BILL REQ. #: S-1062.2
| State of Washington | 63rd Legislature | 2013 Regular Session |
Read first time 02/07/13. Referred to Committee on Energy, Environment & Telecommunications.
AN ACT Relating to mercury-containing lights; amending RCW 70.275.060, 70.275.070, 70.275.090, 70.275.100, 70.275.110, and 70.275.140; reenacting and amending RCW 70.275.020; adding a new section to chapter 70.275 RCW; and repealing RCW 70.275.030, 70.275.040, 70.275.050, 70.275.120, and 70.275.130.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 70.275.020 and 2010 c 130 s 2 are each reenacted and
amended to read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Brand" means a name, symbol, word, or mark that identifies a
product, rather than its components, and attributes the product to the
owner of the brand as the producer.
(2) "Collection" or "collect" means, except for persons involved in
mail-back programs:
(a) The activity of accumulating any amount of mercury-containing
lights at a location other than the location where the lights are used
by covered entities, and includes curbside collection activities,
household hazardous waste facilities, and other registered drop-off
locations; and
(b) The activity of transporting mercury-containing lights in the
state, where the transporter is not a generator of unwanted mercury-containing lights, to a location for purposes of accumulation.
(3) "Covered entities" means((:)) a single-family or a multifamily household generator ((
(a)and
persons)) that delivers no more than fifteen mercury-containing lights
((to registered collectors for a product stewardship program during a
ninety-day period; and)).
(b) A single-family or a multifamily household generator and
persons that utilize a registered residential curbside collection
program or a mail-back program for collection of mercury-containing
lights and that discards no more than fifteen mercury-containing lights
into those programs during a ninety-day period
(4) "Department" means the department of ecology.
(5) "Final disposition" means the point beyond which no further
processing takes place and materials from mercury-containing lights
have been transformed for direct use as a feedstock in producing new
products, or disposed of or managed in permitted facilities.
(6) "Hazardous substances" or "hazardous materials" means those
substances or materials identified by rules adopted under chapter
70.105 RCW.
(7) "Mail-back program" means the use of a prepaid postage
container with mercury vapor barrier packaging that is used for the
collection and recycling of mercury-containing lights from covered
entities ((as part of a product stewardship program)) and ((is))
transported by the United States postal service or a common carrier.
(8) "Mercury-containing lights" means lamps, bulbs, tubes, or other
devices that contain mercury and provide functional illumination in
homes, businesses, and outdoor stationary fixtures.
(9) "Mercury vapor barrier packaging" means sealable containers
that are specifically designed for the storage, handling, and transport
of mercury-containing lights in order to prevent the escape of mercury
into the environment by volatilization or any other means, and that
meet the requirements for transporting by the United States postal
service or a common carrier.
(10) "Orphan product" means a mercury-containing light that lacks
a producer's brand, or for which the producer is no longer in business
and has no successor in interest, or that bears a brand for which the
department cannot identify an owner.
(11) "Person" means a sole proprietorship, partnership,
corporation, nonprofit corporation or organization, limited liability
company, firm, association, cooperative, or other legal entity located
within or outside Washington state.
(12) "Processing" means recovering materials from unwanted products
for use as feedstock in new products. Processing must occur at
permitted facilities.
(13) "Producer" means a person that:
(a) Has or had legal ownership of the brand, brand name, or cobrand
of a mercury-containing light sold in or into Washington state, except
for persons whose primary business is retail sales;
(b) Imports or has imported mercury-containing lights branded by a
producer that meets the requirements of (a) of this subsection and
where that producer has no physical presence in the United States;
(c) If (a) and (b) of this subsection do not apply, makes or made
an unbranded mercury-containing light that is sold or has been sold in
or into Washington state; or
(d)(i) Sells or sold at wholesale or retail a mercury-containing
light; (ii) does not have legal ownership of the brand; and (iii)
elects to fulfill the responsibilities of the producer for that
product.
(14) (("Product stewardship" means a requirement for a producer of
mercury-containing lights to manage and reduce adverse safety, health,
and environmental impacts of the product throughout its life cycle,
including financing and providing for the collection, transporting,
reusing, recycling, processing, and final disposition of their
products.)) "Recovery" means the collection and transportation of
unwanted mercury-containing lights under this chapter.
(15) "Product stewardship plan" or "plan" means a detailed plan
describing the manner in which a product stewardship program will be
implemented.
(16) "Product stewardship program" or "program" means the methods,
systems, and services financed and provided by producers of mercury-containing lights generated by covered entities that addresses product
stewardship and includes collecting, transporting, reusing, recycling,
processing, and final disposition of unwanted mercury-containing
lights, including a fair share of orphan products.
(17)
(((18))) (15)(a) "Recycling" means transforming or remanufacturing
unwanted products into usable or marketable materials for use other
than landfill disposal or incineration.
(b) "Recycling" does not include energy recovery or energy
generation by means of combusting unwanted products with or without
other waste.
(((19))) (16) "Reporting period" means the period commencing
January 1st and ending December 31st in the same calendar year.
(((20))) (17) "Residuals" means nonrecyclable materials left over
from processing an unwanted product.
(((21))) (18) "Retailer" means a person who offers mercury-containing lights for sale at retail through any means including, but
not limited to, remote offerings such as sales outlets, catalogs, or
the internet, but does not include a sale that is a wholesale
transaction with a distributor or a retailer.
(((22))) (19)(a) "Reuse" means a change in ownership of a mercury-containing light or its components, parts, packaging, or shipping
materials for use in the same manner and purpose for which it was
originally purchased, or for use again, as in shipping materials, by
the generator of the shipping materials.
(b) "Reuse" does not include dismantling of products for the
purpose of recycling.
(((23))) (20) "Stakeholder" means a person who may have an interest
in or be affected by ((a product stewardship program)) this chapter.
(((24) "Stewardship organization" means an organization designated
by a producer or group of producers to act as an agent on behalf of
each producer to operate a product stewardship program.)) (21) "Unwanted product" means a mercury-containing light no
longer wanted by its owner or that has been abandoned, discarded, or is
intended to be discarded by its owner.
(25)
NEW SECTION. Sec. 2 A new section is added to chapter 70.275 RCW
to read as follows:
(1) Every producer of mercury-containing lights sold in Washington
must individually pay a registration fee, annually until December 31,
2025, not to exceed ten thousand dollars per year, to the department
for the limited purpose of reimbursing documented costs for recycling
and transportation of unwanted product from covered entities. The
registration fee must be deposited into the mercury-containing light
recycling account created in this section.
(2) Every producer of mercury-containing lights sold in Washington
must individually pay an administration fee not to exceed five thousand
dollars annually until December 31, 2025, to the department for its
administration and enforcement costs. The administration fee must be
deposited into the mercury-containing light recycling account created
in this section.
(3) The mercury-containing light recycling account is created in
the custody of the state treasurer. All funds received from producers
under this chapter and penalties collected under this chapter must be
deposited in the account. Expenditures from the account may be used
only for administering this chapter. Only the director of the
department or the director's designee may authorize expenditures from
the account. The account is subject to the allotment procedures under
chapter 43.88 RCW, but an appropriation is not required for
expenditures.
Sec. 3 RCW 70.275.060 and 2010 c 130 s 6 are each amended to read
as follows:
(1) All mercury-containing lights collected in the state ((by
product stewardship programs or other collection programs)) must be
recycled and any process residuals must be managed in compliance with
applicable laws.
(2) Mercury recovered from retorting must be recycled or placed in
a properly permitted hazardous waste landfill, or placed in a properly
permitted mercury repository.
Sec. 4 RCW 70.275.070 and 2010 c 130 s 7 are each amended to read
as follows:
(((1))) Except for persons involved in registered mail-back
programs, a person who collects unwanted mercury-containing lights in
the state, receives funding ((through a product stewardship program for
mercury-containing lights)) from the department under this chapter, and
who is not a generator of unwanted mercury-containing lights must:
(((a))) (1) Register with the department as a collector of unwanted
mercury-containing lights. Until the department adopts rules for
collectors, the collector must provide to the department the legal name
of the person or entity owning and operating the collection location,
the address and phone number of the collection location, and the name,
address, and phone number of the individual responsible for operating
the collection location and update any changes in this information
within thirty days of the change;
(((b))) (2) Maintain a spill and release response plan at the
collection location that describes the materials, equipment, and
procedures that will be used to respond to any mercury release from an
unwanted mercury-containing light;
(((c))) (3) Maintain a worker safety plan at the collection
location that describes the handling of the unwanted mercury-containing
lights at the collection location and measures that will be taken to
protect worker health and safety; and
(((d))) (4) Use packaging and shipping material that will minimize
the release of mercury into the environment and minimize breakage and
use mercury vapor barrier packaging if mercury-containing lights are
transported by the United States postal service or a common carrier.
(((2) A person who operates a curbside collection program or owns
or operates a mail-back business participating in a product stewardship
program for mercury-containing lights and uses the United States postal
service or a common carrier for transport must register with the
department and use mercury vapor barrier packaging for curbside
collection and mail-back containers.))
Sec. 5 RCW 70.275.090 and 2010 c 130 s 9 are each amended to read
as follows:
As of January 1, ((2013)) 2014, no producer, wholesaler, retailer,
electric utility, or other person may distribute, sell, or offer for
sale mercury-containing lights for residential use to any person in
this state unless the producer ((is participating in a product
stewardship program under a plan approved by the department)) of the
mercury-containing light has paid the registration fee and the
administration fee as required by section 2 of this act.
Sec. 6 RCW 70.275.100 and 2010 c 130 s 10 are each amended to
read as follows:
(1) The department shall send a written warning and a copy of this
chapter and any rules adopted to implement this chapter to a producer
((who is not participating in a product stewardship program approved by
the department and)) whose mercury-containing lights are being sold in
or into the state and is not in compliance with the requirements of
section 2 of this act.
(2) A producer ((not participating in a product stewardship program
approved by the department)) who is not in compliance with section 2 of
this act and whose mercury-containing lights continue to be sold in or
into the state sixty days after receiving a written warning from the
department shall be assessed a penalty of up to one thousand dollars
for each violation. A violation is one day of sales.
(3) ((If any producer fails to implement its approved plan, the
department shall assess a penalty of up to five thousand dollars for
the first violation along with notification that the producer must
implement its plan within thirty days of the violation. After thirty
days, any producer failing to implement their approved plan must be
assessed a penalty of up to ten thousand dollars for the second and
each subsequent violation. A subsequent violation occurs each thirty-day period that the producer fails to implement the approved plan.)) Penalties prescribed under this section must be reduced by
fifty percent if the producer complies within thirty days of the second
violation notice.
(4) The department shall send a written warning to a producer that
fails to submit a product stewardship plan, update or change the plan
when required, or submit an annual report as required under this
chapter. The written warning must include compliance requirements and
notification that the requirements must be met within sixty days. If
requirements are not met within sixty days, the producer will be
assessed a ten thousand dollar penalty per day of noncompliance
starting with the first day of notice of noncompliance.
(5)
(((6))) (4) A producer may appeal penalties prescribed under this
section to the pollution control hearings board created under chapter
43.21B RCW.
Sec. 7 RCW 70.275.110 and 2010 c 130 s 11 are each amended to
read as follows:
(1) The department shall provide on its web site a list of all
producers ((participating in a product stewardship plan that the
department has approved and a list of all producers the department has
identified as noncompliant with this chapter and any rules adopted to
implement this chapter)) in compliance with section 2 of this act and
any rules adopted to implement that section.
(2) Product wholesalers, retailers, distributors, and electric
utilities must check the department's web site or producer-provided
written verification to determine if producers of products they are
selling in or into the state are in compliance with this chapter.
(3) ((No one may distribute or sell mercury-containing lights in or
into the state from producers who are not participating in a product
stewardship program or who are not in compliance with this chapter and
rules adopted under this chapter.)) A person who sells fluorescent
lamps at retail for residential customers may post the following notice
in twenty-four point type or larger in a manner clearly visible to a
consumer examining fluorescent lamps offered for sale:"Fluorescent bulbs save energy and reduce environmental
pollution. NOTE: Fluorescent bulbs contain a small amount of
mercury and must be properly recycled at the end of their use.
Contact your municipality or www.lamprecycle.org for bulb
recycling options."
A retailer may include additional language in the notice in order
to promote the sale or in-store recycling of fluorescent lamps,
provided that the notice language set forth in this subsection (3) is
present. A producer, individually or collectively, must provide a
printed copy of the notice, free of charge, at the request of any
retailer of mercury-containing lights for its retail establishment in
the state.
(4) The department shall serve, or send with delivery confirmation,
a written warning explaining the violation to any person known to be
distributing or selling mercury-containing lights in or into the state
from producers who are not ((participating in a product stewardship
program or who are not)) in compliance with ((this chapter)) section 2
of this act and rules adopted ((under this chapter)) to implement that
section.
(5) Any person who continues to distribute or sell mercury-containing lights from a producer that is not ((participating in an
approved product stewardship program)) in compliance with the
requirements of section 2 of this act and rules adopted to implement
that section sixty days after receiving a written warning from the
department may be assessed a penalty two times the value of the
products sold in violation of this chapter or five hundred dollars,
whichever is greater. The penalty must be waived if the person
verifies that the person has discontinued distribution or sales of
mercury-containing lights within thirty days of the date the penalty is
assessed. A retailer may appeal penalties to the pollution control
hearings board.
(6) The department shall adopt rules to implement this section.
(7) A sale or purchase of mercury-containing lights as a casual or
isolated sale as defined in RCW 82.04.040 is not subject to the
provisions of this section.
(8) A person primarily engaged in the business of reuse and resale
of a used mercury-containing light is not subject to the provisions of
this section when selling used working mercury-containing lights, for
use in the same manner and purpose for which it was originally
purchased.
(9) In-state distributors, wholesalers, and retailers in possession
of mercury-containing lights on the date that restrictions on the sale
of the product become effective may exhaust their existing stock
through sales to the public.
Sec. 8 RCW 70.275.140 and 2010 c 130 s 14 are each amended to
read as follows:
(1) The department may adopt rules ((necessary to implement,
administer, and enforce this chapter)) to equitably scale the
producer's registration fee and the administration fee required by
section 2 of this act, taking into consideration the producer's
estimated sales of mercury-containing lights in the state, and
maximizing the aggregate receipts collected for the mercury-containing
light recycling account by not discouraging producers of mercury-containing lights from selling their products in the state.
(2) ((The department may adopt rules to establish performance
standards for product stewardship programs and may establish
administrative penalties for failure to meet the standards.)) Beginning October 1, 2014, the department shall annually
invite comments from retailers, consumer groups, electric utilities,
the Northwest power and conservation council, and other interested
parties regarding the impacts of the requirements of this chapter on
the availability or purchase of energy efficient lighting within the
state. If the department determines that evidence shows the
requirements of this chapter have resulted in negative impacts on the
availability or purchase of energy efficient lighting in the state, the
department shall report this information by December 31st of each year
to the appropriate committees of the legislature with recommendations
for changes to the provisions of this chapter.
(3) By December 31, 2010, and annually thereafter until December
31, 2014, the department shall report to the appropriate committees of
the legislature concerning the status of the product stewardship
program and recommendations for changes to the provisions of this
chapter.
(4) Beginning October 1, 2014, the department shall annually invite
comments from local governments, communities, and citizens to report
their satisfaction with services provided by product stewardship
programs. This information must be used by the department to determine
if the plan operator is meeting convenience requirements and in
reviewing proposed updates or changes to product stewardship plans.
(5)
(((6))) (3) Beginning October 1, 2014, the department shall
annually invite comments from retailers, consumer groups, electric
utilities, the Northwest power and conservation council, and other
interested parties regarding the availability of energy efficient
nonmercury lighting to replace mercury-containing lighting within the
state. If the department determines that evidence shows that energy
efficient nonmercury-containing lighting is available and achieves
similar energy savings as mercury lighting at similar cost, the
department shall report this information by December 31st of each year
to the appropriate committees of the legislature with recommendations
for legislative changes to reduce mercury use in lighting.
(((7))) (4) Beginning October 1, 2014, the department shall
annually estimate the overall statewide recycling rate for mercury-containing lights and calculate that portion of the recycling rate
attributable to ((the product stewardship program)) this chapter.
(((8))) (5) The department may require submission of independent
performance evaluations and report evaluations documenting the
effectiveness of mercury vapor barrier packaging in preventing the
escape of mercury into the environment. The department may restrict
the use of packaging for which adequate documentation has not been
provided. ((Restricted packaging may not be used in any product
stewardship program required under this chapter.))
NEW SECTION. Sec. 9 The following acts or parts of acts are each
repealed:
(1) RCW 70.275.030 (Product stewardship program) and 2010 c 130 s
3;
(2) RCW 70.275.040 (Submission of proposed product stewardship
plans -- Department to establish rules -- Public review -- Plan update--Annual report) and 2010 c 130 s 4;
(3) RCW 70.275.050 (Financing the mercury-containing light
recycling program) and 2010 c 130 s 5;
(4) RCW 70.275.120 (Producers must pay annual fees) and 2010 c 130
s 12; and
(5) RCW 70.275.130 (Product stewardship programs account) and 2010
c 130 s 13.