PETITION OF:

SECTION 1.

The General Laws are hereby amended by inserting after chapter 21M the following new chapter:-

CHAPTER 21N. RECYCLING ELECTRONIC PRODUCTS

Section 1. Definitions. For the purposes of this chapter the following words shall have the following meanings:

“Auditor” means a certified public accountant who conducts an examination of records in accordance with generally accepted accounting principles and auditing standards for the purpose of expressing a qualified opinion thereon.

“Cathode ray tube” or “CRT” means a vacuum tube or picture tube used to convert an electronic signal into a visual image.

“Collection system” means the system for the collection, packaging, transportation, and recycling of products discarded by consumers.

"Computer monitor" means a cathode ray tube or flat panel display primarily intended to display information from a central processing unit (CPU), network, or the internet.

"Consolidation facility" means a facility where discarded electronic products are consolidated and temporarily stored while awaiting shipment to a processor and includes a transport vehicle owned or leased by a processor used to collect covered electronic products at municipal collection sites in this state.

"Covered electronic product" means a cathode ray tube, a product containing a cathode ray tube, a Liquid Crystal Display (LCD) or other flat panel television or computer monitor, a computer central processing unit that contains one or more circuit boards and includes a desktop computer or a laptop computer, printers, scanners, and card readers, but does not include an automobile, a household appliance, a large piece of commercial, governmental or industrial equipment, such as commercial medical equipment or governmental security screening equipment, that contains a cathode ray tube, a cathode ray tube product, a flat panel display or similar video display device that is contained within, and is not separate from, the larger piece of equipment, or other medical products as that term is defined under the Federal Food, Drug, and Cosmetic Act.

"Department'' means the department of environmental protection.

“Environmentally sound recycling” means collection and recycling that meets the standards established by the department.

"Municipal collection site" means a municipally owned solid waste transfer station or recycling center, including a facility owned by a consortium of municipalities or a facility that is under contract with a municipality or consortium of municipalities to provide solid waste management services.

"Orphan waste" means a covered electronic product, the producer of which cannot be identified or is no longer in business and has no successor in interest as determined by the department.

“Processor” means a person or company that collects and processes covered electronic products for disposal, reuse and recycling.

"Producer" means a person or company, irrespective of sales technique or channels used to sell their products, including mail order, internet, or other means of distance communication, that manufactures or manufactured, and sells or sold, covered electronic products under its own brand; or resells or resold, under its own brand a covered electronic product produced by others; or manufactures or manufactured, and sells or sold, covered electronic products without affixing a brand. A reseller shall not be regarded as the producer of the brand if the brand of the actual producer appears on the product.

"Recycling and dismantling facility" means a business that processes covered electronic products for reuse and recycling.

"Recycling" means the use of materials contained in previously manufactured goods as feedstock for new products, but not for energy recovery or energy generation by means of combustion.

"Retailer" includes, but is not limited to, a business or an individual or a producer of a covered electronic product that sells directly to a consumer through any means, including, but not limited to, transactions conducted through sales outlets, catalogs or the internet, or any similar electronic means, but not including wholesale transactions with a distributor or other retailer.

“Return share” means a percentage of all covered electronic products collected calculated by return weight differentiated by producer; each producer shall have the return share represented by the brands it sells among the type of products it manufactures.

Section 2. Sales prohibition. As of January 1, 2009, the following sales prohibitions shall apply to producers and retailers of covered electronic products:

(a) A producer not in compliance with this chapter is prohibited from offering any product for sale in the commonwealth and shall provide the necessary support to retailers to ensure the producer's products are not offered for sale in the commonwealth.

(b) A retailer may not offer for sale in the commonwealth any product of a producer not in compliance with sections this chapter.

(c) A producer may not offer for sale a covered electronic product unless a visible, permanent label clearly identifying the producer of that product is affixed to the product.

(d) Any person offering for sale in the commonwealth any product of a producer not in compliance with this chapter shall be subject to the penalties in section 11.

Section 3. Producer responsibility. Producers shall have the financial responsibility for the collection and recycling of their covered electronic products which have been discarded in the commonwealth, including their return share of orphan waste. Producers may recycle their covered electronic products by establishing a recycling program, either individually or in cooperation, to collect these products at their end of life as established in this section. Any such program shall adhere to all applicable worker health and safety and environmental laws, all sections of this chapter regarding recycling and export, and all regulations regarding the recycling of covered electronic products promulgated by the department. Producers shall be financially responsible for their covered electronic products, as well as their share of orphan products, through the program established in this chapter.

(a) Municipalities are not required to participate in this program.

(1) Municipalities that choose not to participate in this program are not entitled to any compensation provided for under this chapter.

(2) This program shall begin on January 1, 2008.  Biennially, municipalities that choose to participate in this program shall survey and record the weight of all collected covered electronic products, differentiated by producer, in the calendar year immediately preceding the year the report is due to the department.  In the first year of the program, participating municipalities shall survey and record the weight of all collected covered electronic products, differentiated by producer, for the calendar year 2008 and report to the department in 2009.

(3)  Municipalities may conduct this survey individually or in cooperation with other municipalities, or through a third party.

(4) In the case of cooperative collection or use of a third party, all cooperating parties shall ensure that each covered electronic product is counted once, and only once.

(5) The municipality, or collective on behalf of the municipality, shall report to the department the total weight collected, differentiated by producer, by March 1 of the year immediately after the year the municipality surveyed and recorded the weight of all collected covered electronic products, differentiated by producer.

(b) Processors are not required to participate in this program.

(1) Processors that choose not to participate are not entitled to any compensation provided for under this chapter.

(2) This program shall begin on January 1, 2008.  Biennially, processors that choose to participate in this program shall survey and record the weight of all collected covered electronic products, differentiated by producer in the calendar year immediately preceding the year the report is due to the department.  In the first year of the program, participating processors shall survey and record the weight of all collected covered electronic products, differentiated by producer, for the calendar year 2008 and report to the department in 2009.

(3) The processor shall report to the department the total weight collected differentiated by producer by March 1 of the year immediately after the year the processor surveyed and recorded the weight of all collected covered electronic products, differentiated by producer.

(4) Processors shall provide written documentation that all covered electronic products reported to the department were discarded and collected in the commonwealth upon request by the department.

(5)  No product brought into the commonwealth for the purpose of discard shall be eligible for reimbursement under the provisions of this chapter and shall be subject to penalties in section 11.

(6) Processors shall not report covered electronic products collected from municipalities.

(7) Processors shall not charge a fee for collecting or recycling a covered electronic product for which the processor receives compensation under the provisions of this section.

(8) Receiving compensation under the provisions of this chapter for a covered electronic product for which the processor knowingly received a fee for the collection or recycling of that product shall be considered a violation under this chapter.

(c) Biennially the department shall determine each producer’s return share of non-orphan covered electronic products.

(d) Biennially the department shall determine each producer’s return share of orphan waste.  Each producers return share of orphan waste shall be equivalent to their percentage of return share for non-orphan covered electronic products.

(e) Each participating municipality or processor shall annually report the amount of covered electronic products collected and recycled, by weight, to the department.

(f) Annually the department shall determine the total number of pounds of recycled covered electronic products in the commonwealth.

(g) Annually, the department shall determine the amount, by weight, of recycled covered electronic products that each producer is responsible for, their return share based on orphan and non-orphan products, and the total amount, by weight, of recycled covered electronic products in the commonwealth.  The department shall inform each producer, in writing by June 30, of the fees due under this section.

(h) Producers shall remit to the department the cost of recycling the amount, by weight, for which they are responsible, of covered electronic products by August 30.

(1) This cost will be determined by applying a set per pound rate for recycling covered electronic products.

(2) The department shall set this per pound rate, and shall adjust this rate biennially, as necessary.

(3) The department shall consider the costs of collection, transportation, recycling, and costs incurred by the administration of the program established by this chapter in setting the rate.

(i) The department shall reimburse participating municipalities and processors for their costs of recycling covered electronic products based on the set, per pound rate.

(j) The department shall maintain a separate account for all monies collected from producers as established by this chapter. The monies collected under the set per pound rate for the purpose of reimbursement shall not be used for any other purpose.

(k) Any municipality or processor failing to meet the requirements of subsections (a), (b) and (e) shall not be eligible for any reimbursements for recycling of covered electronic products.

(l) Municipalities shall make information available to its constituents, that describes where and how to return, recycle, and dispose of covered electronic devices.

(m) Municipalities and processors may choose to participate in the program established by this section starting January 1 of any calendar year beginning in 2007.

(n) Municipalities and processors who choose to participate in the program established by this section shall do so for a minimum of two consecutive years.

(o) No municipality or processor shall be eligible for reimbursement under the provisions of this chapter until the processor or municipality has completed a biennial sort.

Section 4. Auditing.  Producers shall have the right to request an independent audit of a municipality’s or processor’s annual reporting or biennial sorting information.

(a) A producer shall be granted up to three audits annually, but no more than six audits over a period of five years. The department may grant additional audits to a producer if it determines there is just cause.

(b) The municipality or processor and producer shall agree on an independent auditor.

If the municipality or processor and the producer cannot reach agreement on an auditor, the department shall assign one.

(c) If the auditor determines that the municipality or processor willfully falsified their reporting or sorting information, then that municipality or processor shall reimburse all producers, through the department, all monies received under this chapter for the calendar year audited.  Any municipality or processor found willfully falsifying reporting or sorting information in three separate years shall be ineligible for reimbursement under this chapter.

(d) If the auditor determines that the municipality or processor did not willfully falsify any reporting or sorting information, then the producer who initiated the audit shall pay the full cost of the audit, including any administrative costs incurred by the municipality or processor as a result of the audit process, and shall pay a fine of five hundred dollars to that municipality or processor. The auditor may waive the fees and penalties if he determines that the municipality or processor significantly mis-reported sorting or reporting information, without willful intent.

Section 5. Producer Recycling Programs. Producers may establish independent recycling programs either individually or in cooperation with other producers, processors or municipalities.

(a) Municipalities or processors entering into cooperative agreements with producers shall not count the products collected in cooperation with the producer in their annual collection totals or in their biennial reporting.

(b) All individual or cooperative recycling programs must recover all types, but not all brands, of covered electronic products and adhere to all worker health and safety and environmental laws, all sections of this chapter regarding recycling and export, and all regulations regarding the recycling of covered electronic devices issued by the department.

Section 6. Reporting. No later than January 1, 2009, and annually thereafter, a producer that offers a covered electronic product for sale in the commonwealth shall submit a producer report to the department.

(a) The producer report shall include the following:

(1) A baseline or set of baselines that show the presence of mercury, cadmium, lead, hexavalent chromium, PBDE's, and PBB's used in covered electronic devices manufactured by the producer in that year.

(2) A baseline or a set of baselines that describe any efforts to design covered electronic products for recycling and goals and plans for further increasing design for recycling.

(3) A description of any collection, consolidation and recycling services utilized to recover the producer's products.

(b) The department may keep information submitted pursuant to this section confidential as provided by section 10 of chapter 66 of the General Laws.

(c) The department may recommend expanding the definition of covered electronic products in this chapter to include keyboards, mice, pointing devices, other computer peripherals, or any other product the department deems hazardous to the public health.

Section 7. Environmentally sound recycling. Any person who intends to export, or transfer for the purpose of export, covered electronic products outside the United States shall comply with all of the following at least sixty days prior to export:

 (a) Notify the department of the destination, exporter, contents, and volume of covered electronic waste to be exported.

 (b) Demonstrate that the importation of covered electronic waste is not prohibited by any applicable law or regulation of the country of destination and that any import is conducted in accordance with all applicable laws.  As part of this demonstration, required import and operating licenses, and notice acknowledging receipt of these products from local authorities, shall be forwarded to the department.

 (c) Demonstrate that the exportation of covered electronic waste is conducted only in accordance with applicable federal and international law.

 (d) Demonstrate that the management of the exported covered electronic waste will be handled within the country of destination in accordance with applicable rules, standards, and requirements of that country.

 (e) Demonstrate that the covered electronic waste is being exported for the purpose of reuse or recycling.

 The department shall make this information available upon request.

Section 8. Labor Guidelines. All electronic waste recycling and dismantling facilities shall protect the health and safety of their workers and contractors by complying with all State and federal occupational safety and health laws and regulations.

Section 9.  State Agency Procurement. As of January 1, 2008, a state agency that purchases or leases covered electronic devices shall require each prospective bidder, certify that it, and its agents, subsidiaries, partners, joint venturers, and subcontractors for the procurement, have complied with this chapter and any regulations adopted pursuant to this chapter, or to demonstrate that this chapter is inapplicable to all lines of business engaged in by the bidder, its agents, subsidiaries, partners, joint venturers, or subcontractors.

 (a) Failure to provide certification, pursuant to this section shall render the prospective bidder and its agents, subsidiaries, partners, joint venturers, and subcontractors ineligible to bid on the procurement of covered electronic devices.

 (b) The bid solicitation documents shall specify that the prospective bidder is required to cooperate fully in providing reasonable access to its records and documents that evidence compliance with this chapter.

 (c) Any person awarded a contract by a state agency that is found to be in violation of this section is subject to the following sanctions:

 (1) The contract shall be voided by the state agency to which the equipment, materials, or supplies were provided.

 (2) The contractor is ineligible to bid on any state contract for a period of three years.

Section 10. Fees. The department shall assess an annual fee, pursuant to the provisions of section 18 of chapter 21A, which shall be payable by the producers, and shall cover the full costs incurred by the department for the preparation of regulations, for other related compliance costs, and all other costs, including the annual costs of administration, incurred for the implementation of this chapter.

Section 11. Penalties.

(a) Any person who willfully or knowingly violates this chapter or regulations promulgated pursuant to this chapter is subject to judicially imposed criminal and civil penalties, as well as civil administrative penalties.

(b) A violation may be punished by the administrative imposition of a penalty of not less than one hundred dollars and not more than five thousand dollars for each day of violation. A violation may be punished by a fine of not more than twenty-five thousand dollars. Punishment imposed under this chapter does not preclude any other penalty prescribed by law.

SECTION 2. Regulations. The department of environmental protection is hereby authorized and directed to adopt rules, regulations, procedures and standards as may be necessary for the implementation of chapter 21N.