81R2315 JJT-D

By: Allen 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.

(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. The term does not include a thermostat used to sense and control temperature as part of a manufacturing process.

(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. MANUFACTURER PROGRAMS FOR OUT-OF-SERVICE MERCURY-ADDED THERMOSTATS. (a) A manufacturer shall establish, finance, manage, and maintain a program for the collection, transportation, recycling, and disposal of out-of-service mercury-added thermostats in accordance with this subchapter, either individually or collectively with other manufacturers. Each manufacturer 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. 361.973. COLLECTION BINS. A manufacturer's program established under Section 361.972 shall:

(1) provide collection bins for out-of-service mercury-added thermostat collection to:

(A) wholesalers, at a cost not to exceed $25; 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 no cost to the local government; and

(2) arrange to:

(A) collect the contents of the collection bins provided under this section for proper handling, recycling, or disposal; or

(B) pay the costs of shipping the contents of the collection bins provided under this section for proper handling, recycling, or disposal.

Sec. 361.974. PROGRAM EDUCATION AND OUTREACH. (a) A manufacturer's program established under Section 361.972, in accordance with commission rules, shall:

(1) make a public service announcement promoting the proper management of out-of-service mercury-added thermostats and provide copies of the announcement to the commission for its use and promotion;

(2) establish and provide to the commission the address of a public Internet website through which visitors can easily download templates of educational materials;

(3) to encourage greater participation in the proper management of out-of-service mercury-added thermostats throughout this state, undertake to engage other stakeholders, including waste, demolition, heating, ventilation, and air-conditioning organizations, and appropriate state agencies and local governments;

(4) work with utilities 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;

(5) encourage utilities to include an educational insert in customers' utility bills;

(6) encourage wholesalers to support and participate in educating customers on the proper management of out-of-service mercury-added thermostats;

(7) encourage retailers' support and participation in educating consumers on the proper management of out-of-service mercury-added thermostats; and

(8) undertake other educational or outreach efforts required by commission rule.

(b) This section expires January 1, 2013.

Sec. 361.975. EDUCATIONAL AND OUTREACH MATERIALS. (a) A manufacturer's program established under Section 361.972, in accordance with commission rules, shall develop, update as necessary, and make available to retailers, wholesalers, and 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 and templates of materials for reproduction by retailers and wholesalers to be provided to the consumer at the time of purchase or delivery of a thermostat that include information on:

(A) prohibited methods of disposing of mercury-added thermostats;

(B) proper management of out-of-service mercury-added thermostats; and

(C) locations where out-of-service mercury-added thermostats are collected for proper handling, recycling, or disposal;

(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 mercury-added thermostat is purchased.

Sec. 361.976. COLLECTION INCENTIVES AND EDUCATION. A manufacturer's program established under Section 361.972 shall provide incentives and education to contractors, service technicians, and homeowners to encourage the return of out-of-service mercury-added thermostats to established points of collection.

Sec. 361.977. PROGRAMMABLE REPLACEMENT THERMOSTATS. A manufacturer's program established under Section 361.972 shall encourage the purchase of programmable thermostats that comply with applicable building codes and that qualify for the Energy Star program of the United States Environmental Protection Agency as replacements for mercury-added thermostats.

Sec. 361.978. PROGRESS REPORT. On or before April 1 of each year, a manufacturer, through a program established under Section 361.972, 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) beginning with the report due April 1, 2014, a comparison to the performance standards for collection established under Section 361.986;

(5) 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;

(6) a description of the outreach strategies employed to increase participation and collection rates;

(7) examples of outreach and educational materials used;

(8) names and locations of all participating points of collection;

(9) the number of out-of-service mercury-added thermostats collected at each point of collection;

(10) the Internet website address at which the annual report may be viewed online;

(11) a description of how the collected out-of-service mercury-added thermostats were managed; and

(12) modifications that the manufacturer is proposing to make in its collection and recycling program.

Sec. 361.979. 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 1 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 mercury-added thermostats shall monitor the commission's Internet website to determine whether the sale of a manufacturer's thermostats is in compliance with this subchapter.

Sec. 361.980. 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. 361.981. 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. 361.982. WHOLESALER DISTRIBUTION OF EDUCATIONAL AND OUTREACH MATERIALS. A wholesaler shall distribute the educational and outreach materials developed and made available under Section 361.975 to its customers.

Sec. 361.983. CONTRACTOR RESPONSIBILITIES. A contractor who installs heating, ventilation, and air-conditioning components and who removes a mercury-added thermostat shall handle the thermostat in accordance with rules adopted under this subchapter and take the thermostat to a point of collection with a collection bin operating in accordance with those rules.

Sec. 361.984. RESPONSIBILITIES OF PERSON WHO DEMOLISHES BUILDING. A person who demolishes a building shall remove any mercury-added thermostats from the building before demolition in accordance with all applicable rules adopted under this subchapter and take the thermostats to a point of collection that is authorized to collect out-of-service mercury-added thermostats.

Sec. 361.985. COMMISSION ORDER. The commission may order a manufacturer or group of manufacturers operating a program to revise the program and to take other necessary actions to comply with this subchapter.

Sec. 361.986. COMMISSION PERFORMANCE STANDARDS. The commission by rule shall:

(1) develop performance standards that specify collection rates expressed as a percentage of out-of-service mercury-added thermostats becoming waste annually; and

(2) establish a methodology to estimate the number of out-of-service mercury-added thermostats becoming waste annually.

Sec. 361.987. SURVEY REGARDING MERCURY-ADDED THERMOSTATS THAT BECOME WASTE. (a) Not later than March 1, 2010, a manufacturer or group of manufacturers operating a program shall present to the commission a survey plan and methodology for a survey to provide statistically valid data on the number of mercury-added thermostats made by the manufacturer or group of manufacturers that become waste annually in this state.

(b) The manufacturer or group of manufacturers shall complete the survey not later than December 1, 2010, and shall present all of the survey information to the commission not later than December 31, 2010.

(c) This section expires January 1, 2011.

SECTION 2. (a) A manufacturer's program established under Section 361.972, Health and Safety Code, as added by this Act, is required to provide collection bins as provided by Section 361.973, Health and Safety Code, as added by this Act, only on and after July 1, 2010.

(b) A manufacturer's program established under Section 361.972, Health and Safety Code, as added by this Act, is required to perform the duties provided by Section 361.974, Health and Safety Code, as added by this Act, only on and after July 1, 2010.

(c) A manufacturer's program established under Section 361.972, 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 361.975, 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 361.979, Health and Safety Code, as added by this Act, on July 1, 2010.

(f) The Texas Commission on Environmental Quality shall adopt the commission's performance standards and methodology required by Section 361.986, Health and Safety Code, as added by this Act, not later than January 1, 2013.

SECTION 3. This Act takes effect September 1, 2009.