California Assembly Bill AB794 Amended / Bill

 BILL NUMBER: AB 794AMENDED BILL TEXT AMENDED IN SENATE JULY 7, 2011 AMENDED IN ASSEMBLY MAY 3, 2011 AMENDED IN ASSEMBLY APRIL 13, 2011 INTRODUCED BY Assembly Member Wieckowski  (   Principal coauthor:   Assembly Member   Carter   )  FEBRUARY 17, 2011 An act to amend Sections 42461, 42474, 42476, and 42479 of the Public Resources Code, relating to solid waste. LEGISLATIVE COUNSEL'S DIGEST AB 794, as amended, Wieckowski. Solid waste: hazardous electronic waste. (1) Existing law establishes the Electronic Waste Recycling Act of 2003, which regulates the disposal and recycling of electronic waste. The act further makes it unlawful to sell, on and after July 1, 2004, a covered electronic device in this state to a consumer, as defined, unless the Department of Resources Recycling and Recovery  (CalRecycle)   (department)  or the Department of Toxic Substances Control determines that the manufacture of that device is in compliance with the act. The act further prohibits the sale of a covered electronic device, after January 1, 2005, that is not labeled, as specified. The act contains legislative findings and declarations that declare that one of the purposes of the act is to provide sufficient funding for the safe, cost-free, and convenient collection and recycling of 100% of the covered electronic waste discarded or offered for recycling in the state, to, among other things, eliminate electronic waste stockpiles and legacy devices by December 31, 2007. This bill would revise those findings and declarations to declare that one of the purposes of the act is to provide sufficient funding for the safe, cost-free, and convenient collection and recycling of 100% of the covered electronic waste initially discarded in the state, to, among other things, eliminate electronic waste stockpiles and legacy devices by December 31, 2007. (2) The act imposes various civil penalties in an amount of up to $25,000 to be administratively imposed by the Department of Resources Recycling and Recovery for specified violations of the act. This bill would additionally authorize  CalRecycle   the department  to impose a civil penalty in an amount of up to $25,000 per violation against any person, including an e-waste collector or recycler, that makes a false statement or representation in a document filed, submitted, maintained, or used for purposes of compliance with the act and associated regulations. The bill would require that an electronic waste collector or recycler who makes a false statement or representation regarding the source of covered electronic waste is not liable for that statement or representation if the electronic waste collector or the recycler has made verifiable and reasonable efforts to determine the source of the covered electronic waste  , unless the department determines the electronic waste collector or recycler was negligent in making those efforts  . The bill would further authorize  CalRecycle   the department  to revoke the approval or deny the renewal application of a covered e-waste collector or recycler that makes a false statement or representation, or to deny an application from an applicant or an individual identified in the application that has a history demonstrating a pattern of operation in conflict with the act and the regulations adopted pursuant to the act. (3) The act authorizes  CalRecycle   the department  to pay an electronic waste recycling payment or electronic waste recovery payment for covered waste if specified conditions are met, including, among other things, that the covered electronic waste, including any residuals from the processing of the waste, is handled in compliance with all applicable statutes and regulations. This bill would also authorize  CalRecycle   the department  to pay an electronic waste recycling or recovery payment for covered electronic waste generated by a person who used the covered electronic device while located in this state and source-anonymous covered electronic waste resulting from load check activities, illegal disposal cleanup activities conducted by an approved collector who is a local government or its designated approved collector, or illegal disposal on property owned or managed by an approved collector. (4) The act requires  CalRecycle   the department  , for covered electronic waste collected for recycling on and after January 1, 2005, to make those electronic waste recycling and recovery payments for the collection and recycling of covered electronic waste to an authorized collector or covered electronic waste recycler, respectively, upon receipt of a completed and verified invoice submitted to  CalRecycle   the department  by the authorized collector or recycler in the form and manner determined by  CalRecycle   the department  . This bill would instead require  CalRecycle   the department  to make those electronic waste recycling and recovery payments for the collection and recycling of covered e-waste to an authorized collector or covered e-waste recycler, respectively, upon completion of  CalRecyle's   the department's  review of a payment claim, submitted to  CalRecyle   the department  in the form and manner determined by  CalRecycle   the department  . The bill would also authorize  CalRecycle   the department  to conduct a selective audit of authorized collectors, covered e-waste recyclers, or manufacturers receiving payments from  CalRecycle   the department  to determine whether electronic waste recovery payments or payments to manufacturers are being made by  CalRecycle   the department  according to the requirements of the act and the regulations adopted pursuant to that act, and would prescribe procedures for the appeal of the  CalRecycle's   department's  denial or adjustment of a payment claim by a covered e-waste recycler that is dissatisfied with  CalRecycle's   the department's  action in that regard. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 42461 of the Public Resources Code is amended to read: 42461. The Legislature finds and declares all of the following: (a) The purpose of this chapter is to enact a comprehensive and innovative system for the reuse, recycling, and proper and legal disposal of covered electronic devices, and to provide incentives to design electronic devices that are less toxic, more recyclable, and that use recycled materials. (b) It is the further purpose of this chapter to enact a law that establishes a program that is cost free and convenient for consumers and the public to return, recycle, and ensure the safe and environmentally sound disposal of covered electronic devices. (c) It is the intent of the Legislature that the cost associated with the handling, recycling, and disposal of covered electronic devices is the responsibility of the producers and consumers of covered electronic devices, and not local government or their service providers, state government, or taxpayers. (d) In order to reduce the likelihood of illegal disposal of these hazardous materials, it is the intent of this chapter to ensure that any cost associated with the proper management of covered electronic devices be internalized by the producers and consumers of covered electronic devices at or before the point of purchase, and not at the point of discard. (e) Manufacturers of covered electronic devices, in working to achieve the goals and objectives of this chapter, should have the flexibility to partner with each other and with those public sector entities and business enterprises that currently provide collection and processing services to develop and promote a safe and effective covered electronic device recycling system for California. (f) The producers of electronic products, components, and devices should reduce and, to the extent feasible, ultimately phase out the use of hazardous materials in those products. (g) Electronic products, components, and devices, to the greatest extent feasible, should be designed for extended life, repair, and reuse. (h) The purpose of the Hazardous Electronic Waste Recycling Act is to provide sufficient funding for the safe, cost-free, and convenient collection and recycling of 100 percent of the covered electronic waste initially discarded in the state, to eliminate electronic waste stockpiles and legacy devices by December 31, 2007, to end the illegal disposal of covered electronic devices, to establish manufacturer responsibility for reporting to the board on the manufacturer's efforts to phase out hazardous materials in electronic devices and increase the use of recycled materials, and to ensure that electronic devices sold in the state do not violate the regulations adopted by the Department of Toxic Substances Control pursuant to Section 25214.10 of the Health and Safety Code.  (i) For purposes of this chapter "CalRecycle" means the Department of Resources Recycling and Recovery.  SEC. 2. Section 42474 of the Public Resources Code is amended to read: 42474. (a) Civil liability in an amount of up to two thousand five hundred dollars ($2,500) per offense may be administratively imposed by  CalRecycle   the Department of Resources Recycling and Recovery  for each sale of a covered electronic device for which a covered electronic waste recycling fee has not been paid pursuant to Section 42464. (b) A civil penalty in an amount of up to five thousand dollars ($5,000) per offense may be imposed by a superior court for each sale of a covered electronic device for which a covered electronic waste recycling fee has not been paid pursuant to Section 42464. (c) Civil liability in an amount of up to twenty-five thousand dollars ($25,000) may be administratively imposed by  CalRecycle   the Department of Resources Recycling and Recovery  against manufacturers for failure to comply with this chapter, except as otherwise provided in subdivision (a). (d) Civil liability in an amount of up to twenty-five thousand dollars ($25,000) per violation may be administratively imposed by  CalRecycle   the Department of Resources Recycling and Recovery  against any person, including an electronic waste collector or recycler, who makes a false statement or representation in any document filed, submitted, maintained, or used for purposes of compliance with this chapter and associated regulations. An electronic waste collector or recycler who makes a false statement or representation regarding the source of covered electronic waste shall not be liable for that statement or representation if the electronic waste collector or the recycler has made verifiable and reasonable efforts to determine the source of the covered electronic waste, such as, but not limited to, checking personal identification or performing reasonable spot checks or audits of the veracity of source documentation.  If the Department of Resources Recycling and Recovery determines the electronic waste collector or recycler   was negligent in making those efforts to determine the source of the covered electronic waste, the electronic waste collector or recycler who made that false statement or representation shall nonetheless be liable for the civil liability imposed by this subdivision.  (e)  CalRecycle   The Department of Resources Recycling and Recovery  may revoke the approval or deny the renewal application of an electronic waste collector or recycler that makes a false statement or representation in a document filed, submitted, maintained, or used for purposes of compliance with this chapter and the regulations adopted pursuant to this chapter. Furthermore,  CalRecycle   the Department of Resources Recycling and Recovery  may deny an application for approval or renewal from an electronic waste collector or recycler or an individual identified in the application that has a history demonstrating a pattern of operation in conflict with the requirements of this chapter and the regulations adopted pursuant to this chapter. SEC. 3. Section 42476 of the Public Resources Code is amended to read: 42476. (a) The Electronic Waste and Recovery and Recycling Account is hereby established in the Integrated Waste Management Fund. All fees collected pursuant to this chapter shall be deposited in the account. Notwithstanding Section 13340 of the Government Code, the funds in the account are hereby continuously appropriated, without regard to fiscal year, for the following purposes: (1) To pay refunds of the covered electronic waste recycling fee imposed under Section 42464. (2) To make electronic waste recovery payments to an authorized collector of covered electronic waste pursuant to Section 42479. (3) To make electronic waste recycling payments to covered electronic waste recyclers pursuant to Section 42479. (4) To make payments to manufacturers pursuant to subdivision (h). (b) (1) The money in the account may be expended for the following purposes only upon appropriation by the Legislature in the annual Budget Act: (A) For the administration of this chapter by  CalRecycle   the Department of Resources Recycling and Recovery  and the department. (B) To reimburse the State Board of Equalization for its administrative costs of registering, collecting, making refunds, and auditing retailers and consumers in connection with the covered electronic waste recycling fee imposed under Section 42464. (C) To provide funding to the department to implement and enforce Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code, as that chapter relates to covered electronic devices, and any regulations adopted by the department pursuant to that chapter. (D) To establish the public information program specified in subdivision (d). (2) Any fines or penalties collected pursuant to this chapter shall be deposited in the Electronic Waste Penalty Subaccount, which is hereby established in the account. The funds in the Electronic Waste Penalty Subaccount may be expended by  CalRecycle   the Department of Resources Recycling and Recovery  or the department only upon appropriation by the Legislature. (c) Notwithstanding Section 16475 of the Government Code, any interest earned upon funds in the Electronic Waste Recovery and Recycling Account shall be deposited in that account for expenditure pursuant to this chapter. (d) Not more than 1 percent of the funds annually deposited in the Electronic Waste Recovery and Recycling Account shall be expended for the purposes of establishing the public information program to educate the public in the hazards of improper covered electronic device storage and disposal and on the opportunities to recycle covered electronic devices. (e)  CalRecycle   The   Department of Resources Recycling and Recovery  shall adopt regulations specifying cancellation methods for the recovery, processing, or recycling of covered electronic waste. (f) (1)  CalRecycle   The Department of Resources Recycling and Recovery  may pay an electronic waste recycling payment or electronic waste recovery payment for either of the following: (A) Covered electronic waste generated by a person who used the covered electronic device while located in this state. Covered electronic waste generated outside of the state and subsequently brought into the state is not eligible for payment. (B) Source-anonymous covered electronic waste resulting from load check activities, illegal disposal cleanup activities conducted by an approved collector who is a local government or its designated approved collector, or illegal disposal on property owned or managed by an approved collector. (2)  CalRecycle   The Department of Resources Recycling and Recovery  may pay an electronic waste recycling payment or electronic waste recovery payment for covered electronic waste only if all of the following conditions are met: (A) The covered electronic waste, including any residuals from the processing of the waste, is handled in compliance with all applicable statutes and regulations. (B) The manufacturer or the authorized collector or recycler of the electronic waste provide a cost free and convenient opportunity to recycle electronic waste, in accordance with the legislative intent specified in subdivision (b) of Section 42461. (C) If the covered electronic waste is processed, the covered electronic waste is processed in this state according to the cancellation method authorized by  CalRecycle   the Department of Resources Recycling and Recovery  . (g) CalRecycle   The   Department of Resources Recycling and Recovery  shall declare that the state is a market participant in the business of the recycling of covered electronic waste for all of the following reasons: (1) The fee is collected from the state's consumers for covered electronic devices sold for use in the state. (2) The purpose of the fee and subsequent payments is to prevent damage to the public health and the environment from waste generated in the state. (3) The recycling system funded by the fee ensures that economically viable and sustainable markets are developed and supported for recovered materials and components in order to conserve resources and maximize business and employment opportunities within the state. (h) (1)  CalRecycle   The Department of Resources Recycling and Recovery  may make a payment to a manufacturer that takes back a covered electronic device from a consumer in this state for purposes of recycling the device at a processing facility. The amount of the payment made by  CalRecycle   the Department of Resources Recycling and Recovery  shall equal the value of the covered electronic waste recycling fee paid for that device. To qualify for a payment pursuant to this subdivision, the manufacturer shall demonstrate both of the following to  CalRecycle   the Department of Resources Recycling and Recovery  : (A) The covered electronic device for which payment is claimed was used in this state. (B) The covered electronic waste for which a payment is claimed, including any residuals from the processing of the waste, has been, and will be, handled in compliance with all applicable statutes and regulations. (2) A covered electronic device for which a payment is made under this subdivision is not eligible for an electronic waste recovery payment or an electronic waste recycling payment under Section 42479. SEC. 4. Section 42479 of the Public Resources Code is amended to read: 42479. (a) (1) For covered electronic waste collected for recycling on and after January 1, 2005,  CalRecycle   the Department of Resources Recycling and Recovery  shall make electronic waste recovery payments and electronic waste recycling payments for the collection and recycling of covered e-waste to an authorized collector or covered e-waste recycler, respectively, upon completion of  CalRecycle's review   review by the Department of Resources Recycling and Recovery  of a payment claim submitted to  CalRecycle   the Department of Resources Recycling and Recovery  by the authorized collector or e-waste recycler in the form and manner determined by  CalRecycle   the Department of Resources Recycling and Recovery  .  CalRecycle   The Department of Resources Recycling and Recovery  may examine a payment claim to validate the completeness, accuracy, truthfulness, and compliance with applicable laws and regulations. Both of the following shall be considered official records for purposes of Section 1280 of the Evidence Code: (A) The results of any payment claim review or subsequent payment claim audit. (B) Written information compiled by  CalRecycle   the Department of Resources Recycling and Recovery  during a claim review or subsequent claim audit. (2) To the extent authorized pursuant to Section 42477, a covered e-waste recycler shall make the electronic waste recovery payments to an authorized collector upon receipt of a completed and verified invoice submitted to the recycler by the authorized collector in the form and manner determined by  CalRecycle   the Department of Resources Recycling and Recovery  . (b) A covered e-waste recycler is eligible for a payment pursuant to this section only if the covered e-waste recycler meets all of the following requirements: (1) The covered e-waste recycler is in compliance with applicable requirements of Article 6 (commencing with Section 66273.70) of Chapter 23 of Division 4.5 of Title 22 of the California Code of Regulations. (2) The covered e-waste recycler demonstrates to  CalRecycle   the Department of Resources Recycling and Recovery  that any facility utilized by the covered e-waste recycler for the handling, processing, refurbishment, or recycling of covered electronic devices meets all of the following standards: (A) The facility has been inspected by the department within the past 12 months and had been found to be operating in conformance with all applicable laws, regulations, and ordinances. (B) The facility is accessible during normal business hours for unannounced inspections by state or local agencies. (C) The facility has health and safety, employee training, and environmental compliance plans and certifies compliance with the plans. (D) The facility meets or exceed the standards specified in Chapter 1 (commencing with Section 1171) of Part 4 of Division 2, Division 4 (commencing with Section 3200), and Division 5 (commencing with Section 6300), of the Labor Code or, if all or part of the work is to be performed in another state, the equivalent requirements of that state. (c) CalRecycle   The Department of Resources Recycling and Recovery  may conduct a selective audit of authorized collectors, covered e-waste recyclers, or manufacturers receiving payments from  CalRecycle   the Department of Resources Recycling and Recovery  to determine whether electronic waste recovery payments, electronic waste recycling payments, or payments to manufacturers are being paid by  CalRecycle   the Department of Resources Recycling and Recovery  according to the requirements of this chapter and the regulations adopted pursuant to this chapter.  CalRecycle   The Department of Resources Recycling and Recovery  may collect and recover from authorized collectors, covered e-waste recyclers, or manufacturers, with interest, any moneys improperly paid. (d) (1) A covered e-waste recycler wishing to contest the denial or adjustment of a payment claim shall appeal that action by filing a written appeal with  CalRecycle   the Department of Resources Recycling and Recovery  within 30 days of the date of the notice denying or adjusting the claim. (2) An appeal shall contain the covered e-waste recycler's name and identification number from its proof of approval, the month and year in question, a copy of the payment claim and the notice denying the claim, a state of the facts and the law forming the basis for appeal, a description of why  CalRecyle's actions   the actions of the Department of Resources Recycling   and Recovery  were in error, and any other documentation that supports the appeal. (3) An appeal that is received by  CalRecycle   the Department of Resources Recycling and Recovery  after 30 days from the date of the notice denying or adjusting the claim, or that lacks the required content, shall be denied by  CalRecyle   the Department of Resources Recycling and Recovery  without a hearing or further consideration of the appeal. (4)  CalRecycle   The   Department of Resources Recycling and Recovery  shall provide a hearing before the executive director, or his or her designee, who shall act as a hearing officer. The hearing officer shall consider the claim, the reasons for denial or adjustment of the payment claim, and any additional relevant information presented by the claimant or  CalRecycle   the Department of Resources Recycling and Recovery  . The hearing officer shall issue a written decision stating the factual and legal basis for the decision.