BILL REQ. #:  H-0778.2 

Read first time 01/28/13.   Referred to Committee on Environment.

     AN ACT Relating to stewardship of household mercury-containing lights; amending RCW 70.275.030, 70.275.040, 70.275.050, and 70.275.120; reenacting and amending RCW 70.275.020; adding new sections to chapter 43.131 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that additional flexibility is needed for mercury light manufacturers 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 product stewardship programs as contemplated under chapter 70.275 RCW.

Sec. 2   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) A single-family or a multifamily household generator and persons that deliver 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.
     (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) "Recovery" means the collection and transportation of unwanted mercury-containing lights under this chapter.
     (18)(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) "Reporting period" means the period commencing January 1st and ending December 31st in the same calendar year.
     (20) "Residuals" means nonrecyclable materials left over from processing an unwanted product.
     (21) "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)(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) "Stakeholder" means a person who may have an interest in or be affected by a product stewardship program.
     (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.
     (25) "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.

Sec. 3   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)) individually or jointly with other producers participate in a product stewardship program approved by the department for that product((, including the department's costs for administering and enforcing this chapter)). Approved product stewardship plans must be financed in a manner prescribed by RCW 70.275.050 and must include the department's administration and enforcement costs as provided in RCW 70.275.050(1).
     (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 producer, group of producers, or product stewardship organization funded by producers)) must pay all administrative and operational costs associated with ((their)) the 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))) (3) 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))) (4) 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))) (5) All product stewardship programs operated under approved plans must recover their fair share of unwanted covered products as determined by the department.
     (((7))) (6) 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))) (7) No product stewardship program required under this chapter may use federal or state prison labor for processing unwanted products.
     (((9))) (8) Product stewardship programs for mercury-containing lights must be fully implemented by January 1, ((2013)) 2014.

Sec. 4   RCW 70.275.040 and 2010 c 130 s 4 are each amended to read as follows:
     (1) A producer, group of producers, or ((product)) stewardship ((program)) organization submitting a proposed product stewardship plan under RCW 70.275.030(((2)(b))) must submit that plan by ((January)) June 1st of the year prior to the planned implementation.
     (2) The department shall establish rules for plan content. Plans must include but are not limited to:
     (a) All necessary information to inform the department about the ((plan operator)) stewardship organization and participating producers and their brands;
     (b) The management and organization of the product stewardship program that will oversee the collection, transportation, and processing services;
     (c) The identity of collection, transportation, and processing service providers, including a description of the consideration given to existing residential curbside collection infrastructure and mail-back systems as an appropriate collection mechanism;
     (d) How the product stewardship program will seek to use businesses within the state, including transportation services, retailers, collection sites and services, existing curbside collection services, existing mail-back services, and processing facilities;
     (e) A description of how the public will be informed about the recycling program, including provisions providing consumers with information describing collection opportunities for postconsumer household mercury-containing lights and information promoting waste prevention and recycling. The information must also make consumers aware that funding for mercury-containing light recycling programs in the state has been added to the purchase price of all household mercury-containing lights sold in this state;
     (f) A description of the proposed financing system required under RCW 70.275.050, including: (i) The determination of the recommended environmental handling charge, taking into consideration each of the factors provided in RCW 70.275.050(3) (a) through (e); and (ii) the mechanism by which the environmental handling charge must be collected and remitted by a stewardship organization as provided in RCW 70.275.050(2);
     (g) How mercury and other hazardous substances will be handled for collection through final disposition;
     (h) A public review and comment process; and
     (i) Any other information deemed necessary by the department to ensure an effective mercury light product stewardship program that is in compliance with all applicable laws and rules.
     (3) All plans submitted to the department must be made available for public review on the department's web site and at the department's headquarters.
     (4) At least two years from the start of the product stewardship program and once every four years thereafter, a producer, group of producers, or product stewardship organization operating a product stewardship program must update its product stewardship plan and submit the updated plan to the department for review and approval according to rules adopted by the department.
     (5) Each product stewardship program shall submit an annual report to the department describing the results of implementing their plan for the prior year. The department may adopt rules for reporting requirements. All reports submitted to the department must be made available for public review on the department's web site and at the department's headquarters.

Sec. 5   RCW 70.275.050 and 2010 c 130 s 5 are each amended to read as follows:
     (1) ((All producers that sell mercury-containing lights in or into the state of Washington are responsible for financing the mercury-containing light recycling program required by RCW 70.275.030.
     (2) Each producer shall pay fifteen thousand dollars to the department to contract for a product stewardship program to be operated by a product stewardship organization. The department shall retain five thousand dollars of the fifteen thousand dollars for administration and enforcement costs.
     (3) A producer or producers participating in an independent plan, as permitted under RCW 70.275.030(2)(b), must pay the full cost of operation. Each producer participating in an approved independent plan shall pay an annual fee of five thousand dollars to the department for administration and enforcement costs.)) Each producer shall pay an annual fee of up to five thousand dollars to the stewardship organization for the department's administration and enforcement costs as part of the financing of a product stewardship program. The stewardship organization shall consult with the department as to the projected amount of the department's administration and enforcement costs in connection with determining the amount of the annual fee to be included in the product stewardship program financing. By April 1st of each year, a stewardship organization shall remit to the department the aggregate amount of the annual fees paid by producers to the stewardship organization for this purpose.
     (2) A product stewardship program's administrative and operating costs must be financed by an environmental handling charge to be paid by consumers purchasing household mercury-containing lights at retail. The recommended environmental handling charge to be paid by retail purchasers may, but is not required to, vary by the type of mercury-containing light. The stewardship organization shall consult with qualified recyclers and producers in connection with the determination of its recommendations. The stewardship organization shall collect the environmental handling charge either: (a) Directly from producers who shall add the charge to the cost of the household mercury-containing light paid by their customers in the state; or (b) from retailers who elect to pay the amount of the environmental handling charge collected from retail purchasers of household mercury-containing lights and add the charge to the retail price of the household mercury-containing light. The payments must be accompanied by a return in the form as provided in the approved product stewardship plan.
     (3) No later than ninety days after the producers' or stewardship organization's recommended annual fee is submitted under subsection (1) of this section, the department shall determine the amount of the environmental handling charge to be paid by retail purchasers of household mercury-containing lights in the state for each household mercury-containing light purchased from a retailer, after reviewing the product stewardship plan, consulting with the producers, any stewardship organization, and qualified recyclers, taking into consideration: (a) The anticipated number of household mercury-containing lights sold to covered entities in the state at retail during the calendar year; (b) the number of spent household mercury-containing lights delivered from covered entities expected to be recycled during the calendar year; (c) the cost of collecting, transporting, and recycling spent household mercury-containing lights delivered from covered entities to collection locations identified in RCW 70.275.030(2); (d) the administrative costs of the stewardship organization; (e) the cost of recycling program elements described under RCW 70.275.040(2)(e); and (f) a prudent reserve not to exceed fifteen percent.
     (4) By August 1, 2015, and no more frequently than once per year and no less frequently than once every two years thereafter, the department shall review the environmental handling charge established under subsection (3) of this section and make any adjustments to the environmental handling charge to ensure that there are sufficient revenues to fund the cost of the program. Adjustments to the environmental handling charge that are made on or before August 1st apply to the calendar year beginning the following January 1st. The department shall base an adjustment of the environmental handling charge on both of the following factors: (a) The sufficiency, and any surplus, of revenues in the product stewardship programs account created in RCW 70.275.130 to fund the transportation and recycling of spent household mercury-containing lights that are projected to be recycled in the state; and (b) the sufficiency of revenues in the product stewardship programs account for the stewardship organization to administer the program, plus a prudent reserve not to exceed fifteen percent of that amount.

Sec. 6   RCW 70.275.120 and 2010 c 130 s 12 are each amended to read as follows:
     ((All producers shall pay the department annual fees to cover the cost of administering and enforcing this chapter. The department may prioritize the work to implement this chapter if fees are not adequate to fund all costs of the program.)) (1) It is the intent of the legislature that a producer, group of producers, or a stewardship organization preparing, submitting, and implementing a spent household mercury-containing light cost-reimbursement program pursuant to this chapter, as well as distributors or retailers, are granted immunity, individually and jointly, from federal and state antitrust laws for the limited purpose of establishing, implementing, and complying with the requirements of this chapter. It is further the intent of the legislature that the activities of the producer, group of producers, stewardship organization, and the distributors or retailers that implement and comply with the provisions of this chapter may not be considered to be in restraint of trade, a conspiracy, or combination thereof, or any other unlawful activity in violation of any provisions of federal or state antitrust laws.
     (2) The department shall actively supervise the conduct of the stewardship organization, the producers of mercury-containing lights, distributors, and retailers in connection with their conduct authorized by this chapter. The department may require the producers, the stewardship organization, distributors, or retailers to take those actions that the department considers necessary to ensure that the stewardship organization is not engaging in conduct that is not authorized under this chapter.

NEW SECTION.  Sec. 7   A new section is added to chapter 43.131 RCW to read as follows:
     The product stewardship program for the disposal of mercury-containing lights under chapter 70.275 RCW is terminated on January 1, 2024, as provided in section 8 of this act.

NEW SECTION.  Sec. 8   A new section is added to chapter 43.131 RCW to read as follows:
     The following acts or parts of acts are each repealed, effective January 1, 2025:
     (1) RCW 70.275.010 (Findings -- Purpose) and 2010 c 130 s 1;
     (2) RCW 70.275.020 (Definitions) and 2013 c ... s 2 (section 2 of this act) and 2010 c 130 s 2;
     (3) RCW 70.275.030 (Product stewardship program) and 2013 c ... s 3 (section 3 of this act) & 2010 c 130 s 3;
     (4) RCW 70.275.040 (Submission of proposed product stewardship plans -- Department to establish rules -- Public review -- Plan update--Annual report) and 2013 c ... s 4 (section 4 of this act) & 2010 c 130 s 4;
     (5) RCW 70.275.050 (Financing the mercury-containing light recycling program) and 2013 c ... s 5 (section 5 of this act) & 2010 c 130 s 5;
     (6) RCW 70.275.060 (Collection and management of mercury) and 2010 c 130 s 6;
     (7) RCW 70.275.070 (Collectors of unwanted mercury-containing lights -- Duties) and 2010 c 130 s 7;
     (8) RCW 70.275.080 (Requirement to recycle end-of-life mercury-containing lights) and 2010 c 130 s 8;
     (9) RCW 70.275.090 (Producers must participate in an approved product stewardship program) and 2010 c 130 s 9;
     (10) RCW 70.275.100 (Written warning -- Penalty -- Appeal) and 2010 c 130 s 10;
     (11) RCW 70.275.110 (Department's web site to list producers participating in product stewardship plan -- Required participation in a product stewardship plan -- Written warning -- Penalty -- Rules -- Exemptions) and 2010 c 130 s 11;
     (12) RCW 70.275.120 (Producers must pay annual fees) and 2013 c ... s 6 (section 6 of this act) & 2010 c 130 s 12;
     (13) RCW 70.275.130 (Product stewardship programs account) and 2010 c 130 s 13;
     (14) RCW 70.275.140 (Adoption of rules -- Report to the legislature--Invitation to entities to comment on issues -- Estimate of statewide recycling rate for mercury-containing lights -- Mercury vapor barrier packaging) and 2010 c 130 s 14;
     (15) RCW 70.275.150 (Application of chapter to the Washington utilities and transportation commission) and 2010 c 130 s 15;
     (16) RCW 70.275.160 (Application of chapter to entities regulated under chapter 70.105 RCW) and 2010 c 130 s 16;
     (17) RCW 70.275.900 (Chapter liberally construed) and 2010 c 130 s 17; and
     (18) RCW 70.275.901 (Severability -- 2010 c 130) and 2010 c 130 s 21.