both injunctive relief and the civil penalty.
(b) If the department or the attorney general prevails in an
action under this section, the department or the attorney general
is entitled to recover reasonable attorney's fees and court costs.
SECTION 2. (a) The Texas Transportation Commission shall
adopt rules to implement Chapter 2307, Occupations Code, as added
by this Act, not later than March 1, 2006.
(b) The Texas Commission on Environmental Quality shall
adopt rules for regulating convenience switches, as defined by
Section 2307.001, Occupations Code, as added by this Act, as
universal waste under Section 335.261, Title 30, Texas
Administrative Code.
(c) Until rules have been adopted and promulgated under
Subsection (b) of this section, the Texas Commission on
Environmental Quality shall regulate a convenience switch, as
defined by Section 2307.001, Occupations 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 2307.001, Occupations Code, as added by this Act.
(b) Not later than 30 days after the effective date of this
Act, the Texas Department of Transportation 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 2307, Occupations 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 2307.059, Occupations
Code, 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 2307.051, as added by this Act,
to the Texas Department of Transportation for review not later than
90 days after the effective date of this Act.
(e) The initial reports described by Sections 2307.151 and
2307.152, Occupations 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 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.