BILL REQ. #: H-3777.2
State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 01/11/2006. Referred to Committee on Natural Resources, Ecology & Parks.
AN ACT Relating to providing electronic product recycling through manufacturer financed opportunities; amending RCW 42.56.270; adding a new section to chapter 43.19 RCW; adding a new chapter to Title 70 RCW; creating a new section; prescribing penalties; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that a convenient,
safe, and environmentally sound system for the collection,
transportation, and recycling of covered electronic products must be
established. The legislature further finds that the system must
encourage the design of electronic products that are less toxic and
more recyclable. The legislature further finds that the responsibility
for this system must be shared among all stakeholders, with
manufacturers financing the collection, transportation, and recycling
system.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Authority" means the Washington materials management and
financing authority created under section 28 of this act.
(2) "Authorized party" means a manufacturer who submits an
individual independent plan or the entity authorized to submit an
independent plan for more than one manufacturer.
(3) "Board" means the board of directors of the Washington
materials management and financing authority created under section 29
of this act.
(4) "Collector" means an entity licensed to do business in the
state that gathers unwanted covered electronic products from
households, small businesses, school districts, small governments, and
charities for the purpose of recycling.
(5) "Contract for services" means an instrument executed by the
authority and one or more persons or entities that delineates
collection, transportation, and recycling services, in whole or in
part, that will be provided to the citizens of the state within service
areas as described in the approved standard plan.
(6) "Covered electronic product" includes a computer monitor, a
desktop computer, a laptop or a portable computer, or a television sold
or given to any household, charity, school district, small business, or
small government located in the state. Televisions and computer
monitors include both cathode ray tubes and flat screens having a
viewable area greater than four inches when measured diagonally.
"Covered electronic product" does not include: (a) A motor vehicle or
aircraft, or any computer, computer monitor, or television that is
contained within, and is not separate from, the motor vehicle or
aircraft; (b) monitoring and control instruments or systems; (c)
medical devices; (d) products including materials intended for use as
ingredients in those products as defined in the federal food, drug, and
cosmetic act (21 U.S.C. Sec. 301 et seq.) or the virus-serum-toxin act
of 1913 (21 U.S.C. Sec. 151 et seq.), and regulations issued under
those acts; (e) equipment used in the delivery of patient care in a
health care setting; or (f) a computer, computer monitor, or television
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.
(7) "Covered entity" means any household, charity, school district,
small business, or small government located in Washington state.
(8) "Department" means the department of ecology.
(9) "Electronic product" includes a cathode ray tube or flat panel
computer monitor; a desktop computer; a laptop or a portable computer;
or a cathode ray tube or flat screen television. Televisions and
computer monitors include both cathode ray tubes and flat screens
having a viewable area greater than four inches when measured
diagonally.
(10) "Equivalent share" means the weight in pounds of covered
electronic products for which an individual manufacturer is responsible
under this chapter as determined by the department under section 20 of
this act.
(11) "Household" means a single detached dwelling unit or a single
unit of a multiple dwelling unit and appurtenant structures.
(12) "Independent plan" means a plan for the collection,
transportation, and recycling of unwanted covered electronic products
that is developed, implemented, and financed by an individual
manufacturer or by an authorized party.
(13) "Manufacturer" means any person who, either as of the
effective date of this section or thereafter, and irrespective of the
selling technique used, including by means of distance or remote sale:
(a) Manufactures a covered electronic product under its own brand
names for sale in this state;
(b) Assembles a covered electronic product that uses parts
manufactured by others for sale in this state under the assembler's
brand names;
(c) Resells in this state under its own brand names a covered
electronic product produced by other suppliers, including retail
establishments that sell covered electronic products under their own
brand names;
(d) Imports or exports a covered electronic product into the United
States that is sold in this state. However, if a company from whom an
importer purchases the merchandise has a presence or assets in the
United States, that company is deemed to be the manufacturer; or
(e) Manufactures a cobranded product that carries the name of both
the manufacturer and a retailer.
(14) "New entrant" means a manufacturer of televisions that have
been sold in the state for less than ten years, and a manufacturer of
desktop computers, laptop and portable computers, or computer monitors
that have been sold in the state for less than five years.
(15) "Orphan product" means a covered electronic product that lacks
a manufacturer's brand or for which the manufacturer is no longer in
business and has no successor in interest.
(16) "Plan's equivalent share" means the weight in pounds of
covered electronic products for which a plan is responsible. A plan's
equivalent share is equal to the sum of the equivalent shares of each
manufacturer participating in that plan.
(17) "Plan's return share" means the sum of the return shares of
each manufacturer participating in that plan.
(18) "Program" means the collection, transportation, and recycling
activities conducted to implement an independent plan or the standard
plan.
(19) "Processor" means an entity engaged in disassembling,
dismantling, or shredding electronic products to recover materials
contained in the electronic products and prepare those materials for
refining or reuse in new products in accordance with processing
standards established by this chapter and by the department. A
processor may also salvage parts to be used in new products.
(20) "Product type" means one of the following categories:
Computer monitors; desktop computers; laptop and portable computers;
and televisions.
(21) "Program year" means each full calendar year after the program
has been initiated.
(22) "Recycling" means transforming or remanufacturing waste
materials into usable or marketable materials for use other than
landfill disposal or incineration. "Recycling" does not include energy
recovery or energy generation by means of combusting electronic waste
with or without other waste. Smelting of electronic wastes to recover
metals for reuse in conformance with all applicable laws and
regulations is not considered disposal or energy recovery.
(23) "Retailer" means a person who offers covered electronic
products 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.
(24) "Return share" means the percentage of covered electronic
products by weight identified for an individual manufacturer, as
determined by the department under section 19 of this act.
(25) "Reuse" means any operation by which an electronic product or
a component of a covered electronic product changes ownership and is
used for the same purpose for which it was originally purchased.
(26) "Small business" means a business employing less than fifty
people in the state.
(27) "Small government" means a city in the state with a population
less than fifty thousand, a county in the state with a population less
than one hundred twenty-five thousand, and special purpose districts in
the state.
(28) "Standard plan" means the plan for the collection,
transportation, and recycling of unwanted covered electronic products
developed, implemented, and financed by the authority on behalf of
manufacturers participating in the authority.
(29) "Transporter" means an entity that transports covered
electronic products from collection sites to processors or other
locations for the purpose of recycling, but does not include any entity
or person that hauls their own unwanted electronic products.
(30) "Unwanted electronic product" means a covered electronic
product that has been discarded or is intended to be discarded by its
owner.
(31) "White box manufacturer" means a person who manufactured
unbranded covered electronic products offered for sale in the state
within ten years prior to a program year for televisions or within five
years prior to a program year for desktop computers, laptop or portable
computers, or computer monitors.
NEW SECTION. Sec. 3 (1) A manufacturer whose covered electronic
products are offered for sale in or into the state must participate in
an independent plan or the standard plan to implement and finance the
collection, transportation, and recycling of its equivalent share of
covered electronic products.
(2) An independent plan or the standard plan must be implemented
and fully operational no later than January 1, 2009.
(3) The manufacturers participating in an approved plan are
responsible for covering all administrative and operational costs
associated with the collection, transportation, and recycling of their
plan's equivalent share of covered electronic products. If costs are
passed on to consumers, it must be done without any fees at the time
the unwanted electronic product is delivered or collected for
recycling.
(4) Manufacturers are encouraged to collaborate with electronic
product retailers, certificated waste haulers, processors, recyclers,
charities, and local governments in the development and implementation
of their plans.
NEW SECTION. Sec. 4 (1) By January 1, 2007, and annually
thereafter, each manufacturer whose covered electronic products are
offered for sale in or into the state must register with the
department.
(2) A manufacturer must submit to the department with each
registration or annual renewal a fee to cover the administrative costs
of this chapter as determined by the department under section 23 of
this act.
(3) The department shall review a registration and notify the
manufacturer if their registration does not meet the requirements of
this section. Within thirty days of receipt of such a notification
from the department, the manufacturer must file with the department a
revised registration addressing the requirements noted by the
department.
(4) The registration may only include the following information:
(a) The name and contact information of the manufacturer submitting
the registration;
(b) The manufacturer's brand names of covered electronic products,
including all brand names sold in the state by that manufacturer in the
past and all brand names currently being sold in the state;
(c) The method or methods of sale used in the state;
(d) Whether the registrant will be participating in the standard
plan or submitting an independent plan to the department for approval.
(5) The registrant shall submit any changes to the information
provided in the registration to the department within fourteen days of
such change.
(6) The department shall determine, using all reasonable means,
manufacturers that are in business or that are no longer in business
but that have a successor in interest by examining best available
return share data and other pertinent data. The department shall
notify manufacturers that have been identified and for whom an address
has been found of the requirements of this chapter, including
registration and plan requirements under this section and section 5 of
this act.
NEW SECTION. Sec. 5 (1) A manufacturer whose covered electronic
products are offered for sale in or into the state must participate in
the standard plan administered by the authority, unless the
manufacturer obtains department approval for an independent plan for
the collection, transportation, and recycling of unwanted electronic
products.
(2) An independent plan may be submitted by an individual
manufacturer or by a group of manufacturers, provided that:
(a) Each independent plan represents at least a five percent return
share of covered electronic products; and
(b) No manufacturer may participate in an independent plan if they
are a new entrant or a white box manufacturer.
(3) An individual manufacturer submitting an independent plan to
the department is responsible for collecting, transporting, and
recycling its equivalent share of covered electronic products.
(4)(a) Manufacturers collectively submitting an independent plan
are responsible for collecting, transporting, and recycling the sum of
the equivalent shares of each participating manufacturer.
(b) Each group of manufacturers submitting an independent plan must
designate a party authorized to file the plan with the department on
their behalf. A letter of certification from each of the manufacturers
designating the authorized party must be submitted to the department
together with the plan.
(5) Each manufacturer in the standard plan or in an independent
plan retains responsibility and liability under this chapter in the
event that the plan fails to meet the manufacturer's obligations under
this chapter.
NEW SECTION. Sec. 6 (1) All initial independent plans and the
initial standard plan required under section 5 of this act must be
submitted to the department by February 1, 2008. The department shall
review each independent plan and the standard plan.
(2) The authority submitting the standard plan and each authorized
party submitting an independent plan to the department must pay a fee
to the department to cover the costs of administering and implementing
this chapter. The department shall set the fees as described under
section 23 of this act.
(3) The fees in subsection (2) of this section apply to the initial
plan submission and plan updates and revisions required in section 7 of
this act.
(4) Within ninety days after receipt of a plan, the department
shall determine whether the plan complies with this chapter. If the
plan is approved, the department shall send a letter of approval. If
a plan is rejected, the department shall provide the reasons for
rejecting the plan to the authority or authorized party. The authority
or authorized party has sixty days after receipt of the letter of
disapproval to submit a new plan.
(5) An independent plan and the standard plan must contain the
following elements:
(a) Contact information for the authority or authorized party and
a comprehensive list of all manufacturers participating in the plan and
their contact information;
(b) A description of the collection, transportation, and recycling
systems and service providers used;
(c) The method or methods for the convenient collection of covered
electronic products in rural and urban areas throughout the state,
including how the plan will provide for collection services in each
county of the state and for a minimum of one collection site for each
city or town with a population greater than ten thousand;
(d) A description of how the plan will provide service to small
businesses, small governments, charities, and school districts in
Washington state;
(e) The processes and methods used to recycle covered electronic
products including a description of the processing that will be used
and the facility location;
(f) Documentation of audits of each processor used in the plan and
compliance with processing standards established under section 25 of
this act;
(g) A description of the accounting and reporting systems that will
be employed to track progress toward the plan's equivalent share;
(h) A timeline describing startup, implementation, and progress
towards milestones with anticipated results;
(i) The public information campaign to inform consumers about how
to recycle their covered electronic products at the end of the
product's life.
(6) All transporters and collectors used to fulfill the
requirements of this section must be registered as described in section
24 of this act.
NEW SECTION. Sec. 7 (1) An independent plan and the standard
plan must be updated at least every five years and as required in (a)
and (b) of this subsection.
(a) If the program fails to provide service in each county in the
state or meet other plan requirements, the authority or authorized
party shall submit to the department within sixty days of failing to
provide service an updated plan addressing how the program will be
adjusted to meet program geographic coverage and collection service
requirements.
(b) The authority or authorized party shall notify the department
of any modification to the plan. If the department determines that the
authority or authorized party has significantly modified the program
described in the plan, the authority or authorized party shall submit
a revised plan describing the changes to the department within sixty
days of notification by the department.
(2) Within sixty days after receipt of a revised plan, the
department shall determine whether the revised plan complies with this
chapter. If the revised plan is approved, the department shall send a
letter of approval. If the revised plan is rejected, the department
shall provide the reasons for rejecting the plan to the authority or
authorized party. The authority or authorized party has sixty days
after receipt of the letter of disapproval to submit a new plan
revision.
(3) The authority or authorized parties may buy and sell weight of
covered electronic products with other plans without submitting a plan
revision for review.
NEW SECTION. Sec. 8 (1) A manufacturer participating in an
independent plan may join the standard plan by notifying the authority
and the department of its intention at least five months prior to the
start of the next program year.
(2) Manufacturers may not change from one plan to another plan
during a program year.
(3) A manufacturer participating in the standard plan wishing to
implement or participate in an independent plan may do so by complying
with rules adopted by the department under section 23 of this act.
NEW SECTION. Sec. 9 (1) A program must provide for collection
services for covered electronic products that are convenient and
available to all citizens of the state residing within its geographic
boundaries, including both rural and urban populations. Each program
must provide collection service in every county of the state. In
counties with a small and widely dispersed population, a program may
provide collection service jointly with another plan or plans.
(a) Each program shall provide collection service at a minimum of
one collection site for any city or town with a population greater than
ten thousand.
(b) Collection sites may include electronics recyclers and repair
shops, recyclers of other commodities, reuse organizations, charities,
retailers, government recycling sites, or other suitable locations.
(c) Collection sites must be staffed, open to the public at a
frequency adequate to meet the needs of the area being served, and on
an on-going basis.
(2) A program may limit the number of covered electronic products
or covered electronic products by product type accepted per customer
per day or per delivery at a collection site. All covered entities may
use a collection site as long as the covered entities adhere to any
restrictions established in the plans.
(3) A program may provide collection services in forms different
than collection sites if those alternate services provide equal or
better convenience to citizens and equal or increased recovery of
unwanted covered electronic products.
(4) A program may provide service to rural areas without commercial
centers or areas with widely dispersed population by providing
collections at the nearest commercial centers or solid waste sites,
collection events, mail-back systems, or a combination of these
options.
(5) A program may provide alternate services for small businesses,
small governments, charities, and school districts for large quantities
of covered electronic products that cannot be handled at collection
sites. At a minimum, a program must provide for processing of these
large quantities of covered electronic products at no charge to the
small businesses, small governments, charities, and school districts.
NEW SECTION. Sec. 10 Any person acquiring a manufacturer has the
responsibility for the acquired company's covered electronic products,
including covered electronic products manufactured prior to the
effective date of this section, unless that responsibility remains with
the other entity per the purchase agreement. Cobranding manufacturers
may negotiate with retailers for responsibility for those products.
NEW SECTION. Sec. 11 (1) An independent plan and the standard
plan must implement and finance an auditable, statistically significant
sampling of covered electronic products entering its program every
program year. The information collected must include a list of the
brand names of covered electronic products by product type, the number
of covered electronic products by product type, the weight of covered
electronic products that are identified for each brand name or that
lack a manufacturer's brand, the total weight of the sample by product
type, and any additional information needed to assign return share.
(2) The sampling must be conducted in the presence of the
department or a third-party organization approved by the department.
The department may, at its discretion, audit the methodology and the
results.
(3) After the fifth program year, the department may reassess the
sampling required in this section. The department may adjust the
frequency at which manufacturers must implement the sampling or may
adjust the frequency at which manufacturers must provide certain
information from the sampling. Prior to making any changes, the
department shall notify the public, including all registered
manufacturers, and provide a comment period. The department shall
notify all registered manufacturers of any such changes.
NEW SECTION. Sec. 12 (1) An independent plan and the standard
plan must inform covered entities about where and how to reuse and
recycle their covered electronic products at the end of the product's
life, including providing a web site or a toll-free telephone number
that gives information about the recycling program in sufficient detail
to educate covered entities regarding how to return their covered
electronic products for recycling.
(2) The department shall promote covered electronic product
recycling by:
(a) Posting information describing where to recycle unwanted
covered electronic products on its web site;
(b) Providing information about recycling covered electronic
products through a toll-free telephone service; and
(c) Developing and providing artwork for use in flyers and signage
to retailers upon request.
(3) Local governments shall promote covered electronic product
recycling, including listings of local collection sites, through
already existing educational methods typically used by each local
government.
(4) A retailer who sells new covered electronic products shall
provide information to consumers describing where and how to recycle
covered electronic products and opportunities and locations for the
convenient collection or return of the products. This requirement can
be fulfilled by providing the department's toll-free telephone number
and web site. Remote sellers may include the information in a visible
location on their web site as fulfillment of this requirement.
(5) Manufacturers, state government, local governments, retailers,
and collection sites shall collaborate in the development and
implementation of the public information campaign.
NEW SECTION. Sec. 13 (1) The electronic products recycling
account is created in the custody of the state treasurer. All payments
resulting from plans not reaching their equivalent share, as described
in section 22 of this act, shall be deposited into the account. Any
moneys collected for manufacturer registration fees, fees associated
with reviewing and approving plans and plan revisions, and penalties
levied under this chapter shall be deposited into the account.
(2) Only the director of the department or the director's designee
may authorize expenditures from the account. The account is subject to
allotment procedures under chapter 43.88 RCW, but an appropriation is
not required for expenditures.
(3) Moneys in the account may be used solely by the department for
the purposes of fulfilling department responsibilities specified in
this chapter and for expenditures to the authority and authorized
parties resulting from plans exceeding their equivalent share, as
described in section 22 of this act. Funds in the account may not be
diverted for any purpose or activity other than those specified in this
section.
NEW SECTION. Sec. 14 (1) By March 1st of the second program year
and each program year thereafter, the authority and each authorized
party shall file with the department an annual report for the preceding
program year.
(2) The annual report must include the following information:
(a) The total weight in pounds of covered electronic products
collected and recycled, by county, during the preceding program year
including documentation verifying collection and processing of that
material. The total weight in pounds includes orphan products. The
report must also indicate and document the weight in pounds received
from each nonprofit charitable organization primarily engaged in the
business of reuse and resale used by the plan. The report must
document the weight in pounds that were received in large quantities
from small businesses, small governments, charities and school
districts as described in section 9(5) of this act;
(b) The collection services provided in each county and for each
city with a population over ten thousand including a list of all
collection sites operating in the state in the prior program year and
the parties who operated them;
(c) A list of processors used, the weight of covered electronic
products processed by each processor, and a description of the
processes and methods used to recycle the covered electronic products
including a description of the processing and facility locations. The
report must also include a complete list of all subcontractors who
further processed all materials listed in section 25(1)(b) of this act,
including facility locations and the total weight sent to each
facility;
(d) For each processor used by the plan, documentation of
compliance with processing standards, including audits, as established
under section 25 of this act;
(e) Educational and promotional efforts that were undertaken;
(f) The results of sampling and sorting as required in section 11
of this act, including a list of the brand names of covered electronic
products by product type, the number of covered electronic products by
product type, the weight of covered electronic products that are
identified for each brand name or that lack a manufacturer's brand, and
the total weight of the sample by product type;
(g) Any other information deemed necessary by the department.
(3) The authority shall also include in its annual report to the
department the list of manufacturers that are participating in the
standard plan and that have fully paid their equivalent share to the
authority in the preceding year as required under section 22 of this
act.
(4) The department shall review each report within ninety days of
its submission and shall notify the authority or authorized party of
any need for additional information or documentation, or any deficiency
in its program.
(5) All reports submitted to the department must be available to
the general public through the internet. Proprietary information
submitted to the department under this chapter is exempt from public
disclosure under RCW 42.56.270.
NEW SECTION. Sec. 15 Nonprofit charitable 501(c)3 organizations
that are primarily engaged in the business of reuse and resale and that
are used by a plan to collect covered electronic products shall file a
report with the department by March 1st of the second program year and
each program year thereafter. The report must indicate and document
the weight of covered electronic products sent for recycling during the
previous program year attributed to each plan that the charitable
organization is participating in.
NEW SECTION. Sec. 16 (1) Beginning July 1, 2006, no person may
sell or offer for sale an electronic product to any person in the state
unless the electronic product is labeled with the manufacturer's brand.
The label must be permanently affixed and readily visible.
(2) In-state retailers in possession of unlabeled products on July
1, 2006, may exhaust their stock through sales to the public.
NEW SECTION. Sec. 17 No person may sell or offer for sale a
covered electronic product to any person in this state unless the
manufacturer of the covered electronic product has filed a registration
with the department under section 4 of this act and is participating in
an approved plan under section 5 of this act. A person that sells or
offers for sale a covered electronic product in the state shall consult
the department's web site for lists of manufacturers with registrations
and approved plans prior to selling a covered electronic product in the
state. A person is considered to have complied with this section if on
the date the product was ordered from the manufacturer or its agent,
the manufacturer was listed as having registered and having an approved
plan on the department's web site.
NEW SECTION. Sec. 18 (1) The department shall maintain on its
web site the following information:
(a) The names of the manufacturers and the manufacturer's brands
that are registered with the department under section 3 of this act;
(b) The names of the manufacturers and the manufacturer's brands
that are participating in an approved plan under section 5 of this act;
(c) The names and addresses of the collectors and transporters that
are listed in registrations filed with the department under section 24
of this act;
(d) The names and addresses of the processors used to fulfill the
requirements of the plans;
(e) Return and equivalent shares for all manufacturers.
(2) The department shall update this web site information promptly
upon receipt of a registration or a report.
NEW SECTION. Sec. 19 (1) The department shall determine the
return share percentage for each manufacturer of covered electronic
products by dividing the weight of covered electronic products
identified for each manufacturer by the total weight of covered
electronic products identified for all manufacturers participating in
the standard or an independent plan, then multiplying the quotient by
one hundred.
(2) For the first program year, the percentage of covered
electronic products identified for an individual manufacturer must be
based on best available information regarding return share data from
other states.
(3) For the second and each subsequent program year, the percentage
of covered electronic products identified for an individual
manufacturer must be based on the most recent sampling of covered
electronic products conducted in the state under section 11 of this
act. The department may also examine data from other states to inform
its decision.
NEW SECTION. Sec. 20 (1) The department shall determine the
total equivalent share for each manufacturer of covered electronic
products by dividing the return share percentage for each manufacturer
by one hundred, then multiplying the quotient by the total weight in
pounds of covered electronic products collected for that program year.
(2)(a) By June 1st of each program year, the department shall
notify each manufacturer of the manufacturer's equivalent share of
covered electronic products to be applied to the previous program year.
The department shall also notify each manufacturer of how its
equivalent share was determined.
(b) By June 1st of each program year, the department shall bill any
authorized party or authority that has not attained its equivalent
share as determined under section 22 of this act. The authorized party
or authority shall remit payment to the department within sixty days
from the billing date.
(c) By September 1st of each program year, the department shall pay
any authorized party or authority that exceeded its equivalent share.
(3) Plans that utilize the collection services of nonprofit
charitable 501(c)3 organizations that are primarily engaged in the
business of reuse and resale must be given an additional five percent
credit to be applied towards a plan's equivalent share for pounds that
are received for recycling from those organizations. The department
may adjust the percentage of credit annually.
NEW SECTION. Sec. 21 (1) By September 1, 2006, the department
shall notify each manufacturer of its preliminary return share of
covered electronic products for the first program year.
(2) Preliminary return share of covered electronic products must be
announced annually by June 1st of each program year for the next
program year.
(3) Manufacturers may challenge the preliminary return share by
written petition to the department. The petition must be received by
the department within thirty days of the date of publication of the
preliminary return shares.
(4) The petition must contain a detailed explanation of the grounds
for the challenge, an alternative calculation, and the basis for such
a calculation, documentary evidence supporting the challenge, and
complete contact information for requests for additional information or
clarification.
(5) Sixty days after the publication of the preliminary return
share, the department shall make a final decision on return share,
having fully taken into consideration any and all challenges to its
preliminary calculations.
(6) A written record of challenges received and a summary of the
bases for the challenges, as well as the department's response, must be
published at the same time as the publication of the final return
share.
(7) By November 1, 2006, preceding the first program year and by
August 1st of the second and each subsequent program year, the
department shall publish the final return shares for use in the coming
program year.
NEW SECTION. Sec. 22 (1) For an independent plan and the
standard plan, if the total weight in pounds of covered electronic
products collected during a program year is less than the plan's
equivalent share of covered electronic products for that year, then the
authority or authorized party shall submit to the department a payment
equal to the weight in pounds of the deficit multiplied by the
reasonable collection, transportation, and recycling cost for covered
electronic products and the administrative fee. Moneys collected by
the department must be deposited in the electronic products recycling
account.
(2) For an independent plan and the standard plan, if the total
weight in pounds of covered electronic products collected during a
program year is more than the plan's equivalent share of covered
electronic products for that year, then the department shall submit to
the authority or authorized party, a payment equal to the weight in
pounds of the surplus multiplied by the reasonable collection,
transportation, and recycling cost for covered electronic products.
(3) For purposes of this section, the initial reasonable
collection, transportation, and recycling cost for covered electronic
products is forty-five cents per pound and the administrative fee is
five cents per pound.
(4) The department may annually adjust the reasonable collection,
transportation, and recycling cost for covered electronic products and
the administrative fee described in this section. Prior to making any
changes in the fees described in this section, the department shall
notify the public, including all registered manufacturers, and provide
a comment period. The department shall notify all registered
manufacturers of any changes to the reasonable collection,
transportation, and recycling cost or the administrative fee by January
1st of the program year in which the change is to take place.
NEW SECTION. Sec. 23 (1) The department shall adopt rules to
determine the process for manufacturers to change plans under section
8 of this act.
(2) The department shall establish annual registration and plan
review fees for administering this chapter. An initial fee schedule
must be established by rule and be adjusted no more often than once
every two years. All fees charged must be based on factors relating to
administering this chapter and be based on a sliding scale that is
representative of annual sales of covered electronic products in the
state. Fees must be established in amounts to fully recover and not to
exceed expenses incurred by the department to implement this chapter.
(3) The department shall establish an annual process for local
governments and local communities to report their satisfaction with the
services provided by plans under this chapter. This information must
be used by the department in reviewing plan updates and revisions.
(4) The department may adopt rules as necessary for the purpose of
implementing, administering, and enforcing this chapter.
NEW SECTION. Sec. 24 Each collector and transporter of covered
electronic products in the state must register annually with the
department. The registration must include all identification
requirements for licensure in the state and the geographic area of the
state that they serve. The department shall develop a single form for
registration of both collectors and transporters.
NEW SECTION. Sec. 25 (1)(a) The authority and each authorized
party shall ensure that each processor used to fulfill the requirements
of their respective standard plan or independent plan is in and remains
in compliance with the requirements of this section. If the department
determines that a processor used in the standard plan or an independent
plan does not meet the requirements of this section, the department
shall require that the authority or authorized party change the plan or
demonstrate that the processor has come into compliance with the
requirements.
(b) Processors shall perform due diligence and have documentation
of the chain of custody for any of the following equipment or materials
destined for repair or reuse not meeting the requirements in (d) of
this subsection, recycling, or disposal: Whole electronic products,
cathode ray tubes and circuit boards, whole, shredded, or in part or
any devices containing them, glass cullet, lead, cadmium, selenium and
selenium compounds, beryllium and beryllium compounds, mercury, and
mercury-containing devices such as switches and lamps.
(c) All shipments of the equipment, components, or materials listed
in (b) of this subsection destined for recycling, disposal, or repair
or reuse not meeting the requirements in (d) of this subsection must
comply with all federal laws, all applicable laws of recipient
countries, and all applicable international laws and agreements.
Whenever export occurs, processors must have copies of all relevant
import permits provided to facilities in recipient countries by their
governments including the consents required under relevant
international laws and agreements for receiving such wastes from the
United States.
(d) Any electronic product or component of an electronic product
exported into a reuse market must be tested and certified and labeled
as fully functional or specifying the need for only minor repairs that
will not result in the removal or replacement of hazardous components
or materials listed in (b) of this subsection.
(2) The department shall establish by rule performance standards
for environmentally sound management for processors used to fulfill the
requirements of an independent plan or the standard plan. Performance
standards must include financial assurances to ensure proper closure of
facilities consistent with environmental standards.
(3) The department shall establish by rule the allowable percent of
nonrecycled residual that may be properly disposed after covered
electronic products have been processed.
(4) The department may audit processors that are utilized to
fulfill the requirements of an independent plan or the standard plan.
(5) No plan or program required under this chapter may include the
use of federal or state prison labor for processing.
NEW SECTION. Sec. 26 (1) The department shall send a written
warning to a manufacturer that does not have an approved plan or is not
participating in an approved plan as required under section 5 of this
act. The written warning must inform the manufacturer that it must
participate in an approved plan within ninety days of the notice. Any
infraction after the initial written warning shall be assessed a
penalty of up to ten thousand dollars upon the first citation of
infraction along with notification that the manufacturer must
participate in an approved plan within ninety days of the citation.
After ninety days, a manufacturer not in compliance with this section
is prohibited from offering an electronic product for sale in this
state.
(2) If the authority or any authorized party fails to implement
their approved plan, the department must assess a penalty of up to five
thousand dollars upon first citation of infraction along with
notification that the authority or authorized party must implement its
plan within ninety days of the citation. After ninety days, the
authority or any authorized party failing to implement their approved
plan must be assessed a penalty of up to ten thousand dollars upon the
second and each subsequent citation of infraction.
(3) Any person that does not comply with manufacturer registration
requirements under section 4 of this act, education and outreach
requirements under section 12 of this act, reporting requirements under
section 14 of this act, labeling requirements under section 16 of this
act, retailer responsibility requirements under section 17 of this act,
collector or transporter registration requirements under section 24 of
this act, or processing standards under section 25 of this act, must
first receive a written warning including a copy of the requirements
under this chapter and ninety days to correct the violation. After
ninety days, a person must be assessed a penalty of up to one thousand
dollars upon first citation of infraction and up to two thousand
dollars upon the second and each subsequent citation of infraction.
(4) All penalties levied under this section must be deposited into
the electronic products recycling account created under section 13 of
this act.
(5) The department shall enforce this section.
NEW SECTION. Sec. 27 By December 31, 2012, the department shall
provide a report to the legislature that includes the following
information:
(1) For each of the preceding program years, the weight of covered
electronic products recycled in the state by plan, by county, and in
total;
(2) The performance of each plan in meeting its equivalent share,
and payments received from and disbursed to each plan from the
electronic products recycling account;
(3) A description of the various collection programs used to
collect covered electronic products in the state;
(4) An evaluation of how the pounds per capita recycled of covered
electronic products in the state compares to programs in other states;
(5) Comments received from local governments and local communities
regarding satisfaction with the program, including accessibility and
convenience of services provided by the plans; and
(6) Recommendations on how to improve the statewide collection,
transportation, and recycling system for convenient, safe, and
environmentally sound recycling of electronic products.
NEW SECTION. Sec. 28 (1) The Washington materials management and
financing authority is established as a public body corporate and
politic, constituting an instrumentality of the state of Washington
exercising essential governmental functions.
(2) The authority shall plan and implement a collection,
transportation, and recycling program for manufacturers that have
registered with the department their intent to participate in the
standard program as required under section 5 of this act.
(3) Membership in the authority is comprised of registered
participating manufacturers. Any manufacturer who does not qualify or
is not approved to submit an independent plan, or whose independent
plan has not been approved by the department, is a member of the
authority.
(4) The authority shall act as a business management organization
on behalf of the citizens of the state to manage financial resources
and contract for services for collection, transportation, and recycling
of covered electronic products.
(5) The authority's standard plan is responsible for collecting,
transporting, and recycling the sum of the equivalent shares of each
participating manufacturer. All new entrants and white box
manufacturers must participate in the standard plan.
(6) The authority shall accept into the standard program covered
electronic products from any registered collector who meets the
requirements of this chapter and the terms of the standard plan. The
authority shall compensate registered collectors for the reasonable
costs associated with collection.
(7) Except as specifically allowed in this chapter, the authority
shall operate without using state funds or lending the credit of the
state or local governments.
(8) The authority shall develop innovative approaches to improve
materials management efficiency in order to ensure and increase the use
of secondary material resources within the economy.
NEW SECTION. Sec. 29 (1)(a) The authority is governed by a board
of directors. The initial board of directors is comprised of eleven
participating manufacturers, elected by the membership of the
authority. Five board positions are reserved for representatives of
the top ten brand owners by return share of covered electronic
products, and six board positions are reserved for representatives of
other brands, including at least one board position reserved for a
manufacturer who is also a retailer selling their own private label.
(b) The board must have representation from both television and
computer manufacturers.
(2) The board shall select from its membership the chair of the
board and such other officers as it deems appropriate.
(3) A majority of the board constitutes a quorum.
(4) The directors of the department of community, trade, and
economic development and the department of ecology, and the state
treasurer serve as ex officio members. The state agency directors and
the state treasurer serving in ex officio capacity may each designate
an employee of their respective departments to act on their behalf in
all respects with regard to any matter to come before the authority.
Ex officio designations must be made in writing and communicated to the
authority director.
(5) The board shall create its own bylaws in accordance with the
laws of the state of Washington.
(6) Any member of the board may be removed for misfeasance,
malfeasance, or willful neglect of duty after notice and a public
hearing, unless the notice and hearing are expressly waived in writing
by the affected member.
(7) The members of the board serve without compensation but are
entitled to reimbursement, solely from the funds of the authority, for
expenses incurred in the discharge of their duties under this chapter.
NEW SECTION. Sec. 30 (1) Participating manufacturers shall pay
the authority to cover all administrative and operational costs
associated with the collection, transportation, and recycling of
covered electronic products within the state of Washington incurred by
the standard program operated by the authority.
(2)(a) The initial fee collected from the participating
manufacturers by the authority must be determined by the board and may
be not less than four dollars and not more than ten dollars per unit of
covered electronic product sold in or into the state by manufacturers
for the first year of operation.
(b) Thereafter, the authority shall set annual fees, assess charges
to participating manufacturers, and collect fees directly to fund the
activities of the standard program. The authority shall adjust the
fees as necessary in order to ensure that all costs associated with the
identified activities are covered.
NEW SECTION. Sec. 31 (1) Except as provided in subsection (2) of
this section, the authority shall use any funds legally available to it
for any purpose specifically authorized by this chapter to:
(a) Contract and pay for collecting, transporting, and recycling of
covered electronic products and education and other services as
identified in the standard plan;
(b) Pay for the expenses of the authority including, but not
limited to, salaries, benefits, operating costs and consumable
supplies, equipment, office space, and other expenses related to the
costs associated with operating the authority;
(c) Pay into the electronic products recycling account amounts
billed by the department to the authority for any deficit in reaching
the standard plan's equivalent share as required under section 22 of
this act; and
(d) Pay the department for the fees for submitting the standard
plan and any plan revisions.
(2) No funds available to the authority may be used to duplicate
the infrastructure already available through private industry in the
state.
(3) The authority may not receive an appropriation of state funds,
other than:
(a) Funds that may be provided as a one-time loan to cover
administrative costs associated with start up of the authority, such as
electing the board of directors and conducting the public hearing for
the operating plan, provided that no appropriated funds may be used to
pay for collection, transportation, or recycling services; and
(b) Funds received from the department from the electronic products
recycling account for exceeding the standard plan's equivalent share.
(4) The authority may receive grants, contributions, and other
sources of funding that do not obligate the state to secure debt except
as described in subsection (1) of this section.
(5) All funds collected by the authority under this chapter,
including interest, dividends, and other profits, are and must remain
under the complete control of the authority and its board of directors
and be fully available to achieve the intent of this chapter.
NEW SECTION. Sec. 32 (1) The board shall adopt a general
operating plan of procedures for the authority. The board shall also
adopt operating procedures for collecting fees from participating
covered electronic manufacturers and for providing funding for
contracted services. These operating procedures must be adopted by
resolution prior to the authority operating the applicable programs.
(2) The general operating plan must include, but is not limited to:
(a) Appropriate minimum reserve requirements to secure the authority's
financial stability; and (b) appropriate standards for contracting for
services.
(3) The board shall conduct at least one public hearing on the
general operating plan prior to its adoption. The authority shall
provide and make public a written response to all comments received by
the public.
(4) The general operating plan must be adopted by resolution of the
board no later than April 1, 2007. The board may periodically update
the general operating plan as necessary, but must update the plan no
less than once every four years. The general operating plan or updated
plan must include a report on authority activities conducted since the
commencement of authority operation or since the last reported general
operating plan, whichever is more recent, including a statement of
results achieved under the purposes of this chapter and the general
operating plan. Upon adoption, the authority shall conduct its
programs in observance of the objectives established in the general
operating plan.
NEW SECTION. Sec. 33 (1) The authority shall employ a chief
executive officer, appointed by the board, and a chief financial
officer, as well as professional, technical, and support staff,
appointed by the chief executive officer, necessary to carry out its
duties.
(2) Employees of the authority are not classified employees of the
state. Employees of the authority are exempt from state service rules
and may receive compensation only from the authority at rates
competitive with state service.
(3) The authority must retain its own legal counsel.
(4) If requested by the authority, the departments of ecology and
community, trade, and economic development shall provide start-up
support staff to the authority for its first twelve months of
operation, or part thereof, to assist in the quick establishment of the
authority. Staff expenses must be paid through fees and funds
collected by the authority and must be reimbursed to the departments
from the authority's financial resources within the first twenty-four
months of operation.
(5) In addition to accomplishing the activities specifically
authorized in this chapter, the authority may:
(a) Maintain an office or offices;
(b) Make and execute all manner of contracts, agreements, and
instruments and financing documents with public and private parties as
the authority deems necessary, useful, or convenient to accomplish its
purposes;
(c) Make expenditures as appropriate for paying the administrative
costs and expenses of the authority in carrying out the provisions of
this chapter;
(d) Give assistance to private and public bodies contracted to
provide collection, transportation, and recycling services by providing
information, guidelines, forms, and procedures for implementing their
programs;
(e) Delegate, through contract, any of its powers and duties if
consistent with the purposes of this chapter; and
(f) Exercise any other power the authority deems necessary, useful,
or convenient to accomplish its purposes and exercise the powers
expressly granted in this chapter.
NEW SECTION. Sec. 34 This chapter is void upon the establishment
of a national system for covered electronic products established
through an act of congress that substantially meets the scope and
intent of this chapter, including the creation of a financing mechanism
for collection, transportation, and recycling of all covered electronic
products from households, small businesses, school districts, small
governments, and charities.
NEW SECTION. Sec. 35 A new section is added to chapter 43.19 RCW
to read as follows:
(1) The department of general administration shall establish
purchasing and procurement policies that establish a preference for
electronic products that meet environmental performance standards
relating to the reduction or elimination of hazardous materials.
(2) The department of general administration shall ensure that
their surplus electronic products, other than those sold individually
to private citizens, are managed only by registered transporters and by
processors meeting the requirements of section 25 of this act.
(3) The department of general administration shall ensure that
their surplus electronic products are directed to legal secondary
materials markets by requiring a chain of custody record that documents
to whom the products were initially delivered through to the end use
manufacturer.
Sec. 36 RCW 42.56.270 and 2005 c 274 s 407 are each amended to
read as follows:
The following financial, commercial, and proprietary information is
exempt from disclosure under this chapter:
(1) Valuable formulae, designs, drawings, computer source code or
object code, and research data obtained by any agency within five years
of the request for disclosure when disclosure would produce private
gain and public loss;
(2) Financial information supplied by or on behalf of a person,
firm, or corporation for the purpose of qualifying to submit a bid or
proposal for (a) a ferry system construction or repair contract as
required by RCW 47.60.680 through 47.60.750 or (b) highway construction
or improvement as required by RCW 47.28.070;
(3) Financial and commercial information and records supplied by
private persons pertaining to export services provided under chapters
43.163 and 53.31 RCW, and by persons pertaining to export projects
under RCW 43.23.035;
(4) Financial and commercial information and records supplied by
businesses or individuals during application for loans or program
services provided by chapters 43.163, 43.160, 43.330, and 43.168 RCW,
or during application for economic development loans or program
services provided by any local agency;
(5) Financial information, business plans, examination reports, and
any information produced or obtained in evaluating or examining a
business and industrial development corporation organized or seeking
certification under chapter 31.24 RCW;
(6) Financial and commercial information supplied to the state
investment board by any person when the information relates to the
investment of public trust or retirement funds and when disclosure
would result in loss to such funds or in private loss to the providers
of this information;
(7) Financial and valuable trade information under RCW 51.36.120;
(8) Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the clean Washington
center in applications for, or delivery of, program services under
chapter 70.95H RCW;
(9) Financial and commercial information requested by the public
stadium authority from any person or organization that leases or uses
the stadium and exhibition center as defined in RCW 36.102.010;
(10) Financial information, including but not limited to account
numbers and values, and other identification numbers supplied by or on
behalf of a person, firm, corporation, limited liability company,
partnership, or other entity related to an application for a liquor
license, gambling license, or lottery retail license;
(11) Proprietary data, trade secrets, or other information that
relates to: (a) A vendor's unique methods of conducting business; (b)
data unique to the product or services of the vendor; or (c)
determining prices or rates to be charged for services, submitted by
any vendor to the department of social and health services for purposes
of the development, acquisition, or implementation of state purchased
health care as defined in RCW 41.05.011; ((and))
(12)(a) When supplied to and in the records of the department of
community, trade, and economic development:
(i) Financial and proprietary information collected from any person
and provided to the department of community, trade, and economic
development pursuant to RCW 43.330.050(8) and 43.330.080(4); and
(ii) Financial or proprietary information collected from any person
and provided to the department of community, trade, and economic
development or the office of the governor in connection with the
siting, recruitment, expansion, retention, or relocation of that
person's business and until a siting decision is made, identifying
information of any person supplying information under this subsection
and the locations being considered for siting, relocation, or expansion
of a business;
(b) When developed by the department of community, trade, and
economic development based on information as described in (a)(i) of
this subsection, any work product is not exempt from disclosure;
(c) For the purposes of this subsection, "siting decision" means
the decision to acquire or not to acquire a site;
(d) If there is no written contact for a period of sixty days to
the department of community, trade, and economic development from a
person connected with siting, recruitment, expansion, retention, or
relocation of that person's business, information described in (a)(ii)
of this subsection will be available to the public under this chapter;
and
(13) Financial and proprietary information submitted to or obtained
by the department of ecology to implement chapter 70.-- RCW (sections
1 through 34 of this act).
NEW SECTION. Sec. 37 This act must be liberally construed to
carry out its purposes and objectives.
NEW SECTION. Sec. 38 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 39 This act takes effect July 1, 2006.
NEW SECTION. Sec. 40 Sections 1 through 34 of this act
constitute a new chapter in Title