Report Title:

Electronic Device Recycling

 

Description:

Establishes a state program for collection, recycling, enforcement, and monitoring of covered electronic devices; establishes program funding through the electronic device recycling fund.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

2509

TWENTY-FOURTH LEGISLATURE, 2008

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO ELECTRONIC DEVICE RECYCLING.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1.  Available estimates suggest that over one hundred million computers, monitors, and televisions become obsolete each year, and this number is growing.  If improperly managed, these used electronics can harm the environment and human health.  These electronics contain valuable resources such as copper, gold, and aluminum, and if the electronics are disposed in landfills, these valuable resources are lost for future use.  Additionally, research shows that toxic substances with known adverse health effects, such as lead, have the potential to leach from discarded electronics in landfills.  In Hawaii, an additional problem is presented by the limited amount of space in our State's landfills.  Valuable space could be saved by providing a method to encourage recycling of used and discarded electronics.

The purpose of this Act is to encourage recycling of electronic devices sold within the State by establishing an electronic device recycling program.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

ELECTRONIC WASTE RECYCLING ACT

     §   -1  Definitions.  As used in this chapter:

     "Brand" means symbols, words, or marks that identify a covered electronic device, rather than any of its components.

     "Covered entity" means any household, business that employs ten or fewer individuals, or not-for-profit organization exempt from taxation under section 501(c)(3) of the United States Internal Revenue Code that employs ten or fewer individuals.

     "Covered electronic device":

     (1)  Means a computer monitor or television, whether cathode ray tube based or flat panel based, or a portable computer, with a screen size greater than four inches measured diagonally; and

     (2)  Shall not include:

         (A)  A covered electronic device that is a part of a motor vehicle or any component part of a motor vehicle assembled by or for a motor vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle;

         (B)  A covered electronic device that is functionally or physically a part of a larger piece of equipment designed and intended for use in an industrial, commercial, or medical setting, including diagnostic, monitoring, or control equipment;

         (C)  A covered electronic 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

         (D)  A telephone of any type, unless it contains a video display area greater than four inches measured diagonally.

     "Department" means the department of health.

     "Household" means any occupant of a single detached dwelling unit or of a single unit of a multiple dwelling unit who has used a covered electronic device at a dwelling unit primarily for personal or home business use.

     "Manufacturer" means any existing person:

     (1)  Who manufactures or manufactured covered electronic devices under a brand that it owns or owned or is or was licensed to use, other than a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licensor;

     (2)  Who sells or sold covered electronic devices manufactured by others under a brand that the seller owns or owned or is or was licensed to use, other than a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licensor;

     (3)  Who manufactures or manufactured covered electronic devices without affixing a brand;

     (4)  Who manufactures or manufactured covered electronic devices to which it affixes or affixed a brand that it neither owns or owned nor is or was licensed to use; or

     (5)  For whose account covered electronic devices manufactured outside the United States are or were imported into the United States; provided that if at the time such covered electronic devices are or were imported into the United States and another person has registered as the manufacturer of the brand of the covered electronic devices, this paragraph shall not apply.

     "New covered electronic device" means a covered electronic device that is manufactured after the effective date of this chapter.

     "Orphan device" means a covered electronic device for which no manufacturer can be identified.

     "Person" means any individual, business, partnership, limited liability company, corporation, not-for-profit organization, association, government entity, public benefit corporation, or public authority.

     "Program year" means a full calendar year beginning on or after January 1, 2010.

     "Recycling" means processing (including disassembling, dismantling, or shredding) covered electronic devices or their components to recover a useable product.  "Recycling" does not include any process defined as incineration under applicable laws and rules.

     "Retailer" means any person who offers covered electronic devices for sale, other than for resale by the purchaser, through any means including, but not limited to, sales outlets, catalogs, or the Internet.

     "Return share" means the proportion of covered electronic devices for which an individual manufacturer is responsible to collect, transport, and recycle, as determined by the department pursuant to section    -7(a).

     "Return share in weight" means the total weight of covered electronic devices for which an individual manufacturer is responsible to collect, transport, and recycle, as determined by the department pursuant to section    -7(b).

     "Sell" or "sale" means any transfer for consideration of title including, but not limited to, transactions conducted through sales outlets, catalogs, or the Internet, but excluding leases.

     §   ‑2  Scope of products.  The collection, transportation, and recycling provisions of this chapter shall apply only to covered electronic devices used and discarded in this State by a covered entity.

     §   ‑3  Sales prohibition.  (a)  Beginning January 1, 2010, no manufacturer or retailer shall sell or offer for sale any new covered electronic device for delivery in this State unless:

     (1)  The covered electronic device is labeled with a brand, and the label is permanently affixed and readily visible; and

     (2)  The brand is included in a registration that is filed with the department and that is effective pursuant to section    -4(b)(3).

     (b)  Beginning April 1, 2009, the department shall maintain a list of each registered manufacturer and the brands reported in each manufacturer's registration and a list of brands for which no manufacturer has registered.  The lists shall be posted on the department website and shall be updated by the first day of each month.  Each retailer who sells or offers for sale any new covered electronic device for delivery in this State shall review these lists prior to selling the covered electronic device.  A retailer is considered to have complied with subsection (a) if, on the date a new covered electronic device was ordered by the retailer, the brand was included on the department's list of brands reported in a manufacturer's registration.

     §   ‑4  Manufacturer responsibility.  (a)  Beginning January 1, 2009, each manufacturer shall label all new covered electronic devices to be offered for sale for delivery in this State with a brand, which label shall be permanently affixed and readily visible.

  (b)(1)  By January 1, 2009, each manufacturer of new covered electronic devices offered for sale for delivery in this State shall register with the department and pay to the department a registration fee of $5,000.  Thereafter, if a manufacturer has not previously registered, the manufacturer shall register with the department prior to any offer for sale for delivery in this State of the manufacturer's new covered electronic devices.  Any manufacturer to whom the department provides notification of a return share and return share in weight pursuant to section    -7(c) and who has not previously registered shall register with the department within thirty days of receiving notification.

     (2)  Each manufacturer who is registered shall submit an annual renewal of its registration with the payment of a registration fee of $5,000, by January 1 of each program year.

     (3)  The registration and each renewal shall include a list of all of the manufacturer's brands of covered electronic devices and shall be effective on the second day of the succeeding month after receipt by the department of the registration or renewal.

  (c)(1)  By June 1, 2009, each manufacturer to whom the department provides, by April 1, 2009, a return share in weight that is greater than zero shall:

         (A)  Submit an additional fee to the department, which shall be calculated by multiplying the manufacturer's return share in weight by the cost per pound for collection, transportation, and recycling of covered electronic devices determined by the department pursuant to section     -7(g); or

         (B)  Submit a plan to the department to establish, conduct, and manage a program for the collection, transportation, and recycling of its return share in weight of covered electronic devices, provided that the plan represents at least five per cent of the total return shares in weight determined by the department pursuant to section    -7(b) for the applicable program year.  The program shall collect only covered electronic devices that have been used and discarded in this State by a covered entity.

     (2)  By February 15, 2011, or by February 15 of any year thereafter, each manufacturer to whom the department provides a return share in weight that is greater than zero shall comply by March 15 of that year, with paragraph (1)(A) or (B).

     (d)  Each manufacturer's plan shall include:

     (1)  Methods that will be used to collect covered electronic devices, including the names and locations of proposed collection services;

     (2)  The processes that will be used to recycle covered electronic devices, including a description of the recycling processes that will be used and the names and locations of recyclers to be directly utilized by the plan;

     (3)  Means that will be utilized to publicize collection services, including specification of a website or toll-free telephone number that provides information about the manufacturer's program in sufficient detail to allow covered entities to learn how to return their covered electronic devices for recycling; and

     (4)  The intention of the manufacturer to fulfill its return share in weight through operation of its own plan, either individually or with other manufacturers.

     (e)  A group of manufacturers jointly submitting a plan shall collect, transport, and recycle the sum of the return shares in weight of each participating manufacturer.

     (f)  A manufacturer's plan may establish reasonable limits on the number of covered electronic devices by product type accepted from a covered entity in any one day or in any one delivery pursuant to a collection program.

     (g)  The department shall review each manufacturer's plan and, within sixty days of receipt of the plan, shall determine whether the plan complies with this chapter.  If the plan is approved, the department shall notify the manufacturer or group of manufacturers.  If the plan is rejected, the department shall notify the manufacturer or group of manufacturers and provide the reasons for the plan's rejection.  Within thirty days after receipt of the department's rejection, the manufacturer or group of manufacturers may revise and resubmit the plan to the department for approval.  Upon approval of a plan by the department, the payment of the additional fee based up on the return share in weight shall be waived for each manufacturer participating in the plan.  If a manufacturer or group of manufacturers does not resubmit a plan after rejection of the plan by the department or if, after resubmission of a plan by a manufacturer or group of manufacturers to the department, the department rejects the plan, each participating manufacturer in the proposed plan shall pay the additional fee required by subsection (c)(1)(A) to the department within thirty days of the department's final rejection of the plan.

     (h)  If a manufacturer or group of manufacturers fails to collect, transport, and recycle, at no fee or charge to covered entities, the return share in weight of each manufacturer participating in its plan, the manufacturer or group of manufacturers shall be required to submit to the department a payment to cover the cost of collecting, transporting, and recycling the unmet portion of the return share in weight.  This payment shall be equal to the quantity of the unmet portion, in pounds, plus an additional ten per cent of such quantity, multiplied by the cost per pound for collection, transportation, and recycling of covered electronic devices as determined by the department pursuant to section    -7(g).

     (i)  If a manufacturer or group of manufacturers collects, transports, and recycles, at no fee or charge to covered entities, in excess of the return share in weight of each manufacturer participating in its plan, the manufacturer or group of manufacturers may apply credits to meeting the following program year's return share in weight for the manufacturer or group of manufacturers or may sell credits to another manufacturer or group of manufacturers.  These credits shall be equal to the quantity in pounds of the excess portion.

     (j)  Where more than one person is within the definition of manufacturer of a brand of a covered electronic device under section    -1, any one or more such persons may assume responsibility for and satisfy the obligations of a manufacturer under this chapter with respect to covered electronic devices bearing that brand.  In the event that no person assumes responsibility for and satisfies the obligations of a manufacturer under this chapter with respect to covered electronic devices bearing that brand, the department may consider any one or more persons within such definition to be the manufacturer of that brand.

     (k)  The obligations under this chapter for a manufacturer who manufactures or manufactured covered electronic devices, or who sells or sold covered electronic devices manufactured by others, under a brand that was previously used by a different person in the manufacture of covered electronic devices shall extend to all covered electronic devices bearing that brand.

     (l)  Nothing in this chapter is intended to exempt any person from liability that the person would otherwise have under applicable law.

     §   -5  Sampling and reporting.  (a)  Beginning January 30, 2011, the department shall annually:

     (1)  Have completed an auditable, statistically significant sampling of covered electronic devices collected from covered entities in this State by the department during the previous program year.  The sampling information collected shall consist of a list of brands of covered electronic devices and the weight of covered electronic devices that are identified for each brand.  The department's sampling shall be conducted in accordance with a procedure established by the department and may be conducted by a third-party organization, including a recycler, to be determined by the department.  The department, at its discretion, may be present at the sampling and may audit the methodology and the results of the third-party organization.  The costs associated with the sampling shall be recovered from the electronic device recycling fund established pursuant to section    ‑13; and

     (2)  Determine the total weight of covered electronic devices, including orphan devices, collected from covered entities in this State by the department during the previous program year.

     (b)  If a manufacturer or group of manufacturers conducts its own collection, transportation, and recycling program for covered electronic devices, the manufacturer or group of manufacturers shall submit a report to the department annually by January 30, beginning the year after the program is initiated.  The report shall include:

     (1)  The results of an auditable, statistically significant sampling of covered electronic devices collected from covered entities in this State by the manufacturer or group of manufacturers during the previous program year.  The sampling information reported shall consist of a list of brands of covered electronic devices and the weight of covered electronic devices that are identified for each brand; and

     (2)  The total weight of covered electronic devices, including orphan devices, collected from covered entities in this State by the manufacturer or group of manufacturers during the previous program year and documentation verifying collection and recycling of such devices.

     §   -6  Retailer responsibility.  Beginning January 1, 2010, retailers shall make available to their customers information on collection services in the State, including the department's website and toll-free telephone number.  Remote retailers may include this information in a visible location on their website to fulfill this requirement.

     §   -7  Department responsibility.  (a)  The department shall determine the return share for each program year for each manufacturer by dividing the weight of covered electronic devices identified for each manufacturer by the total weight of covered electronic devices identified for all manufacturers.  For the first program year, the return share of covered electronic devices identified for each manufacturer shall be based on the best available public return share data from the United States, including data from other states, for covered electronic devices from covered entities.  For the second and each subsequent program year, the return share of covered electronic devices identified for each manufacturer shall be based on the most recent samplings of covered electronic devices conducted in this State pursuant to section    -5.

     (b)  The department shall determine the return share in weight for each program year for each manufacturer for whom a return share is determined pursuant to subsection (a) by multiplying the return share for that manufacturer by the total weight in pounds of covered electronic devices, including orphan devices, collected from covered entities the previous program year.  For the first program year, the total weight in pounds of covered electronic devices shall be based on the best available public weight data from the United States, including data from other states, for covered electronic devices from covered entities.  For the second and each subsequent program year, the total weight in pounds of covered electronic devices shall be based on the total weight of covered electronic devices, including orphan devices, determined by the department pursuant to section    -5.

     (c)  By April 1, 2009, the department shall notify each manufacturer for whom a return share is determined pursuant to subsection (a) of its return share and its return share in weight for the first program year.  Annually thereafter, by February 15, beginning in 2011, the department shall notify each manufacturer for whom a return share is determined pursuant to subsection (a) of its return share and its return share in weight for the second and subsequent program years.

     (d)  The department shall prepare and implement its plan to establish, conduct, and manage a program for the collection, transportation, and recycling of covered electronic devices from covered entities in this State for those manufacturers without approved plans.

     (1)  The department, after reviewing manufacturers' plans, shall ensure that its plan, in combination with manufacturers' plans, provides for covered electronic devices collection services that are reasonably convenient and available to all covered entities in this State residing within its geographic boundaries, including both rural and urban areas.  The plan may provide collection services jointly with one or more manufacturers.

     (2)  The department's plan shall encourage the use of existing in-state collection infrastructure for handling covered electronic devices to the extent that the infrastructure is cost effective and complies with applicable environmental, health, and safety laws and rules.  The department's plan may establish reasonable limits on the number of covered electronic devices by product type accepted from a covered entity in any one day or in any one delivery pursuant to a collection program.

     (3)  The department's plan shall include methods that will be used to collect covered electronic devices, including the names and locations of proposed collection services, and the processes that will be used to recycle covered electronic devices, including a description of the recycling processes that will be used and the names and locations of recyclers to be directly utilized by the plan.

     (4)  The department shall organize, conduct, and coordinate public outreach for the department's plan.

     (e)  Annually, by March 1, beginning in 2011, the department shall complete and make publicly available an annual report for the previous program year that includes:

     (1)  The return shares and return shares in weight determined by the department;

     (2)  The total weight of covered electronic devices, including orphan devices, determined by the department and reported to the department;

     (3)  The total amount of registration fees received by the department, additional fees received by the department, payments received by the department, and penalties paid to the department under this chapter;

     (4)  The total amount of costs incurred by the department to implement and enforce this chapter;

     (5)  A list of all parties whom the department has paid for collection, transportation, and recycling services, the amount of payments the department has made to those parties, and the purpose of those payments; and

     (6)  Information that the department has received on collection services operated in this State by or on behalf of the department or by or on behalf of manufacturers or groups of manufacturers and the parties who operate them.

     (f)  Beginning January 1, 2010, the department shall maintain and update a website and a toll-free telephone number with current information on where covered entities can return covered electronic devices for recycling.

     (g)  By April 1, 2009, the department shall set the cost per pound for collection, transportation, and recycling of covered electronic devices to reasonably approximate market costs for these services, which cost per pound is used to calculate the additional fee required by section    -4(c)(1)(A) and the payment required by section    -4(h).

     Beginning January 1, 2011, and annually thereafter, the department may adjust the cost per pound as necessary to reasonably approximate market costs for the collection, transportation, and recycling of covered electronic devices.  Prior to setting or adjusting the cost per pound, the department shall notify the public, including all registered manufacturers, of the proposed cost per pound and provide a public comment period.  By November 1 prior to the program year for which the revised cost per pound is to be used, the department shall notify all registered manufacturers of any adjustments to the cost per pound.

     (h)  Beginning June 1, 2009, and annually thereafter, the department shall identify manufacturers and brands for which a manufacturer is responsible, including by examining best available return share data and other pertinent data.  Unless the manufacturer has registered with the department, the department shall notify each identified manufacturer of the requirements of this chapter.

     (i)  The department annually shall determine whether new covered electronic devices with no brand affixed, or with a brand affixed that is not included in a registration filed with the department, are being sold or offered for sale by retailers for delivery in this State.

     §   -8  Fees for collection, transportation, or recycling of covered electronic devices.  No fee or charge may be imposed by a manufacturer or group of manufacturers upon covered entities for collection, transportation, and recycling of covered electronic devices until the manufacturer or group of manufacturers has collected, transported, and recycled the sum of the return shares in weight of each manufacturer participating in the plan.

     §   -9  Contracts for collection, transportation, and recycling of covered electronic devices.  The department may enter into contracts with any person for the collection, transportation, or recycling of covered electronic devices.

     Contracts shall include provisions to ensure the following, in so far as these provisions are covered by the contract:

     (1)  The covered electronic devices are collected from a covered entity located in this State and were used and discarded in this State by a covered entity;

     (2)  The collection, transportation, and recycling of the covered electronic devices are conducted in accordance with federal, state, and county laws and regulations; and

     (3)  Records of the information determined to meet the requirements of this chapter are kept and provided to the department.

     §   -10  Disposal ban; recycler responsibility.  (a)  Beginning January 1, 2010, no person shall place or dispose of any covered electronic device in any solid waste disposal facility.

     (b)  Recyclers shall comply with applicable federal, state, and county laws and regulations in recycling covered electronic devices collected pursuant to this chapter.

     §   -11  Enforcement.  (a)  Any manufacturer that fails to label its new covered electronic devices with a brand pursuant to section    -4(a), fails to register with the department and pay a registration fee pursuant to section    -4(b), or fails to comply with any requirement of section    -4(c) may be assessed a penalty of up to $10,000 for the first violation and up to $25,000 for the second and each subsequent violation, in addition to being responsible for any fees, payments, and penalties required by or imposed pursuant to this chapter.

     (b)  Except as provided in subsection (a), any person who violates any requirement of this chapter may be assessed a penalty of up to $1,000 for the first violation and up to $2,000 for the second and each subsequent violation, in addition to being responsible for any fees, payments, and penalties required by or imposed pursuant to this chapter.

     (c)  Penalties shall be paid to the department.

     (d)  The department shall enforce this chapter.

     (e)  Any violation of the sales prohibitions of this chapter may be enjoined in an action brought by the attorney general.

     §   -12  Regulatory authority.  The department may adopt rules, pursuant to chapter 91, necessary to implement this chapter.

     §   -13  Electronic device recycling fund.  (a)  There is established in the state treasury the electronic device recycling fund into which shall be deposited all fees, payments, and penalties collected by the department pursuant to this chapter.

     (b)  The electronic device recycling fund shall be administered by the department of health.  Moneys in the fund shall be expended by the director solely for the purpose of implementing and enforcing this chapter.

     §   -14  Financial and proprietary information.  Notwithstanding any law to the contrary, financial or proprietary information, including trade secrets, commercial information, and business plans, submitted to the department under this chapter is confidential and is exempt from public disclosure.

     §   -15  Federal preemption.  This chapter shall be deemed repealed if a federal law or a combination of federal laws takes effect that establishes a national program for the collection and recycling of covered electronic devices that substantially meets the intent of this chapter, including the creation of a financing mechanism for collection, transportation, and recycling of all covered electronic devices from covered entities in the United States."

     SECTION 3.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  This Act shall take effect on July 1, 2008.

 

INTRODUCED BY:

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