COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 746
(By Senator Facemyer)
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[Originating in the Committee on the Judiciary;
reported February 26, 2008.]
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A BILL to amend and reenact §22-15A-2 and §22-15A-5 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto six new sections, designated §22-15A-24,
§22-15A-25, §22-15A-26, §22-15A-27, §22-15A-28 and §22-15A-29,
all relating to implementing a takeback program for certain
electronic devices with manufacturers; providing incentives
for recycling certain electronics; providing an opportunity
for counties and municipalities to increase recycling efforts;
establishing a registration program for manufacturers of
certain electronic goods; assessing registration fees;
authorizing civil and administrative penalties; and requiring
rulemaking.
Be it enacted by the Legislature of West Virginia:
That §22-15A-2 and §22-15A-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto six new sections, designated §22-15A-24, §22-15A-25, §22-15A-26, §22-15A-27, §22-15A-28 and §22-15A-29, all
to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers, feed hopper or watering troughs
for livestock, other agricultural uses approved by the Department
of Environmental Protection, playground equipment, boat or truck
dock construction, house or building construction, go-cart,
motorbike or race track barriers or similar types of beneficial
applications:
Provided, That waste tires may not be reused as
fencing, as erosion control structures, along stream banks or river
banks or reused in any manner where human health or the
environment, as determined by the Secretary of the Department of
Environmental Protection, is put at risk.
(2) "Brand" means the name, symbol, logo, trademark, or other
information that identifies a product rather than the components of
the product.
(2) (3) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(4) "Computer" means a desktop, personal computer or laptop
computer, including the computer monitor. Computer does not
include a personal digital assistant device, computer peripheral
devices such as a mouse or other similar pointing device, a printer
or a detachable keyboard.
(3) (5) "Court" means any circuit, magistrate or municipal
court.
(6) "Covered electronic device" means a television, computer
or video display device with a screen that is greater than four
inches measured diagonally. "Covered electronic device" does not
include a video display device that is part of a motor vehicle or
that is contained within a household appliance or commercial,
industrial or medical equipment.
(4) (7) "Department" means the Department of Environmental
Protection.
(5) (8) "Litter" means all waste material, including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper,
covered electronic devices, ashes,
cigarette or cigar butt, carcass of any dead animal or any part
thereof or any other offensive or unsightly matter, but not
including the wastes of primary processes of mining, logging,
sawmilling, farming or manufacturing.
(6) (9) "Litter receptacle" means those containers suitable for the depositing of litter at each respective public area
designated by the secretary's rules promulgated pursuant to
subsection (e), section three of this article.
(10) "Manufacturer" means a person that is the brand owner of
a covered electronic device or television sold or offered for sale
in this state by any means, including transactions conducted
through retail sales outlets, catalogs or the internet.
(7) (11) "Person" means a natural person, corporation, firm,
partnership, association or society and the plural as well as the
singular.
(8) (12) "Public area" means an area outside of a
municipality, including public road and highway rights-of-way,
parks and recreation areas owned or controlled by this state or any
county of this state or an area held open for unrestricted access
by the general public.
(13) "Recyclable materials" means those materials that would
otherwise become solid waste for disposal in a refuse disposal
system and which may be collected, separated or processed and
returned to the marketplace in the form of raw materials or
products.
(9) (14) "Remediate or Remediation" means to remove all
litter, solid waste and tires located above grade at a site:
Provided, That remediation does not include clean up of hazardous
waste.
(15) "Television" means any telecommunication system device
that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a video display device
peripheral to a computer in which the display contains a television
tuner.
(10) (16) "Secretary" means the Secretary of the Department of
Environmental Protection.
(17) "Video display device" means an electronic device with an
output surface that displays or is capable of displaying moving
graphical images or visual representations of image sequences or
pictures that show a number of quickly changing images on a screen
to create the illusion of motion. Video display device includes a
device that is an integral part of the display and cannot easily be
removed from the display by the consumer and that produces the
moving image on the screen. A "video display device" may use a
cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma,
digital light processing, other image-projection technology or
imaging display technologies.
(11) (18) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use because of wear, damage or defect. A tire is no
longer considered to be suitable for its original intended purpose
when it fails to meet the minimum requirements to pass a West
Virginia motor vehicle safety inspection. Used tires located at a
commercial recapping facility or tire dealer for the purpose of
being reused or recapped are not waste tires.
(12) (19) "Waste tire monofill or monofill" means an approved
solid waste facility where no solid waste except waste tires are
placed for the purpose of long term storage for eventual retrieval
for marketing purposes.
(13) (20) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling and/or marketing.
(14) (21) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§22-15A-5. Litter pickup and removal; education; government
recycling responsibilities; monitoring and
evaluation; study commission; repeal; report to
Legislature.
(a)
Litter pickup and removal. --
(1) Each county commission and the Regional Jail Authority may
establish a jail or prison inmate program including a regular
litter pickup work regimen under proper supervision pursuant to
section four, article fifteen, chapter seventeen of this code.
Funding for these programs shall be from the Litter Control Fund. Funding requirements may include salaries for additional personnel
needed for the program. The program may include the cooperative
help of the Division of Highways or any other voluntary state,
local, private, civic or public agency for personnel, equipment or
materials in establishing a county or regionwide, continual program
of inmate litter pickup. Upon final approval of the projected cost
of the program for a given fiscal year, the secretary shall
disburse the approved amount to the county or Regional Jail
Authority. The funds will be used by the Authority to reimburse
the county commission or Regional Jail Authority for its expenses
related to the program and to pay other costs related to the use of
inmates for litter pickup. Nothing contained herein shall preclude
a county or counties from expending whatever additional funds its
commission or commissions may deem appropriate from any other
revenue source in furtherance of said program.
(2) All persons involved with litter pickup may separate
identifiable recyclable materials from other litter collected. The
funds resulting from the sale of those recyclable materials shall
be returned to the Litter Control Fund.
(3) The county or regional solid waste authority may also
contract with local governments, civic organizations or chief
correctional officers in any county to implement litter pickup and
removal pursuant to this act when the state offender workforce is
not available. In such cases, the contract provisions shall
require that identifiable recyclable materials shall be separated
from other litter collected, with resulting funds returned to the Litter Control Fund. Priority shall be given to those contracts
that maximize the use of community service hours by inmates and
youth employment programs.
(b)
Education. --
(1) The Department of Education in cooperation with the
Department of Environmental Protection shall distribute educational
materials to the schools based on the goals of litter clean up and
proper solid waste disposal, the rationale for the goals and how
primary and secondary school students can contribute to the
achievement of the goals. The Department of Education shall
further incorporate this information into the curriculum of the
public school system as appropriate.
(2) The Division of Highways and local governments shall
conduct public awareness programs to notify the public of the
provisions of this law and how they can participate, to inform them
as to the rationale behind the provisions of this law, to advise
them of other avenues for achievement of the noted goals and to
encourage their participation.
(3) The Department of Environmental Protection and the Solid
Waste Management Board shall provide technical assistance to local
governments in the implementation of this law.
(c)
Government recycling responsibilities. --
(1) All state agencies and regional planning councils may
establish and implement aluminum container, glass and paper
recycling programs at their public facilities. To the extent
practicable, programs for other metals, plastics,
covered electronic devices, rubber and other recyclable materials may be
established and implemented. The moneys collected from the sale of
such materials shall be deposited and accounted for in the Litter
Control Fund pursuant to the authority of section four of this
article.
(2) To further promote recycling and reduction of the waste
stream, county and municipal governments shall consider the
establishment of recycling programs as provided in this section in
the operation of their facilities and shall evaluate the cost
effectiveness of:
(A) Procedures that separate identifiable recyclable materials
from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at
all landfills and other interim solid waste collection sites and
arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to
participate;
(iii) The use of rate differentials at landfills to facilitate
public participation in on-site recycling programs.
(3) In preparing the recycling plan as required under this
subsection, the county may address methods for the separate
collection and recycling of covered electronic devices, including
efforts by the county with manufacturers, recyclers, retailers or
other local governments for the collection and recycling of covered
electronic devices.
(d) Each affected agency and local government shall monitor
and evaluate the programs implemented pursuant to this law.
(e) The secretary shall submit a report to the Speaker of the
House and the President of the Senate not later than the first day
of March, two thousand six, and every five years thereafter
regarding the effectiveness of the programs authorized by this law.
§22-15A-24. Covered manufacturers; prohibited sales; effective
date.
(a) This section, along with sections twenty-five, twenty-six,
twenty-seven, twenty-eight and twenty-nine of this article apply to
a manufacturer that manufactured an average of more than one
thousand covered electronic devices per year in the three-year
period immediately preceding the initial registration required in
section twenty-five of this article.
(b) On or after the first day of July, two thousand nine, a
manufacturer may not sell or lease or offer for sale or lease to
any person in the state a new covered electronic device or
television unless:
(1) The covered electronic device is labeled with the name of
the manufacturer or the manufacturer's brand label; and
(2) The manufacturer has registered with and submitted a
registration fee to the secretary as provided in section
twenty-five of this article.
(c) If a manufacturer is subject to the requirements of
sections twenty-four, twenty-five and twenty-six of this article,
a retailer may not sell or lease or offer for sale or lease to any person in the state a new covered electronic device unless the
manufacturer has complied with the requirements of this section and
sections twenty-five and twenty-six of this article.
§22-15A-25. Manufacturer registration; registration fees;
creating the Covered Electronic Devices Takeback
Fund.
(a) Each manufacturer wishing to sell or lease covered
electronic devices shall register with the secretary no later than
the first day of January, two thousand nine, and each year
thereafter. The secretary shall provide a registration form which
at a minimum shall include:
(1) The name, address and telephone number of the
manufacturer;
(2) The brand names under which the manufacturer sells or
offers for sale covered electronic devices or televisions in the
state;
(3) Whether the manufacturer has implemented takeback or
recycling program for its covered electronic devices or televisions
or both;
(4) If the manufacturer has implemented a takeback or
recycling program for its covered electronic devices, the
manufacturer must provide a toll-free number or website address
that provides information about the takeback or recycling program,
including a detailed description of how a person may return a
covered electronic device for recycling, refurbishing or reuse.
(5) The secretary may request additional information necessary
to further the goals of this program.
(b) One year after the implementation of the program and each
year thereafter, the manufacturer must submit a report to the
secretary on the implementation of the program during the prior
year, including:
(1) The total weight of covered electronic devices received by
the program from West Virginia during the prior year;
(2) The total number of covered electronic devices from West
Virginia recycled, refurbished and reused during the prior year;
(3) The processes and methods used to recycle, refurbish or
reuse the covered electronic devices received from West Virginia;
and
(4) If the manufacturer has implemented a covered electronic
device or television takeback program, be updated prior to any
significant change in the program.
(c) The covered electronic device manufacturer registration
fee is:
(1) Ten thousand dollars for the initial registration by the
manufacturer that has not implemented a takeback program and is due
no later than the first day of January, two thousand nine;
(2) Three thousand dollars for the initial registration by the
manufacturer that has implemented a takeback program and is due no
later than the first day of January, two thousand nine;
(3) Five thousand dollars for each subsequent annual
registration by a manufacturer that did not have an implemented covered electronic device takeback program in the prior year; and
(4) Five hundred for each subsequent annual registration by a
manufacturer that had implemented and maintained a covered
electronic device takeback program in the prior year.
(d) All registration fees collected shall be deposited in a
special account in the State Treasury to be known as the Covered
Electronic Devices Takeback Fund which is to be administered by the
secretary. Expenditures from the fund shall be for recycling
grants to counties and municipalities for recycling or other
programs that divert covered electronic devices from the waste
stream and for the secretary's administrative expense in
administering the requirements of sections twenty-four, twenty-
five, twenty-six, twenty-seven and twenty-eight of this article.
Expenditures are not authorized from collections but are to be made
only in accordance with the appropriation by the Legislature and in
accordance with the provisions of article three, chapter twelve of
this code and upon fulfillment of the provisions of article two,
chapter eleven-b of this code:
Provided, That for the fiscal year
ending the thirtieth day of June, two thousand nine, expenditures
are authorized from collections rather than pursuant to
appropriation by the Legislature.
(e) The secretary shall review the registration submitted
under this section. If the registration does not meet the
requirements of this section and the rules adopted by the
secretary, the secretary shall notify the manufacturer of the
insufficiency.
(f) Within sixty days after receipt of a notice of
insufficiency, the manufacturer shall submit a revised registration
that addresses the insufficiencies noted by the secretary.
(g) The secretary shall maintain a list of registered covered
electronic device manufacturers.
(h) The secretary shall publish the list of registered covered
electronic device manufacturers online to provide retailers easy
access to the manufacturers authorized to sell their products in
this state.
§22-15A-26. Manufacturers' takeback programs.
(a) Before a manufacturer may offer a covered electronic
device for sale or lease in this state, the manufacturer may:
(1) Adopt and implement a takeback program; and
(2) Affix a permanent, readily visible label to the covered
electronic device or television with the manufacturer's brand.
(b) The takeback program shall enable a consumer to recycle
covered electronic devices or televisions without paying a separate
fee at the time of recycling and shall include provisions for;
(1) The manufacturer's collection from a consumer of any
covered electronic device that has reached the end of its useful
life and is labeled with the manufacturer's brand; and
(2) Recycling or reuse of covered electronic devices collected
under subdivision one of this section.
(c) The collection of covered electronic devices provided
under the takeback program must be reasonable, convenient and
available to consumers in the state and designed to meet the collection needs of consumers in the state. Examples of collection
methods that alone are combined meet the convenience requirements
of this section include:
(1) A system by which the manufacturer or the manufacturer's
designee offers the consumer a system for returning covered
electronic devices by mail at no charge to the consumer.
(2) A system using a physical collection site that the
manufacturer or the manufacturer's designee operates and to which
the consumer may return covered electronic devices.
(3) A system using collection events held by the manufacturer
or the manufacturer's designee at which the consumer may return
covered electronic devices.
(d) Collection services under this section may use existing
collection infrastructure for handling covered electronic devices
and should encourage the inclusion of systems jointly managed by a
group of manufacturers, electronic recyclers and repair shops,
recyclers of other commodities, reuse organizations, not-for-profit
corporations, retailers, recyclers and other suitable operations.
If a manufacturer or its designee offers a mail-back system as
described in this section, either individually, by working together
with a group of manufacturers or by working with others, it shall
be deemed to meet the convenience requirements of this section.
(e) The takeback program shall include information for the
consumer on how and where to return the manufacturer's covered
electronic device. The manufacturer shall include collection,
recycling and reuse information on the manufacturer's publicly available website. The manufacturer shall provide collection,
recycling and reuse information to the secretary. The manufacturer
may include collection, recycling and reuse information in the
packaging or in the other materials that accompany the
manufacturer's covered electronic devices when the equipment is
sold.
(f) If more that one person is a manufacturer of a certain
brand of covered electronic devices as defined in section two of
this article, any of persons may assume responsibility for and
satisfy the obligations of a manufacturer under this article for
that brand. If none of those persons assumes responsibility or
satisfies the obligations of a manufacturer for the covered
electronic devices of that brand, the secretary may consider any of
those persons to be the responsible manufacturer for purposes of
sections twenty-four, twenty-five, twenty-six and twenty-seven of
this article.
§22-15A-27. Civil actions and administrative fines; powers and
duties of secretary.
(a) Civil action. -- In addition to being subject to
injunctive relief under this article, a manufacturer who violates
any provision of section twenty-four or twenty-five of this article
or of any rule adopted pursuant to section twenty-four or
twenty-five of this article is liable for a civil penalty not to
exceed ten thousand dollars to be collected in a civil action
brought by the secretary. Venue for such actions shall be in the
circuit court of Kanawha County. Each day a violation occurs is a separate violation.
(b) Administrative action. -- (1) In addition to any other
remedies avaiable at law and after an opportunity for a hearing
which may be waived in writing by the person accused of a
violation, the secretary may impose a penalty for violation of any
provision of section twenty-four or twenty-five of this article or
any rule adopted thereunder. The secretary's decision may be
appealed to the Environmental Quality Board.
(2) The penalty imposed on a person under this subsection
shall be up to one thousand dollars for each violation, but not to
exceed a total of fifty thousand dollars a year. Each day a
violation occurs is a separate violation under this subsection.
(3) Any penalty imposed under this subsection is payable to
the State of West Virginia and collectible in any manner provided
by law for the collection of debts.
(4) Any penalty collected under this section shall be placed
in the Covered Electronic Devices Takeback Fund.
(c) Powers and duties of secretary. - The secretary may
conduct audits and inspections to determine compliance with the
provisions of sections twenty-four and twenty-five of this article
and may take enforcement action as provided herein. The secretary
may remove a manufacturer from the registration list for failure to
pay any penalty imposed under this section and upheld on appeal.
§22-15A-28. Retailer penalties.
(a) The secretary may assess against any retailer that sells
covered electronic devices not authorized for sale in this state a penalty up to five hundred dollars for each violation, but not to
exceed five thousand total for the year. The secretary's decision
may be appealed to the Environmental Quality Board.
(b) A fine under subsection (a) of this section may be
assessed only after the retailer that committed the violation has
been issued three warnings from the secretary regarding the
violation.
(c) Each day on which a violation occurs or continues is a
separate violation under this section.
(d) All penalties assessed under this section shall be
deposited into the Covered Electronic Devices Takeback Fund.
§22-15A-29. Rulemaking.
The secretary shall propose for promulgation emergency and
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code necessary to implement
the provisions of sections twenty-four through twenty-eight,
inclusive, of this article by the first day of January, two
thousand nine.
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(NOTE: The purpose of this bill is to establish a convenient
and environmentally sound recovery program for the collection,
recycling and reuse of covered electronic devices that have reached
the end of their useful lives, maximize recovery of resources
contained in discarded covered electronic devices and prevent
improper disposal of materials in electronic devices in state
landfills.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§22-15A-24 through §22-15A-29 are new; therefore,
strike-throughs and underscoring have been omitted.)
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