BILL NUMBER: AB 794 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2011
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 ,
and to add Section 42461.5 to, 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
(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 the department to impose a
civil penalty in an amount of up to $25,000 per violation against any
person, including an e-waste authorized
collector or covered electronic waste (e-waste)
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 authorized
collector or covered e-waste 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 authorized
collector or the covered e-waste
recycler has made verifiable and reasonable efforts to determine the
source of the covered electronic waste, unless the department
determines the electronic waste authorized
collector or covered e-waste recycler was negligent
in making those efforts ensuring the accuracy
of the source of the waste . The bill would further
authorize the department to revoke the approval or deny the renewal
application of a covered e-waste authorized
collector or covered e-waste 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 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. A violation of the act, including the
regulations adopted pursuant to the act, is a crime.
This bill would also authorize allow
the department to pay an electronic waste recycling or recovery
payment for only for covered electronic
waste for which the authorized collector or covered e-waste
recycler demonstrates to have been 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 and would prohibit the
department from making those payments for covered electronic waste
generated outside of the state and brought into the state. The bill
would require the department to establish the documentation
requirements necessary for an authorized collector or covered e-waste
recycler to demonstrate that covered electronic waste was
generated in the state and eligible for payment. Because
a violation of these requirements would be a crime, the bill would
impose a state-mandated local program .
(4) 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 post-
payment audit of authorized collectors, covered e-waste
recyclers, or manufacturers receiving payments from the department to
determine whether electronic waste recovery 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, and would prescribe procedures for the appeal of the department'
s denial or adjustment of a payment claim by a covered e-waste
recycler that is dissatisfied with the department's action in that
regard.
(5) 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
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.
SEC. 2. Section 42461.5 is added to the
Public Resources Code , to read:
42461.5. The Legislature finds and declares that the changes made
by Assembly Bill 794 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 make technical
clarifications that implement the Legislature's intent when this
chapter was first enacted in 2003.
SEC. 2. SEC. 3. 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 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
the Department of Resources Recycling and Recovery against any
person, including an electronic waste collector or recycler
authorized collector or covered electronic waste
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 authorized
collector or covered electronic waste 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 authorized collector or covered electronic
waste 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
and Recovery determines the authorized collector or covered
electronic waste recycler was negligent in ensuring the accuracy of
the source of the covered electronic waste, the authorized collector
or covered electronic waste recycler who made that false
statement or representation shall nonetheless be liable for the civil
liability imposed by this subdivision.
(e) The Department of Resources Recycling and Recovery may revoke
the approval or deny the renewal application of an
electronic waste collector or recycler 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. Furthermore, the
Department of Resources Recycling and Recovery may deny an
application for approval or renewal from an electronic waste
collector or recycler authorized collector or covered
electronic waste 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. SEC. 4. 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 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) (1) 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. electronic waste recovery
payment only for covered electronic waste for which the authorized
collector or covered electronic waste recycler demonstrates was
generated by a person who used the covered electronic device while
located in this state. The department shall not pay an electronic
waste recycling payment or electronic waste recovery payment for
covered electronic waste generated outside of the state and
subsequently brought into the state.
(2) The Department of Resources Recycling and Recovery shall
establish the documentation requirements that are necessary for an
authorized collector or covered electronic waste recycler to
demonstrate that covered electronic waste was generated by a person
who used the electronic waste while located in the state and is
eligible for payment.
(2)
(3) 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 the Department of Resources
Recycling and Recovery.
(g) 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) 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. 4. SEC. 5. 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, 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 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 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 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 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 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) The Department of Resources Recycling and Recovery may conduct
a selective post-payment 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.
(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 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 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 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 the Department of Resources Recycling and Recovery
without a hearing or further consideration of the appeal.
(4) 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 the Department of Resources Recycling and Recovery.
The hearing officer shall issue a written decision stating the
factual and legal basis for the decision.
SEC. 6. 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.