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An Act to require producer responsibility for collection and recycling of discarded electronic products. |
Be it enacted by the Senate and House
of Representatives in General Court assembled, and by the authority of the
same, as follows:
SECTION 1. The General Laws are hereby amended by inserting after chapter 21M the following new chapter:-
CHAPTER 21N. PRODUCER RESPONSIBILTY FOR RECYCLING DISCARDED ELECTRONIC PRODUCTS.
Section 1. Definitions. For the purposes of this chapter the following words shall have the following meanings:
“Collection”, the aggregation of covered electronic products from households, including the accumulation of covered electronic products at handling facilities, transfer stations, and solid waste facilities, and includes all the activities up to the time the covered electronic products are delivered to or collected by a processor.
“Collector”, a person, registered with the department, including but not limited to handling facilities, transfer stations, and solid waste facilites, that accepts covered electronic products from households, and transports or arranges for them to be transported to a processor. This shall include, but not be limited to, non-profit organizations, schools, waste management companies, retailers and municipalities.
“Collector Reimbursement”, the minimum per pound rate, as established by the department, paid by a processor to a collector for all covered electronic products received. This rate will take into account costs incurred to collect materials and transport covered electronic products to processors.
“Computer”, an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and may include a laptop or a combined computer central processing unit and monitor, but does not include an automated typewriter or typesetter, a portable handheld calculator, a portable digital assistant, or other similar device.
“Covered electronic product”, an electronic product collected and recycled by collectors and processors that is eligible for collector reimbursement and processor reimbursement through the producer reimbursement system.
“Department”, the department of environmental protection.
“Electronic product” a cathode ray tube, a video display device that incorporates a tuner for the receiving of television signals, 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 (1) a video display device that is part of a motor vehicle or any component part of a motor vehicle assembled by, or for, a vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle; (2) a video display device, including a touch-screen display, that is functionally or physically part of a larger piece of equipment or is designed and intended for use in an industrial; commercial, including retail; library checkout; traffic control; kiosk; security, other than household security; border control; or medical setting, including diagnostic, monitoring, or control equipment; (3) a video display device that is contained within a clothes washer, clothes dryer, refrigerator, refrigerator and freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier, or air purifier; or (4) a telephone of any type unless it contains a video display area greater than nine inches measured diagonally.
“Monitor”, a video display device without a tuner that can display pictures and sound and is used with a computer.
“Orphan waste”, 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.
“Person”, an individual, trust firm, joint stock company, business concern, and corporation, including, but not limited to, a government body, partnership, limited liability company, or association.
“Processor”, a person registered with the department to receive electronic products from collectors for the purpose of sorting, weighing and either reusing or recycling or shipping offsite for reuse or recycling in accordance with minimum performance requirements as may be established by the department.
“Processor Reimbursement” the minimum per pound rate, as established by the department, paid by a producer to a processor for all the producer’s covered electronic products and the producer’s share of orphan waste as determined by the department.
“Producer”, any person who:
(a) Has a physical presence and legal assets in the United States of America and
(1) Manufactures or manufactured a covered electronic product under its own brand or label; or
(2) Sells or sold under its own brand or label a covered electronic product produced by other suppliers; or
(3) Owns a brand that it licenses or licensed to another person for use on a covered electronic product; or
(b) Imports or imported a covered electronic product into the United States that is manufactured by a person without a presence in the United States; or
(c) Sells at retail a covered electronic product acquired from an importer that is the manufacturer as described in (b) of this definition, and elects to register in lieu of the importer.
“Program year”, a full calendar year beginning on or after January 1, 2009.
“Recycling”, to recover materials or by-products which are:
(a) reused; or
(b) used as an ingredient or a feedstock in an industrial or manufacturing process to make a marketable product; or
(c) used in a particular function or application as an effective substitute for a commercial product ir commodity. “Recycle” does not mean to recover energy from the combustion of a material.
“Retailer”, includes, but is not limited to, a business or an individual or a producer of a covered electronic product that sells new covered electronic products 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”, a percentage of covered electronic products collected through processors as calculated by dividing the total weight of covered electronic products of that producer’s brands by the total weight of covered electronic products for all producers’ non-orphaned brands.
“Reuse”, any operation by which an electronic product or component of an electronic product changes ownership and is used for the same purpose for which it was originally purchased.
“Sale” or “sell”, any transfer for consideration of title, including, but not limited to, transactions conducted through sales outlets, catalogs, or the Internet, or any other similar electronic means, and excluding leases.
“Television”, any telecommunication system device that can broadcast or receive moving pictures and sound over a distance and includes a television tuner or a display device peripheral to a computer that contains a television tuner.
Section 2. Producer Responsibility. As of January 1, 2009 producers shall bear the financial responsibility for the collection, reuse and recycling of covered electronic products, which have been discarded in the commonwealth, including their return share of orphan waste. This chapter shall apply to all producers who have sold or sell covered electronic products in the commonwealth before, on or after the effective date of this chapter. Producers may recycle their covered electronic products by establishing a collection program, either individually or in cooperation, to collect these products at their end of life as established in this chapter. Any such program shall adhere to all applicable worker health and safety and environmental laws, all sections of this chapter regarding recycling, and all regulations regarding the recycling of covered electronic products promulgated by the department.
(a) Producer Registration.
(1) By January 1, 2009, and each January 1 thereafter, each producer of covered electronic products offered for sale in the commonwealth shall register with the department.
(2) A producer shall submit to the department with each registration or annual renewal a fee not to exceed $5,000 to cover the administrative costs of this chapter as determined by the department. The department may consider the size of a producer and other business related factors in determining these fees.
(3) The department shall review the registration or renewal application and notify the producer if their registration does not meet the requirements of this section. Within thirty days of receipt of such a notification from the department, the producer must file with the department a revised registration addressing the requirements noted by the department.
(4) The registration shall include the following information:
(i) The name and contact information of the producer submitting the registration;
(ii) The producer's brand names of covered electronic products, including all brand names sold in the commonwealth in the past, all brand names currently being sold in the state, and all brand names for which the producer has legal responsibility;
(iii) The method or methods of sale used in the commonwealth;
(iv) A statement disclosing whether (i) any video display devices sold to households exceed the maximum concentration values established for lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBBs) and polybrominated diphenyl ethers (PBDEs) under the RoHS Directive 2002/95/EC of the European Parliament and Council and any amendments thereto or (ii) the manufacturer has received an exemption from one or more of those maximum concentration values under the RoHS Directive that has been approved and published by the European Commission;
(v) 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; and
(vi) A description of any collection, consolidation and recycling services utilized to recover the producer's products.
(5) The producer shall submit any changes to the information provided in the registration to the department within fourteen days of such change.
(6) The department may keep information submitted pursuant to this section confidential as provided by section 10 of chapter 66 of the General Laws.
(7) The department shall make items (i) and (ii) available to retailers and on its website or in another publicly accessible format.
(8) The department shall make items (iv), (v) and (vi) available upon request, subject to the provisions of subsection (6).
(9) A producer shall reimburse processors a minimum per-pound rate as established by the department for all the producer’s covered electronic products and the producer’s return share, as determined by the department, of orphan waste.
(b) Producer Recycling Programs. A producer may establish an independent recycling program either individually or in cooperation with other producers.
(1) All independent individual or cooperative recycling programs shall recover one or more electronic products and adhere to all worker health and safety and environmental laws and all regulations regarding the recycling of electronic products issued by the department. (2) A producer shall provide information specified by the department that describes where and how to recycle an electronic product and opportunities and locations for the collection or return of the producer’s product, including information on opportunities and locations for donation of the product for reuse, through the use of toll-free telephone number and/or website, information included in the packaging, or information provided accompanying the sale of the electronic product. (3) A producer that establishes an independent recycling program shall weigh the covered electronic products collected. A producer shall submit a certified statement to the department by January 30 of each year detailing the total weight of electronic products received and the weight of orphan waste received in the preceding program year. The department, in determining the producer’s orphan waste share, may take into account electronic products, including orphan waste, voluntarily collected by the producer. (4) A producer that establishes an independent recycling program shall not charge a fee for collecting, transporting or recycling electronic products.
(c) Producer Reimbursement. A producer shall reimburse processors a minimum per-pound rate as established by the department for all the producer’s covered electronic products and the producer’s return share, as determined by the department, of orphan waste. Said payment shall be due within 30 days of invoicing.
Section 3. Collector Participation. (a) Collector Registration.(1) After January 1, 2009 no person may receive collector reimbursement for covered electronic products under the provisions of this chapter unless that person has registered as a collector with the department on a form prescribed by the department. Registration information shall include the name, address, telephone number, and location of the business. A registration is effective upon receipt by the department and is valid for at least 1 year or as specified by the department.
(2) A collector shall submit to the department with each registration or annual renewal a fee to cover the administrative costs of this chapter as determined by the department.
(3) The department shall review the registration or renewal application and notify the collector if their registration does not meet the requirements of this section. Within thirty days of receipt of such a notification from the department, the collector must file with the department a revised registration addressing the requirements noted by the department.
(b) A collector shall contract with a registered processor or processors to receive, the covered electronic products collected by the collector. (c) A collector that receives compensation under the provisions of this chapter shall not charge a fee to consumers for the transportation, collection or recycling of covered electronic products. (d) A collector shall make information available to the public that describes where and how to return, recycle, and dispose of covered electronic products. (e) A collector shall accept all covered electronic products and shall ensure that said products are transported by or delivered to a registered processor. (f) A collector may limit the number of covered electronic products delivered at a given time by any customer to no more than five. (g) A collector shall not knowingly accept covered electronic products brought into the commonwealth for the purpose of recycling or discard. Section 4. Processor Participation.(a) Processor Registration.
(1) After January 1, 2009, no person may be eligible to receive a processor reimbursement as for covered electronic products under the provisions of this chapter unless that person has registered with the department on a form prescribed by the department. Registration information must include the name, address, telephone number, and location of the business and a certification that the processor has complied and will continue to comply with all applicable environmental and occupational safety laws. A registration is effective upon receipt by the department and is valid until January 1 of each year.
(2) A processor shall submit to the department with each registration or annual renewal a fee to cover the administrative costs of this chapter as determined by the department.
(3) The department shall review the registration or renewal application and notify the processor if their registration does not meet the requirements of this section. Within thirty days of receipt of such a notification from the department, the processor must file with the department a revised registration addressing the requirements noted by the department.
(4) No covered electronic product brought into the commonwealth for the purpose of recycling or discard shall be eligible for reimbursement under the provisions of this chapter and shall be subject to penalties in section 11. (5) Processors shall not charge a fee for accepting, sorting weighing or recycling a covered electronic product for which the processor receives compensation under the provisions of this section. (6) Receiving processor reimbursement under the provisions of this chapter for a covered electronic product for which the processor knowingly received a fee for accepting, sorting, weighing or recycling of that product shall be considered a violation under this chapter. (b) Processor Responsibilities.
(1) A processor shall be responsible for sorting all covered electronic products received from a participating collector with whom the processor has a contract. (2) A processor shall weigh the total amount of covered electronic products received from a participating collector and shall reimburse said collector a minimum per-pound rate as established by the department. Said collector reimbursement shall be due within 30 days of pick-up. (3) A processor shall sort, by producer, and weigh all covered electronic products received from collectors. The processor shall bill producers based on a per-pound, minimum processor reimbursement rate as determined by the department. (4) A processor shall either recycle on-site or ship covered electronic products offsite for recycling in accordance with the minimum performance requirements established by the department.(5) By January 30, 2010, and every January 30 thereafter, a processor shall submit a report to the department. Said report shall include:
(i) The total aggregate weight of covered electronic products processed pursuant to the provisions of this chapter in the previous program year; (ii) The weight, differentiated by producer, of covered electronic products processed pursuant to the provisions of this chapter in the previous program year; and (iii) The total amount of orphan waste processed pursuant to the provisions of this chapter in the previous program year. (iv) Any other information to help track, monitor and evaluate the management of covered electronic products, as determined by the department. Section 5. Retailer Responsibilities.
(a) A retailer shall provide information provided by the department that describes where and how to recycle an electronic product and opportunities and locations for the collection or return of the electronic product, through the use of toll-free telephone number and/or website, or information provided accompanying the sale of the electronic product.
(b) Beginning on July 1, 2009, a retailer shall only sell electronic products from producers that are compliant with the provisions of this chapter. Retailers of covered electronic products in the commonwealth shall consult the list established by the department pursuant to section 6 prior to selling covered electronic products in the commonwealth. A retailer shall be considered to have complied with this responsibility if, on the date that the product was ordered from the producer or its agent, the producer was listed as being in compliance on the department website.
Section 6. Department Responsibilities.
(a) (1) By January 30, 2010, and by each January 30 thereafter, the department shall:
(i) determine the return share for each program year for each producer by dividing the weight of covered electronic products identified for each producer by the total weight of covered electronic products identified for all producers. Said calculation shall be based on the reports generated by processors of covered electronic products in the commonwealth. For the first program year, the return share of covered electronic products identified for each producer shall be based on the best available public return share data from the United States, including data from other states, for covered electronic products from consumers. For the second and each subsequent program year, the return share of covered electronic products identified for each producer shall be based on the previous year’s reported data as described herein. The department shall use the return share for each producer to allocate financial responsibility for orphan waste.
(ii) determine, based on each producer’s return share, each producer’s share of responsibility for the orphan waste collected in the commonwealth. Each producer’s return share of orphan waste shall be equivalent to their percentage of return share for non-orphan covered electronic products, multiplied by the total amount of orphan waste collected in the program year.
(b) The department, subject to the provisions of chapter 30A, shall establish a per-pound rate for collection reimbursement and processing reimbursement of covered electronic products. The rate shall be divided between collection, transportation and processing as the department may determine. (c) The department, subject to the provisions of chapter 30A, may expand the definition of covered electronic products in this chapter to include keyboards, mice, pointing devices, other computer peripherals, or any other electronic product. In determining whether to restrict or prohibit the disposal of other products, the department may consider: (i) the nature and degree of potential adverse impacts; and (ii) the quantities of restricted materials generated; and (iii) the availability of non-disposal management options for the restricted materials; and (iv) the economic impact on the facility, class of facilities or generators subject to the restriction; and (v) such other factors as the department deems relevant to such a determination.(d) The department shall adopt, and may from time to time amend or repeal, rules and regulations which it deems necessary for the proper administration of this chapter and to protect the environment and public health, safety and welfare. Such regulations shall include minimum performance requirements for collection and processing of covered electronic products. Every collector and processor shall, at a minimum, demonstrate compliance with the department rules and regulations and the United States Environmental Protection Agency’s Plug-In to eCycling Guidelines for Materials Management as issued and available on the United States Environmental Protection Agency’s Internet website in addition to any other requirements mandated by federal or state law. (e) The department shall identify, using all reasonable means, producers that are in business or that are no longer in business but that have a successor in interest by examining best available return share data and other pertinent data. The department shall notify producers that have been identified and for whom an address has been found of the requirements of this chapter, including registration requirements under this section and section 2 of this act.
Section 7. Sales Prohibition and Labeling Requirement. As of January 1, 2009, the following sales prohibitions shall apply to producers and retailers of electronic products:
(a) A producer not in compliance with this chapter shall be prohibited from offering any electronic product for sale in the commonwealth and shall provide the necessary support to retailers to ensure the producer's electronic products are not offered for sale in the commonwealth.
(b) A retailer may not offer for sale in the commonwealth any electronic product of a producer not in compliance with sections of this chapter.
(c) As of January 1, 2009 a producer may not offer for sale an 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 electronic product of a producer not in compliance with this chapter shall be subject to the penalties in section 11.
(e) This section shall not apply to electronic products that are resold or reused.
Section 8. Disposal prohibition. As of January 1, 2009, no person shall knowingly dispose of any electronic product and no landfill, transfer facility, handling facility, or combustion facility shall accept a electronic product except to handle, recycle or compost the material in accordance with a plan submitted and approved by the department shall accept any electronic product for disposal.
Section 9. 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 10. State Agency Procurement. As of January 1, 2008, a state agency that purchases or leases electronic products shall require each prospective bidder to certify that it has 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.
(a) Failure to provide certification, pursuant to this section shall render the prospective bidder ineligible to bid on the procurement of electronic products.(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 shall be ineligible to bid on any state contract for a period of three years. (d) A state agency that purchases or leases electronic products shall consider environmental performance, such as the EPEAT standards, when making procurement decisions.
Section 11. Penalties.
The commonwealth, including the Attorney General and the department, shall be authorized to initiate independent action to enforce any provision of this act, including failure by a producer to remit the registration fee required pursuant to section 2 of this act. Any funds awarded by the court shall be used first to offset enforcement expenses.
(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 shall be punished by a fine of not less than two thousand five hundred dollars or more than twenty-five thousand dollars for each day of violation.
(c) A producer who fails to remit payment to the department pursuant to this chapter may be punished by the administrative imposition of a penalty of not less than the amount owed pursuant to this chapter in addition to a fine of not less than one thousand 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 fifty thousand dollars.
Punishment imposed under this chapter does not preclude any other penalty prescribed by law.
Section 13. Multistate Implementation. The department shall be authorized to participate in the establishment of a regional multistate organization or compact to assist in carrying out the requirements of this chapter.
Section 14. Severability. If any section or provision of this act is declared unconstitutional or invalid by the courts, the unconstitutional or invalid section or provision does not affect the validity of this act as a whole or any part of this act other than the part declared to be unconstitutional or invalid.