82R22978 KJM-D

By: Allen, Reynolds, et al. H.B. No. 695

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) "Air-conditioning and refrigeration contractor" has the meaning assigned by Section 1302.002, Occupations Code.

(2) "Manufacturer" means a business concern that owns or owned a name brand of mercury-added thermostats sold in this state.

(3) "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.

(4) "Out-of-service mercury-added thermostat" means a mercury-added thermostat that is removed from service in this state and is intended to be discarded.

(5) "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.

(6) "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.

(7) "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;

(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; and

(3) dispose of the thermostat only by recycling the thermostat in a manner described by 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.

(c) A retailer participating in a manufacturer's program under this section by providing a point of collection for out-of-service mercury-added thermostats shall post at the collection site prominent, easily visible signs that provide information about the collection and recycling of out-of-service mercury-added thermostats.

(d) A manufacturer may not sell, offer for sale, or distribute in this state any thermostats unless the manufacturer complies with this subchapter and the rules adopted under this subchapter.

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;

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

(4) encourage retailers to support and participate in educating consumers on the proper management of out-of-service mercury-added thermostats.

(b) This section expires January 1, 2014.

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) local governments that provide 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; or

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

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

Sec. 361.977. 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 total number of out-of-service mercury-added thermostats collected;

(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, 2014, 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 2018 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 and the requirements of Section 361.976 if the commission finds, based on diminished returns of thermostats, that additional education and reporting requirements would result in only a de minimis number of out-of-service mercury-added thermostats being returned in this state.

Sec. 361.978. 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. 361.979. THERMOSTAT SALES OR DISTRIBUTION PROHIBITED; LIST OF NONCOMPLIANT MANUFACTURERS. (a) A person, including a manufacturer, wholesaler, or retailer, may not sell, offer for sale, or distribute in this state:

(1) a mercury-added thermostat; or

(2) 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. 361.980. THERMOSTAT INSTALLATION PROHIBITED. A person may not install a mercury-added thermostat.

Sec. 361.981. WHOLESALER DUTY: POINT OF COLLECTION. (a) A wholesaler may not sell, offer for sale, or distribute in this state any thermostats unless the wholesaler:

(1) provides at each of its places of business in this state a point of collection for out-of-service mercury-added thermostats if the wholesaler conducts business from a physical location in this state;

(2) participates as a collection site in a manufacturer's collection program as described under Section 361.973; or

(3) otherwise collects out-of-service mercury-added thermostats in accordance with applicable state and federal law.

(b) A wholesaler that provides a collection site shall post at the collection site prominent, easily visible signs that provide information about the collection and recycling of 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. 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) The commission is responsible for ensuring compliance with Section 361.984.

(b) 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 361.977 and issue an electronic report to the committee in each house of the legislature that has primary jurisdiction over environmental matters.

Sec. 361.988. DISPOSAL AND TRANSPORTATION REQUIREMENT. (a) An owner or operator of a solid waste treatment, processing, or disposal facility is not in violation of this subchapter or a rule adopted under this subchapter if the owner or operator:

(1) posts in a conspicuous location a sign stating that mercury-added thermostats are not accepted at the facility and must be taken to a point of collection; and

(2) notifies in writing at least once each calendar year until December 31, 2014, each solid waste collector who has contracted to dispose of waste at the facility that mercury-added thermostats are not accepted for disposal in a solid waste treatment, processing, or disposal facility.

(b) A commercial transporter of solid waste who transports waste to a solid waste treatment, processing, or disposal facility is not in violation of this subchapter or a rule adopted under this subchapter if the transporter notifies in writing at least once each calendar year until December 31, 2014, each person who has contracted directly with the transporter for the transportation of solid waste that mercury-added thermostats are not accepted for disposal in a solid waste treatment, processing, or disposal facility.

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, 2012.

(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, 2012.

(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, 2012.

(d) The first progress report required by Section 361.977, Health and Safety Code, as added by this Act, is due April 1, 2013.

(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, 2012.

(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, 2013.

SECTION 3. This Act takes effect September 1, 2011.