BILL REQ. #:  S-1664.2 

READ FIRST TIME 02/21/11.   

     AN ACT Relating to carpet stewardship; reenacting and amending RCW 43.21B.110 and 43.21B.110; adding a new section to chapter 42.56 RCW; adding a new chapter to Title 70 RCW; prescribing penalties; providing an effective date; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) In 2009, discarded carpet equaled 2.9 percent of Washington's disposed waste by weight. The estimated recycling rate for carpet and padding in Washington was less than two percent in 2009.      
     (2) The national, voluntary, and industry-led approach to carpet stewardship, the 2002 memorandum of understanding for carpet stewardship, has not met its agreed-upon goal of forty percent carpet recovery and has only achieved a four to five percent recovery rate nationwide.
     (3) Numerous products can be manufactured from recycled carpet, including carpet backing and backing components, carpet fiber, carpet underlayment, plastics and engineered materials, and erosion control products.

NEW SECTION.  Sec. 2   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 the carpet, rather than its components, and attributes the carpet to the owner or licensee of the brand as the manufacturer.
     (2) "Carpet" means a manufactured article that is used in commercial or residential buildings affixed or placed on the floor or building walking surface as a decorative or functional building interior or exterior feature and that is primarily constructed of a top visible surface of synthetic face fibers or yarns or tufts attached to a backing system derived from synthetic or natural materials. "Carpet" includes, but is not limited to, a commercial or a residential broadloom carpet or modular carpet tiles. "Carpet" includes a pad or underlayment used in conjunction with a carpet. "Carpet" does not include handmade rugs, area rugs, or mats.
     (3) "Carpet stewardship organization" or "organization" means either of the following:
     (a) An organization appointed by one or more producers to act as an agent on behalf of the producer to design, submit, and administer a product stewardship program under this chapter; or
     (b) A carpet producer that complies with this chapter as an individual producer.
     (4) "Consumer" means a purchaser, owner, or lessee of carpet, including a person, business, corporation, limited partnership, nonprofit organization, or governmental entity.
     (5) "Department" means the department of ecology.
     (6) "Discarded carpet" means carpet that is no longer used for its manufactured purpose. However, the term does not include carpet scrap generated during carpet production.
     (7) "Market share" means the percentage of carpet by weight identified for an individual producer that is put on the market in the state during the reporting period as compared to all carpet identified for all producers by weight put on the market in the state during the same reporting period.
     (8) "Producer" means the person who:
     (a) Has legal ownership of the brand, brand name, or cobrand of the carpet sold in Washington state. "Producer" does not include a retailer who puts its store label on a carpet;
     (b) Imports carpet branded or manufactured by a producer that meets the definition under (a) of this subsection and has no physical presence in the United States; or
     (c) Sells, at retail or wholesale, carpet, does not have legal ownership of the brand, and elects to fulfill the responsibilities of the producer for that carpet.
     (9) "Product stewardship program" or "program" means the methods, systems, and services financed and provided by producers of carpet sold in the state including collecting, transporting, processing, and recycling of discarded carpet necessary to implement the program.
     (10) "Product stewardship program plan" or "plan" means a detailed plan describing the manner in which a product stewardship program will be implemented.
     (11) "Recycling" means transforming or remanufacturing waste materials into a finished product for use other than landfill disposal or incineration.     
     (12) "Reporting period" means the period commencing January 1st and ending December 31st in the same calendar year.
     (13) "Retailer" means every person who purchases, sells, offers for sale, or distributes new carpet for sale in this state.
     (14) "Reuse" means donating or selling collected carpet back into the market for its original intended use in which the carpet retains its original purpose and performance characteristics.
     (15) "Sell" or "sales" means a transfer of title of a carpet for consideration, including a remote sale conducted through a sales outlet, catalog, internet web site, or similar electronic means. For purposes of this chapter, "sell" or "sales" includes a lease through which a carpet is provided to a consumer by a producer, wholesaler, or retailer.
     (16) "Source separated" means carpet that has been separated or segregated from all other wastes, including but not limited to all municipal solid waste, at the place where the carpet is discarded.
     (17) "Wholesaler" means every person who purchases, sells, or distributes new carpet in this state in a sale that is not a retail sale, and in which the carpet is intended to be resold.

NEW SECTION.  Sec. 3   (1) By January 1, 2012, a producer of carpet sold in this state or brought into the state by other means shall participate in a carpet stewardship organization. A producer shall notify the department of its participation in a carpet stewardship organization.
     (2)(a) By January 1, 2012, every carpet stewardship organization must submit to the department sales data from the years 2002 through 2011. The data must include: (i) The amount of carpet sold in or into the state by square yards and weight in pounds, separating data for residential and commercial carpet, providing a total for each and an overall total; and (ii) the market share, by percentage, of each producer participating in the carpet stewardship organization.
     (b) Beginning January 31, 2013, and annually thereafter, carpet stewardship organizations must submit to the department the previous year's sales data that includes the amount of carpet sold in or into the state by square yards and weight in pounds, for residential and commercial carpet, providing a total for each and an overall total, and the market share, by percentage, of each producer participating in the carpet stewardship organization.
     (c) Beginning January 31, 2013, carpet stewardship organizations must collect annual fees, as established in section 8 of this act, from producers selling carpet in or into the state. The total amount of annual fees collected must not exceed the amount necessary to recover costs incurred by the department and carpet stewardship organization to implement the requirements of the carpet stewardship program. Carpet stewardship organizations must calculate the annual fee based on each producer's portion of the market share for the previous year.
     (i) The fees must be sufficient for capital costs of the program and for the product stewardship program to fund: Education and outreach efforts; administrative and operational activities; and other efforts that will advance the purposes of this chapter.
     (ii) Each carpet stewardship organization must submit an initial fee of one thousand dollars for each producer represented to cover the one-time cost of the department's estimated first annual fee as established in section 8 of this act.
     (3)(a) A carpet stewardship organization shall submit to the department a product stewardship program plan that is consistent with the requirements of this section by January 1, 2014. A carpet stewardship organization with a department-approved product stewardship program plan must implement their program by July 1, 2014.
     (b) A carpet stewardship organization must consult with stakeholders, including retailers, installers, collectors, recyclers, and local governments during the development of the product stewardship program plan.
     (4) A product stewardship program must:
     (a) Have in place methods and systems for financing the program and collecting, transporting, processing for recycling, and recycling discarded carpet;
     (b) Be provided throughout the state as established in subsection (6) of this section at no cost to all entities that remove carpet, including but not limited to carpet and flooring installers, and construction and demolition companies. The program may not charge a fee at the time discarded carpet is collected. Collection services must include convenient locations for entities that remove carpet and, at minimum, one public collection location per one hundred thousand residents, and a minimum of one public collection site per county;
     (c) Include:
     (i) Interim milestones to:
     (A) Increase the recycling of discarded carpet throughout the state;
     (B) Increase the recyclability of carpets; and
     (C) Incentivize the market growth of secondary products made from discarded carpet; and
     (ii) Five-year performance goals for:
     (A) Collecting and recycling discarded carpet;
     (B) Managing discarded carpet consistent with the state's solid waste management plan; and
     (C) Collecting source separated carpet that meets acceptable standards as required under subsection (7)(a) of this section;
     (d) Describe how discarded carpet will be collected and recycled throughout the state;
     (e) Identify each producer participating in the product stewardship program and provide contact information for each producer and the brands covered by each producer;
     (f) Include a proposal for achieving and maintaining performance standards, beyond the five-year period described in (c) of this subsection;
     (g) Provide opportunities for public comment on the product stewardship program, a summary of comments received, and responses to those comments both prior to its submittal as a plan to the department and annually thereafter; and
     (h) Include education and outreach efforts to consumers, commercial building owners, carpet installation contractors, and retailers throughout the state to promote their participation in achieving the product stewardship program's performance goals. At a minimum, the education and outreach efforts must include:
     (i) Written materials and templates of materials for reproduction to be provided to retailers, local governments, carpet installation contractors, and consumers at the time of purchase and delivery; and
     (ii) Information addressing the condition of acceptable carpet as required in subsection (7)(a) of this section. The product stewardship program must provide the templates and materials free of charge.
     (5) The carpet stewardship organization may offer incentives or payments to collectors if necessary to ensure the carpet stewardship program requirements are met, as described in subsection (4) of this section.
     (6) Carpet stewardship organizations shall implement programs beginning:
     (a) July 1, 2014, for the counties of Clark, King, Kitsap, Pierce, Snohomish, and Spokane;
     (b) July 1, 2015, for the counties of Benton, Franklin, Walla Walla, and Yakima;
     (c) July 1, 2016, for the counties of Chelan, Clallam, Cowlitz, Grant, Grays Harbor, Island, Lewis, Mason, Skagit, Thurston, and Whatcom; and
     (d) July 1, 2017, for the counties of Adams, Asotin, Douglas, Ferry, Garfield, Jefferson, Kittitas, Klickitat, Whitman, Pacific, Pend Oreille, Okanogan, Columbia, San Juan, Skamania, Stevens, and Wahkiakum in the cities where a carpet retailer is located, with a minimum of one public collection site per county.
     (7) The program must:
     (a) Accept all carpet that is source separated, dry, free of paint, mold, mildew, asbestos, construction or demolition debris, and other hazardous materials or chemicals that render the carpet unrecyclable; and
     (b) Ensure that carpet collected meeting the standards in (a) of this subsection is processed for recycling or reuse and a minimum of sixty percent of the processed carpet material by weight is recycled or reused.
     (8) The carpet stewardship organization administering a product stewardship program shall notify the department within thirty days after instituting a change that affects any part of requirements in subsection (4) of this section to an approved product stewardship program.

NEW SECTION.  Sec. 4   (1) The department may adopt rules necessary to implement, administer, and enforce this chapter.
     (2) The department or its designee may inspect or review audits of carpet stewardship organizations or of carpet processing and recycling facilities used to fulfill the requirements of a product stewardship program.

NEW SECTION.  Sec. 5   (1) Within sixty days after receiving a product stewardship program plan for approval, the department shall review the program, determine whether the program complies with the requirements of this chapter, and notify the carpet stewardship organization of its decision to approve or not approve the program.
     (2) A product stewardship program may not be approved if the department determines that the program will have the effect of reducing the level of recycling of discarded carpet that has been achieved since the effective date of this section or if the product stewardship program does not meet program elements as required in section 3 of this act.
     (3) The department shall describe the reasons for its decision to not approve a product stewardship program in the notice to a carpet stewardship organization. The carpet stewardship organization shall revise and resubmit the product stewardship program within sixty days after receiving notice that the program was not approved. The department shall review and approve or not approve the revised product stewardship program within sixty days after receipt.
     (4) On and after July 1, 2014, a product stewardship program not approved by the department is not in compliance with this chapter. The department must list any producer relying on such a product stewardship program as noncompliant with the requirements of this chapter.
     (5) The department must make all approved product stewardship programs and annual reports available for public review on the department's web site and at the department's headquarters. By July 1, 2014, and no later than July 1st annually thereafter, the department shall post a notice on its web site listing producers that are and are not in compliance with this chapter.
     (6) The decision of the department to approve or to not approve a product stewardship program under this section is appealable to the pollution control hearings board as provided in RCW 43.21B.130.

NEW SECTION.  Sec. 6   (1) Beginning July 1, 2015, and each year thereafter, a carpet stewardship organization must submit to the department an annual report describing its activities to achieve the purposes of this chapter.
     (2) The report must demonstrate that the carpet stewardship organization's product stewardship program has met the performance goals of the program including achieving continuous meaningful improvement in the rate of recycling discarded carpet subject to the program. Further, the report must include all of the following:
     (a) A description of how the product stewardship program has implemented all of its required elements, including collecting, transporting, processing, and recycling activities and how the program has been implemented throughout the state as required in section 3(4) and (6) of this act;
     (b) The amount of carpet sold in the state, by square yards and weight in pounds, for residential and commercial carpet and provide an overall total, during the reporting period;
     (c) The amount of discarded carpet recycled and reused, by weight in pounds, during the reporting period;
     (d) The names and locations of carpet processing and recycling facilities used by the product stewardship program and recycled and reused end uses of collected carpet by weight, during the reporting period;
     (e) The amount of discarded carpet collected but not recycled or reused, by weight, and its ultimate disposition;
     (f) The total cost of implementing the product stewardship program and an evaluation of the funding mechanism;
     (g) An evaluation of the effectiveness of the product stewardship program, and anticipated steps, if needed, to improve performance throughout the state;
     (h) Examples of educational materials that were provided to consumers, commercial building owners, carpet installation contractors, and retailers during the reporting period and a summary of outreach efforts, including timeline and frequency; and
     (i) A summary of public comments received regarding the product stewardship program and response to those comments.
     (3) Proprietary information submitted to the department under this chapter is exempt from public disclosure.

NEW SECTION.  Sec. 7   (1) Beginning March 1, 2012, a producer that offers carpet for sale in this state, but is not participating in a carpet stewardship organization, is not in compliance with this chapter.
     (2) No producer may sell or offer for sale carpet in or into the state unless the producer of the carpet is participating in an approved product stewardship program. The department shall send a written warning and a copy of this chapter and any rules adopted to implement this chapter to a producer that is not participating in an approved program. The written warning must inform the producer that it must participate in an approved program within thirty days of the notice.
     (3) A producer that is not listed on the department's internet web site as required in section 5(5) of this act, but demonstrates to the satisfaction of the department that the producer is in compliance with this chapter before the next notice is required to be posted, may request a certification letter from the department stating that the producer is in compliance with this chapter. The letter constitutes proof of compliance with this chapter.
     (4) No one may distribute or sell carpet in or into the state from producers who are not in compliance with this chapter. In-state wholesalers, distributors, and retailers who have: (a) Possession of carpet on the date that restrictions on the sale of carpet become effective may exhaust their existing stock through sales; and (b) specified and bid for a project prior to the effective date of this section or prior to the date a producer has been determined to be out of compliance may complete the specified project.
     (5) The department shall serve, or send with delivery confirmation, a written warning explaining the violation to any person known to be distributing or selling carpet 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 any rules adopted under this chapter.

NEW SECTION.  Sec. 8   (1) Beginning January 1, 2013, and annually thereafter, the department shall establish an annual fee sufficient to cover the costs of administering and enforcing product stewardship programs under this chapter. The total amount of annual fees collected must not exceed the amount necessary to recover costs incurred by the department in connection with the administration, oversight, and enforcement of the requirements of this chapter. Any unspent money from the previous year must be retained in the carpet product stewardship account created in section 11 of this act and applied to reduce the payments by carpet stewardship organizations in the following year. The department shall establish a fee based on market share data provided by carpet stewardship organizations as required in section 3(2)(b) of this act.
     (2) The department must estimate the annual fee for the period of July 1st through June 30th and notify the carpet stewardship organizations by March 1st of each year. The department must collect the annual fee from the carpet stewardship organizations by June 30th.

NEW SECTION.  Sec. 9   Any person acquiring a producer, or who has acquired a producer, has all responsibility for the acquired producer's carpet, including carpet manufactured prior to July 1, 2011, unless that responsibility remains with another entity under the purchase agreement. The acquiring producer must provide the department a letter from the entity that accepts responsibility for the carpet. Cobranding producers may negotiate with retailers for responsibility for those products and must notify the department of the results of their negotiations.

NEW SECTION.  Sec. 10   Nothing in this chapter changes or limits the authority of the Washington utilities and transportation commission to regulate collection of solid waste, including curbside collection of residential recyclable materials, nor does this chapter change or limit the authority of a city or town to provide such service itself or by contract under RCW 81.77.020.

NEW SECTION.  Sec. 11   The carpet product stewardship account is created in the state treasury. All receipts received by the department from producers and carpet stewardship organizations must be deposited in the account. Expenditures from the account may be used by the department only for administering and implementing product stewardship programs. Moneys in the account may be spent only after appropriation.

Sec. 12   RCW 43.21B.110 and 2010 c 210 s 7 and 2010 c 84 s 2 are each reenacted and amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, local health departments, the department of natural resources, the department of fish and wildlife, and the parks and recreation commission:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, section 5 of this act, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.
     (c) A final decision by the department or director made under chapter 183, Laws of 2009.
     (d) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (e) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (f) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (g) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (h) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (j) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).
     (k) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.
     (l) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW.
     (m) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.
     (n) Decisions of a state agency that is an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable under RCW 79.100.120.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (((e) Appeals of decisions by the department as provided in chapter 43.21L RCW.))
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 13   RCW 43.21B.110 and 2010 c 210 s 8 and 2010 c 84 s 3 are each reenacted and amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, local health departments, the department of natural resources, the department of fish and wildlife, and the parks and recreation commission:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, section 5 of this act, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.
     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (i) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).
     (j) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.
     (k) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW.
     (l) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.
     (m) Decisions of a state agency that is an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable under RCW 79.100.120.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (((e) Appeals of decisions by the department as provided in chapter 43.21L RCW.))
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

NEW SECTION.  Sec. 14   By December 1, 2016, the department shall report to the appropriate committees of the legislature concerning the status of adoption and implementation of product stewardship programs and recommendations for revisions to improve the rate of carpet recycling and other goals of this chapter.

NEW SECTION.  Sec. 15   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. 16   Section 12 of this act expires June 30, 2019.

NEW SECTION.  Sec. 17   Section 13 of this act takes effect June 30, 2019.

NEW SECTION.  Sec. 18   A new section is added to chapter 42.56 RCW to read as follows:
     Proprietary data submitted to the department of ecology under section 7(3) of this act is exempt from disclosure under this chapter.

NEW SECTION.  Sec. 19   Sections 1 through 11 and 14 of this act constitute a new chapter in Title 70 RCW.