BILL REQ. #:  S-4370.2 

READ FIRST TIME 02/03/12.   

     AN ACT Relating to authorizing producers of mercury-containing lights to include an environmental handling assessment to finance mercury-containing light stewardship programs; amending RCW 70.275.030; and creating a new section.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that additional flexibility may be needed for manufacturers who are selling mercury-containing lights for residential use in Washington to comply with the requirements of chapter 70.275 RCW in order to provide a sustainable funding mechanism and provide effective state protections to producer-operated programs under chapter 70.275 RCW.
     (2) The legislature declares that collaboration among producers, groups of producers, product stewardship organizations operated by the producers, or product stewardship organizations contracted by the department of ecology, or the mercury-containing light retailers, is necessary and is in the best interest of the public in order to provide a sustainable funding mechanism and otherwise comply with the requirements of chapter 70.275 RCW. The legislature therefore intends to exempt from state antitrust laws, and to provide immunity from federal antitrust laws through the state action doctrine, for the specific activities undertaken pursuant to efforts designed and implemented under chapter 70.275 RCW that might otherwise be constrained by such laws. The legislature does not intend and does not otherwise authorize any person or entity to engage in activities or to conspire to engage in activities that would constitute per se violations of state and federal antitrust laws including, but not limited to, agreements among competitors as to the final pricing of any wholesale or retail product.

Sec. 2   RCW 70.275.030 and 2010 c 130 s 3 are each amended to read as follows:
     (1) Every producer of mercury-containing lights sold in or into Washington state for residential use must fully finance and participate in a product stewardship program for that product, including the department's costs for administering and enforcing this chapter.
     (2) Every producer must:
     (a) Participate in a product stewardship program approved by the department and operated by a product stewardship organization contracted by the department. All producers must finance and participate in the plan operated by the product stewardship organization, unless the producer obtains department approval for an independent plan as described in (b) of this subsection; or
     (b) Finance and operate, either individually or jointly with other producers, a product stewardship program approved by the department.
     (3)(a) A producer, group of producers, product stewardship organization operated by producers, or product stewardship organization contracted by the department is authorized to include financing provisions that may include an environmental handling assessment that is collected by the producer and remitted to the product stewardship organization. Producers selling mercury-containing lights for residential use may add an environmental handling assessment to the cost of mercury-containing lights sold to wholesalers, retailers, and distributors, who may add the environmental handling assessment to the purchase price of mercury-containing lights sold in or into the state. Funds collected using an environmental handling assessment may not exceed the cost of the product stewardship program, but may include reasonable reserves for mercury-containing lights that are projected to be recycled in the state.
     (b) A product stewardship organization must provide an annual financial audit to the department when the product stewardship organization implements an environmental handling assessment.
     (4) A producer, group of producers, or product stewardship organization funded by producers must pay all administrative and operational costs associated with their program or programs, except for the collection costs associated with curbside and mail-back collection programs. For curbside and mail-back programs, a producer, group of producers, or product stewardship organization shall finance the costs of transporting mercury-containing lights from accumulation points and for processing mercury-containing lights collected by curbside and mail-back programs. For collection locations, including household hazardous waste facilities, charities, retailers, government recycling sites, or other suitable locations, a producer, group of producers, or product stewardship organization shall finance the costs of collection, transportation, and processing of mercury-containing lights collected at the collection locations.
     (((4))) (5) Product stewardship programs shall collect unwanted mercury-containing lights delivered from covered entities for reuse, recycling, processing, or final disposition, and not charge a fee when lights are dropped off or delivered into the program.
     (((5))) (6) Product stewardship programs shall provide, at a minimum, no cost services in all cities in the state with populations greater than ten thousand and all counties of the state on an ongoing, year-round basis.
     (((6))) (7) All product stewardship programs operated under approved plans must recover their fair share of unwanted covered products as determined by the department.
     (((7))) (8) The department or its designee may inspect, audit, or review audits of processing and disposal facilities used to fulfill the requirements of a product stewardship program.
     (((8))) (9) No product stewardship program required under this chapter may use federal or state prison labor for processing unwanted products.
     (((9))) (10) Product stewardship programs for mercury-containing lights must be fully implemented by January 1, 2013.