BILL NUMBER: AB 549 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 28, 2012
PASSED THE ASSEMBLY AUGUST 29, 2012
AMENDED IN SENATE AUGUST 23, 2012
AMENDED IN SENATE JUNE 26, 2012
AMENDED IN SENATE MAY 31, 2012
AMENDED IN SENATE MAY 2, 2012
INTRODUCED BY Assembly Members Carter and Wieckowski
FEBRUARY 16, 2011
An act to amend Sections 42461, 42463, 42474, and 42476 of, to add
Section 42461.5 to, and to repeal and add Section 42479 of, the
Public Resources Code, relating to recycling.
LEGISLATIVE COUNSEL'S DIGEST
AB 549, Carter. Recycling: electronic waste.
(1) Existing law, the Electronic Waste Recycling Act of 2003
(act), requires a retailer selling a covered electronic device in
this state to collect a covered electronic waste recycling fee from
the consumer, as specified. These fees are deposited in the
Electronic Waste Recovery and Recycling Account, and the Department
of Resources Recycling and Recovery (department) is continuously
appropriated the money in the account to, among other things, make
electronic waste recovery payments and recycling payments. The
department is authorized to make these payments only if certain
conditions are met. Existing law requires the act to be enforced
pursuant to the hazardous waste control laws, a violation of which,
including the making of a false statement or representation in a
document, is a crime.
This bill would additionally require, as a condition of making
these payments, that the covered electronic waste is demonstrated to
have been generated by a person who used the covered electronic
device while located in this state. The bill would specify that
covered electronic waste generated outside of the state and
subsequently brought into the state is not eligible for payment and
would require the department to establish documentation requirements
necessary to demonstrate that covered electronic waste was generated
in the state and eligible for payment. Since a false statement or
representation in that document would be a crime, the bill would
impose a state-mandated local program.
(2) The act requires 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 the department by the
authorized collector or recycler in the form and manner determined by
the department.
This bill would instead require 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 the
department's review of a payment claim, submitted to the department
in the form and manner determined by the department. The bill would
also authorize the department to conduct a selective audit of
authorized collectors, covered e-waste recyclers, or manufacturers
receiving payments from the department to determine whether
electronic waste recovery or recycling payments or payments to
manufacturers are being made by the department according to the
requirements of the act and the regulations adopted pursuant to that
act.
(3) Existing law requires a person challenging certain actions of
the department to first exhaust all administrative remedies by filing
with the department an administrative appeal no later than 30
calendar days from the date of the departments's action, in
accordance with the regulations adopted to implement the act.
This bill would require the hearing to be held before the Director
of Resources Recycling and Recovery or his or her designee, who
would be required to issue a written decision stating the factual and
legal basis for this decision.
The bill would also make conforming changes with reference to the
department.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
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 Electronic Waste Recycling Act of 2003 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.
SEC. 2. Section 42461.5 is added to the Public Resources Code, to
read:
42461.5. (a) The Legislature finds and declares that the changes
made by this act of the 2011-12 Regular Session of the Legislature to
subdivision (h) of Section 42461, subdivision (f) of Section 42476,
and subdivision (a) of Section 42479, clarify and strengthen the
enforcement provisions of the act, so as to implement the Legislature'
s intent when this chapter was first enacted on January 1, 2003.
(b) The changes specified in subdivision (a) shall not be
interpreted as affecting an administrative or legal enforcement
action that was filed before, or is pending on, January 1, 2013, and
shall not prevent the taking of a legal or administrative enforcement
action that may be brought on or after January 1, 2013, with regard
to any actions taken, or claims filed, before that date.
SEC. 3. Section 42463 of the Public Resources Code is amended to
read:
42463. For the purposes of this chapter, the following terms have
the following meanings, unless the context clearly requires
otherwise:
(a) "Account" means the Electronic Waste Recovery and Recycling
Account created in the Integrated Waste Management Fund under Section
42476.
(b) "Authorized collector" means any of the following:
(1) A city, county, or district that collects covered electronic
devices.
(2) A person or entity that is required or authorized by a city,
county, or district to collect covered electronic devices pursuant to
the terms of a contract, license, permit, or other written
authorization.
(3) A nonprofit organization that collects or accepts covered
electronic devices.
(4) A manufacturer or agent of the manufacturer that collects,
consolidates, and transports covered electronic devices for recycling
from consumers, businesses, institutions, and other generators.
(5) An entity that collects, handles, consolidates, and transports
covered electronic devices and has filed applicable notifications
with the department pursuant to Chapter 23 (commencing with Section
66273.1) of Division 4.5 of Title 22 of the California Code of
Regulations.
(c) "Consumer" means a person who purchases a new or refurbished
covered electronic device in a transaction that is a retail sale or
in a transaction to which a use tax applies pursuant to Part 1
(commencing with Section 6001) of Division 2 of the Revenue and
Taxation Code.
(d) Notwithstanding Section 40118, "department" means the
Department of Toxic Substances Control.
(e) (1) Except as provided in paragraph (2), "covered electronic
device" means a video display device containing a screen greater than
four inches, measured diagonally, that is identified in the
regulations adopted by the department pursuant to subdivision (b) of
Section 25214.10.1 of the Health and Safety Code.
(2) "Covered electronic device" does not include any of the
following:
(A) A video display device that is a part of a motor vehicle, as
defined in Section 415 of the Vehicle Code, or any component part of
a motor vehicle assembled by, or for, a vehicle manufacturer or
franchised dealer, including replacement parts for use in a motor
vehicle.
(B) A video display device that is contained within, or a part of
a piece of industrial, commercial, or medical equipment, including
monitoring or control equipment.
(C) A video display device 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.
(D) An electronic device, on and after the date that it ceases to
be a covered electronic device under subdivision (e) of Section
25214.10.1 of the Health and Safety Code.
(f) "Covered electronic waste" or "covered e-waste" means a
covered electronic device that is discarded.
(g) "Covered electronic waste recycling fee" or "covered e-waste
recycling fee" means the fee imposed pursuant to Article 3
(commencing with Section 42464).
(h) "Covered electronic waste recycler" or "covered e-waste
recycler" means any of the following:
(1) A person who engages in the manual or mechanical separation of
covered electronic devices to recover components and commodities
contained therein for the purpose of reuse or recycling.
(2) A person who changes the physical or chemical composition of a
covered electronic device, in accordance with the requirements of
Chapter 6.5 (commencing with Section 25100) of Division 20 of the
Health and Safety Code and the regulations adopted pursuant to that
chapter, by deconstructing, size reduction, crushing, cutting,
sawing, compacting, shredding, or refining for purposes of
segregating components, for purposes of recovering or recycling those
components, and who arranges for the transport of those components
to an end user.
(3) A manufacturer who meets any conditions established by this
chapter and Chapter 6.5 (commencing with Section 25100) of Division
20 of the Health and Safety Code for the collection or recycling of
covered electronic waste.
(i) "Discarded" has the same meaning as defined in subdivision (b)
of Section 25124 of the Health and Safety Code.
(j) "Electronic waste recovery payment" means an amount
established and paid by the Department of Resources Recycling and
Recovery pursuant to Section 42477.
(k) "Electronic waste recycling payment" means an amount
established and paid by the Department of Resources Recycling and
Recovery pursuant to Section 42478.
(l) "Hazardous material" has the same meaning as defined in
Section 25501 of the Health and Safety Code.
(m) "Manufacturer" means either of the following:
(1) A person who manufactures a covered electronic device sold in
this state.
(2) A person who sells a covered electronic device in this state
under that person's brand name.
(n) "Person" means an individual, trust firm, joint stock company,
business concern, and corporation, including, but not limited to, a
government corporation, partnership, limited liability company, and
association. Notwithstanding Section 40170, "person" also includes a
city, county, city and county, district, commission, the state or a
department, agency, or political subdivision thereof, an interstate
body, and the United States and its agencies and instrumentalities to
the extent permitted by law.
(o) "Recycling" has the same meaning as defined in subdivision (a)
of Section 25121.1 of the Health and Safety Code.
(p) "Refurbished," when used to describe a covered electronic
device, means a device that the manufacturer has tested and returned
to a condition that meets factory specifications for the device, has
repackaged, and has labeled as refurbished.
(q) "Retailer" means a person who makes a retail sale of a new or
refurbished covered electronic device. "Retailer" includes a
manufacturer of a covered electronic device who sells that covered
electronic device directly to a consumer through any means,
including, but not limited to, a transaction conducted through a
sales outlet, catalog, or the Internet, or any other similar
electronic means.
(r) (1) "Retail sale" has the same meaning as defined under
Section 6007 of the Revenue and Taxation Code.
(2) "Retail sale" does not include the sale of a covered
electronic device that is temporarily stored or used in California
for the sole purpose of preparing the covered electronic device for
use thereafter solely outside the state, and that is subsequently
transported outside the state and thereafter used solely outside the
state.
(s) "Vendor" means a person that makes a sale of a covered
electronic device for the purpose of resale to a retailer who is the
lessor of the covered electronic device to a consumer under a lease
that is a continuing sale and purchase pursuant to Part 1 (commencing
with Section 6001) of Division 2 of the Revenue and Taxation Code.
(t) "Video display device" means an electronic device with an
output surface that displays, or is capable of displaying, moving
graphical images or a visual representation of image sequences or
pictures, showing a number of quickly changing images on a screen in
fast succession to create the illusion of motion, including, if
applicable, a device that is an integral part of the display, in that
it cannot be easily removed from the display by the consumer, that
produces the moving image on the screen. A video display device may
use, but is not limited to, a cathode ray tube (CRT), liquid crystal
display (LCD), gas plasma, digital light processing, or other image
projection technology.
SEC. 4. 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 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 the board
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
the Department of Resources Recycling and Recovery against a person,
including an authorized collector or covered electronic waste
recycler, that makes a false statement or representation in any
document filed, submitted, maintained, or used for purposes of
compliance with this chapter and associated regulations.
(e) (1) The Department of Resources Recycling and Recovery may
revoke the approval or deny the renewal application of an authorized
collector or covered electronic waste 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.
(2) In addition to the authority specified in paragraph (1), the
Department of Resources Recycling and Recovery may deny an
application for approval or renewal from an authorized collector or
covered electronic waste recycler that, or an individual identified
in the application who, has a history demonstrating a pattern of
operation in conflict with the requirements of this chapter and the
regulations adopted pursuant to this chapter.
(3) (A) A person challenging a revocation, denial of application
renewal, or application denial under this chapter, or an approved
covered electronic waste recycler challenging the denial or
adjustment of an electronic waste recovery payment or electronic
waste recycling payment, shall first exhaust all administrative
remedies by filing with the Department of Resources Recycling and
Recovery a timely administrative appeal, in accordance with the
regulations adopted to implement this chapter.
(B) The hearing shall be held before the Director of Resources
Recycling and Recovery or his or her designee, who shall issue a
written decision stating the factual and legal basis for this
decision.
SEC. 5. Section 42476 of the Public Resources Code is amended to
read:
42476. (a) The Electronic Waste 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 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 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) The Department of Resources Recycling and Recovery shall adopt
regulations specifying cancellation methods for the recovery,
processing, or recycling of covered electronic waste.
(f) The Department of Resources Recycling and Recovery may pay an
electronic waste recycling payment or electronic waste recovery
payment only for covered electronic waste that meets all of the
following conditions:
(1) (A) The covered electronic waste is demonstrated to have been
generated by a person who used the covered electronic device while
located in this state.
(B) Covered electronic waste generated outside of the state and
subsequently brought into the state is not eligible for payment.
(C) The Department of Resources Recycling and Recovery shall
establish documentation requirements for purposes of this paragraph
that are necessary to demonstrate that the covered electronic waste
was generated in the state and eligible for payment.
(2) The covered electronic waste, including any residuals from the
processing of the waste, is handled in compliance with all
applicable statutes and regulations.
(3) The manufacturer or the authorized collector or recycler of
the electronic waste provides a cost-free and convenient opportunity
to recycle electronic waste, in accordance with the legislative
intent specified in subdivision (b) of Section 42461.
(4) If the covered electronic waste is processed, the covered
electronic waste is processed in this state according to the
cancellation method authorized by the Department of Resources
Recycling and Recovery.
(g) The Legislature hereby declares 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) 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
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 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. 6. Section 42479 of the Public Resources Code is repealed.
SEC. 7. Section 42479 is added to the Public Resources Code, to
read:
42479. (a) (1) For covered electronic waste collected for
recycling on and after January 1, 2005, 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 the review by the
Department of Resources Recycling and Recovery of a payment claim
submitted to the Department of Resources Recycling and Recovery by
the authorized collector or e-waste recycler in the form and manner
determined by the Department of Resources Recycling and Recovery. The
Department of Resources Recycling and Recovery may examine a payment
claim for a period of not more than 90 days from the date of receipt
of the payment claim to validate the claim's completeness, accuracy,
truthfulness, and compliance with applicable laws and regulations.
All of the following shall be considered official records for
purposes of Section 1280 of the Evidence Code:
(A) The results of a payment claim review or subsequent payment
claim audit.
(B) Written information compiled by the Department of Resources
Recycling and Recovery during a claim review or subsequent claim
audit.
(2) To the extent authorized by 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 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 the Department of
Resources Recycling and Recovery that a 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 exceeds the standards specified in
Chapter 1 (commencing with Section 1171) of Part 4 of Division 2 of,
Division 4 (commencing with Section 3200) of, 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) The Department of Resources Recycling and Recovery may conduct
a selective audit of authorized collectors, covered e-waste
recyclers, or manufacturers receiving payments from 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 the Department of
Resources Recycling and Recovery according to the requirements of
this chapter and the regulations adopted pursuant to this chapter.
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.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.