BILL NUMBER: AB 794 AMENDED
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.