81R30192 JJT-F
 
  By: Allen, Turner of Harris, Weber, Edwards H.B. No. 4056
 
  Substitute the following for H.B. No. 4056:
 
  By:  Farrar C.S.H.B. No. 4056
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the establishment of a program for the collection,
  transportation, recycling, and disposal of mercury-added
  thermostats.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 361, Health and Safety Code, is amended
  by adding Subchapter Z to read as follows:
  SUBCHAPTER Z. MERCURY-ADDED THERMOSTAT COLLECTION PROGRAM
         Sec. 361.971.  DEFINITIONS. In this subchapter:
               (1)  "Manufacturer" means a business concern that owns
  or owned a name brand of mercury-added thermostats sold in this
  state.
               (2)  "Mercury-added thermostat" means a thermostat
  that uses a mercury switch to sense and control room temperature
  through communication with heating, ventilating, or
  air-conditioning equipment in residential, commercial, industrial,
  or other buildings.  The term does not include a thermostat used to
  sense and control temperature as part of a manufacturing process.
               (3)  "Out-of-service mercury-added thermostat" means a
  mercury-added thermostat that is removed from a building in this
  state and is intended to be discarded.
               (4)  "Retailer" means a person who sells thermostats
  directly to a consumer through a selling or distribution mechanism,
  including a sale using a catalog or the Internet.
               (5)  "Thermostat" means a device that uses a switch to
  sense and control room temperature in a residential, commercial,
  industrial, or other building through communication with heating,
  ventilating, or air-conditioning equipment.
               (6)  "Wholesaler" means a person engaged in the
  distribution and wholesale selling of heating, ventilation, and
  air-conditioning components to contractors who install heating,
  ventilation, and air-conditioning components and whose total
  wholesale sales account for 80 percent or more of total sales. The
  term does not include a manufacturer.
         Sec. 361.972.  MERCURY-ADDED THERMOSTAT RECYCLING. A person
  who removes a mercury-added thermostat from service shall:
               (1)  handle the thermostat in accordance with this
  subchapter and rules adopted under this subchapter; and
               (2)  take the thermostat to a point of collection with a
  collection bin operating in accordance with this subchapter and
  rules adopted under this subchapter.
         Sec. 361.973.  MANUFACTURER PROGRAMS FOR OUT-OF-SERVICE
  MERCURY-ADDED THERMOSTATS. (a)  Each manufacturer of mercury-added
  thermostats that have been sold in this state shall, individually
  or collectively with other manufacturers, establish and maintain a
  collection and recycling program for out-of-service mercury-added
  thermostats. Each manufacturer, individually or collectively with
  other manufacturers, is responsible for collecting, handling,
  transporting, and recycling or disposing of out-of-service
  mercury-added thermostats through a program in accordance with this
  subchapter and rules adopted under this subchapter.
         (b)  A manufacturer or a group of manufacturers operating a
  program collectively may contract with a retailer to provide a
  point of collection for out-of-service mercury-added thermostats,
  either in the retailer's place of business or elsewhere.
         Sec. 361.974.  COLLECTION BINS. A manufacturer's program
  established under Section 361.973 shall:
               (1)  provide collection bins for out-of-service
  mercury-added thermostat collection to:
                     (A)  wholesalers, at a one-time administrative
  fee not to exceed $40; and
                     (B)  a local government that requests a collection
  bin for use at a household hazardous waste collection facility or a
  household hazardous waste event, at a one-time administrative fee
  not to exceed $40; and
               (2)  arrange for either:
                     (A)  the pickup of the contents of the collection
  bins provided pursuant to this section for proper handling and
  recycling; or
                     (B)  the payment of the costs of shipping the
  collection bins provided under this section for proper handling and
  recycling in accordance with the program.
         Sec. 361.975.  INITIAL PROGRAM EDUCATION AND OUTREACH.  (a)  
  A manufacturer's program established under Section 361.973, in
  accordance with commission rules, shall:
               (1)  establish and provide to the commission the
  address of a public Internet website through which visitors can
  easily download templates of educational materials;
               (2)  to encourage greater participation in the proper
  management of out-of-service mercury-added thermostats in this
  state, undertake to engage other stakeholders, including waste,
  demolition, heating, ventilation, and air-conditioning
  organizations, and appropriate state agencies and local
  governments;
               (3)  work with utilities or their contractors in this
  state that are participating in demand response programs involving
  thermostat replacement to encourage the utilities' participation
  in the collection and proper management of out-of-service
  mercury-added thermostats;
               (4)  encourage utilities to include an educational
  insert in customers' utility bills;
               (5)  encourage wholesalers to support and participate
  in educating customers on the proper management of out-of-service
  mercury-added thermostats;
               (6)  encourage retailers to support and participate in
  educating consumers on the proper management of out-of-service
  mercury-added thermostats; and
               (7)  undertake other educational or outreach efforts
  required by commission rule.
         (b)  This section expires January 1, 2012.
         Sec. 361.976.  EDUCATIONAL AND OUTREACH MATERIALS. (a)  A
  manufacturer's program established under Section 361.973, in
  accordance with commission rules, shall develop, update as
  necessary, and make available to participating retailers,
  participating wholesalers, and participating household hazardous
  waste programs educational and other outreach materials for:
               (1)  heating, ventilation, and air-conditioning
  contractors, demolition contractors, and associations of those
  contractors;
               (2)  utilities and local governments that provide
  utility services or household hazardous waste programs; and
               (3)  homeowners.
         (b)  Materials developed and made available under Subsection
  (a) must include at least one of the following:
               (1)  signs designed for prominent, easily visible
  display for viewing by consumers and contractors;
               (2)  written materials or templates of materials for
  reproduction by participating retailers and participating
  wholesalers to be provided to the consumer at the time of purchase
  or delivery of a thermostat that include information on:
                     (A)  prohibited generator methods of disposing of
  mercury-added thermostats;
                     (B)  proper management of out-of-service
  mercury-added thermostats;
                     (C)  locations where out-of-service mercury-added
  thermostats are collected for proper handling, recycling, or
  disposal; and
                     (D)  energy-efficient thermostats as replacements
  for mercury-added thermostats;
               (3)  advertising or promotional materials that inform
  about out-of-service mercury-added thermostat collection
  opportunities; or
               (4)  materials to be used in direct communications with
  the consumer and contractor at the time a thermostat is purchased.
         Sec. 361.977.  COLLECTION INCENTIVES AND EDUCATION.  A
  manufacturer's program established under Section 361.973 shall
  provide nonfinancial incentives and education to contractors and
  service technicians to encourage the return of out-of-service
  mercury-added thermostats to established points of collection.
         Sec. 361.978.  PROGRESS REPORT. (a)  On or before April 1 of
  each year, a manufacturer, through a program established under
  Section 361.973, shall submit to the commission and post on the
  program's Internet website a report that includes:
               (1)  the number of out-of-service mercury-added
  thermostats the program collected in this state during the
  preceding calendar year;
               (2)  the estimated total amount of mercury contained in
  the out-of-service mercury-added thermostats the program collected
  during the preceding calendar year;
               (3)  an evaluation of the effectiveness of the program;
               (4)  an accounting of the program's administrative
  costs that includes:
                     (A)  for a nonprofit organization's program, a
  copy of Internal Revenue Service Form 990; or
                     (B)  for a for-profit organization's program,
  independently audited financial statements detailing revenues and
  a full accounting of administrative costs incurred;
               (5)  a description of the outreach strategies employed
  to increase participation and collection rates;
               (6)  examples of outreach and educational materials
  used;
               (7)  names and locations of all participating points of
  collection;
               (8)  the number of out-of-service mercury-added
  thermostats collected at each point of collection;
               (9)  the Internet website address at which the annual
  report may be viewed online;
               (10)  a description of how the collected out-of-service
  mercury-added thermostats were managed; and
               (11)  beginning with the report due April 1, 2012, a
  comparison of collections to the collection goals established under
  this section.
         (b)  With the first progress report due under Subsection (a),
  a manufacturer, individually or collectively with other
  manufacturers, shall submit to the commission collection goals that
  ensure an increase in the number of mercury-added thermostats
  collected each year until 2016 or until a time the commission
  determines that the number of in-service mercury-added thermostats
  is steadily declining as a result of the ban on sales and
  installation of mercury-added thermostats.
         (c)  The commission shall use the progress reports required
  by this section to determine whether collection goals are being
  met. If collection goals are not met, the commission may require
  modifications to a manufacturer's collection plans in an attempt to
  improve collection rates.
         (d)  The manufacturer or group of manufacturers operating a
  program shall post the progress report submitted under this section
  on a public Internet website.
         (e)  The commission shall post progress reports submitted
  under this section on the commission's Internet website or provide
  a link to the public Internet website described by Subsection (d).
         (f)  The commission by rule shall establish a review
  procedure that includes:
               (1)  notice of the review procedure and timeline,
  including notice of the opportunity for public comment to be posted
  on the commission's Internet website; and
               (2)  a period for public comment that extends at least
  90 days from the date the commission posts progress reports
  submitted under this section.
         (g)  The commission shall review and consider the progress
  reports and the public comments submitted under this section. The
  commission shall consider each progress report's consistency with
  other thermostat manufacturers' collection programs in this state
  and in other states. The commission may consult with thermostat
  manufacturers, thermostat wholesalers, thermostat technicians,
  thermostat retailers, environmental interest groups, and local
  governments to solicit additional comments.
         (h)  The commission may discontinue the requirement for the
  progress report under this section if the commission finds, based
  on diminished returns of thermostats, that mercury-added
  thermostats no longer pose a threat to the environment and public
  health in this state.
         Sec. 361.979.  COMMISSION'S EDUCATION RESPONSIBILITIES.
  (a)  The commission may provide outreach to educate consumers
  regarding the collection and recycling requirement for
  out-of-service mercury-added thermostats.
         (b)  The commission shall provide a link on the commission's
  Internet website for a program operated by a manufacturer or group
  of manufacturers by which consumers, contractors, retailers, and
  wholesalers are provided information about the recycling of
  out-of-service mercury-added thermostats.
         Sec. 361.980.  THERMOSTAT SALES PROHIBITED; LIST OF
  NONCOMPLIANT MANUFACTURERS. (a)  A person may not sell or offer for
  sale in this state a thermostat that is produced by a manufacturer
  that has been listed on the commission's Internet website as a
  noncompliant manufacturer for 120 or more consecutive days.
         (b)  On January 2 and July 1 of each year, the commission
  shall post a list on its Internet website of manufacturers that are
  not in compliance with this subchapter.
         (c)  A wholesaler or retailer that distributes or sells
  thermostats shall monitor the commission's Internet website to
  determine whether the sale of a manufacturer's thermostat is in
  compliance with this subchapter.
         Sec. 361.981.  WHOLESALER DUTY: POINT OF COLLECTION.  A
  wholesaler that conducts business from a physical location in this
  state shall provide at each of its places of business in this state
  a point of collection for out-of-service mercury-added
  thermostats.
         Sec. 361.982.  DISTRIBUTION OF INFORMATION ON POINTS OF
  COLLECTION. A retailer or wholesaler that distributes new
  thermostats by mail to buyers in this state shall include with the
  sale of the new thermostat an Internet website address and
  toll-free telephone number with instructions on obtaining a prepaid
  mail-in label that a consumer may use to send an out-of-service
  mercury-added thermostat to a point of collection for mercury-added
  thermostats.
         Sec. 361.983.  WHOLESALER DISTRIBUTION OF EDUCATIONAL AND
  OUTREACH MATERIALS. A wholesaler shall distribute the educational
  and outreach materials developed and made available under Section
  361.976 to its customers.
         Sec. 361.984.  AIR-CONDITIONING AND REFRIGERATION
  CONTRACTOR RESPONSIBILITIES. (a)  In this section,
  "air-conditioning and refrigeration contractor" has the meaning
  assigned by Section 1302.002, Occupations Code.
         (b)  An air-conditioning and refrigeration contractor who
  removes a mercury-added thermostat shall:
               (1)  handle the thermostat in accordance with this
  subchapter and rules adopted under this subchapter; and
               (2)  take the thermostat to a point of collection with a
  collection bin operating in accordance with this subchapter and
  rules adopted under this subchapter.
         Sec. 361.985.  MANUFACTURERS' COMPLIANCE ASSURANCE.  The
  commission may require a manufacturer or group of manufacturers
  operating a program established under Section 361.973 to revise the
  collection and recycling program and to take other necessary
  actions to comply with this subchapter.
         Sec. 361.986.  AIR-CONDITIONING AND REFRIGERATION
  CONTRACTOR COMPLIANCE. (a)  In this section, "air-conditioning and
  refrigeration contractor" has the meaning assigned by Section
  1302.002, Occupations Code.
         (b)  The commission is responsible for ensuring compliance
  with Section 361.984.
         (c)  The Texas Department of Licensing and Regulation shall
  refer to the commission any complaints filed with that department
  and any other information obtained by that department against an
  air-conditioning and refrigeration contractor related to a
  violation of Section 361.984.
         Sec. 361.987.  COMMISSION REPORT.  Not later than August 1 of
  each year, the commission shall compile information from progress
  reports and comments received under Section 361.978 and issue an
  electronic report to the committee in each house of the legislature
  that has primary jurisdiction over environmental matters.
         Sec. 361.988.  SIGNAGE ON RECYCLING COLLECTION REQUIREMENT.
  An operator of a solid waste treatment, processing, or disposal
  facility shall notify the facility's customers of the requirement
  under Section 361.972 to take an out-of-service mercury-added
  thermostat to a point of collection by posting at the facility signs
  that clearly note the requirement.
         SECTION 2.  (a) A manufacturer's program established
  individually or collectively under Section 361.973, Health and
  Safety Code, as added by this Act, is required to provide collection
  bins as provided by Section 361.974, Health and Safety Code, as
  added by this Act, only on and after July 1, 2010.
         (b)  A manufacturer's program established individually or
  collectively under Section 361.973, Health and Safety Code, as
  added by this Act, is required to perform the duties provided by
  Section 361.975, Health and Safety Code, as added by this Act, only
  on and after July 1, 2010.
         (c)  A manufacturer's program established individually or
  collectively under Section 361.973, Health and Safety Code, as
  added by this Act, is required to develop, update, and make
  available educational and outreach materials as provided by Section
  361.976, Health and Safety Code, as added by this Act, only on and
  after July 1, 2010.
         (d)  The first progress report required by Section 361.978,
  Health and Safety Code, as added by this Act, is due April 1, 2011.
         (e)  The Texas Commission on Environmental Quality shall
  begin posting the commission's list of noncompliant manufacturers
  as provided by Section 361.980, Health and Safety Code, as added by
  this Act, on July 1, 2010.
         (f)  The Texas Commission on Environmental Quality shall
  issue the first report required by Section 361.987, Health and
  Safety Code, as added by this Act, not later than August 1, 2011.
         SECTION 3.  This Act takes effect September 1, 2009.