Senate Bill No. 746
(By Senator Facemyer)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §22-15A-2 and §22-15A-5 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto five new sections, designated §22-15A-24,
§22-15A-24a, §22-15A-25, §22-15A-26 and §22-15A-27, all
relating to implementing a covered electronic devices takeback
program with manufacturers; and providing an opportunity to
counties and municipalities to implement a covered electronic
devices takeback program.
Be it enacted by the Legislature of West Virginia:
That §22-15A-2 and §22-15A-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto five new sections, designated §22-15A-24,
§22-15A-24a, §22-15A-25, §22-15A-26 and §22-15A-27, all to read as
follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL ACTION PLAN.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers, feed hopper or watering troughs
for livestock, other agricultural uses approved by the Department
of Environmental Protection, playground equipment, boat or truck
dock construction, house or building construction, go-cart,
motorbike or race track barriers, or similar types of beneficial
applications:
Provided, That waste tires may not be reused as
fencing, as erosion control structures, along stream banks or river
banks or reused in any manner where human health or the
environment, as determined by the Secretary of the Department of
Environmental Protection, is put at risk.
(2) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(3) (A) "Computer" means a desktop personal computer or laptop
computer, including the computer monitor.
(B) "Computer" does not include:
(i) Personal digital assistant device;
(ii) A computer peripheral device, including, but not limited
to:
(I) A mouse or other similar pointing device;
(II) A printer; or
(III) A detachable keyboard.
(3) (4) "Court" means any circuit, magistrate or municipal
court.
(5) "Covered electronic device" means a computer or video
display device with a screen that is greater than four inches
measured diagonally. "Covered electronic device" does not include
a video display device that is part of a motor vehicle or that is
contained within a household appliance or commercial, industrial or
medical equipment.
(4) (6) "Department" means the Department of Environmental
Protection.
(5) (7) "Litter" means all waste material including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper,
covered electronic devices, ashes,
cigarette or cigar butt, carcass of any dead animal or any part
thereof, or any other offensive or unsightly matter, but not
including the wastes of primary processes of mining, logging,
sawmilling, farming or manufacturing.
(6) (8) "Litter receptacle" means those containers suitable
for the depositing of litter at each respective public area
designated by the secretary's rules promulgated pursuant to
subsection (e), section three of this article.
(9) "Manufacturer" means a person that is the brand owner of
a covered electronic device sold or offered for sale in the state
by any means including transaction conducted through sales outlets,
catalogs or the Internet.
(7) (10) "Person" means a natural person, corporation, firm,
partnership, association or society, and the plural as well as the
singular.
(8) (11) "Public area" means an area outside of a
municipality, including public road and highway rights-of-way,
parks and recreation areas owned or controlled by this state or any
county of this state, or an area held open for unrestricted access
by the general public.
(12) "Recyclable materials" means those materials that:
(A) Would otherwise become solid waste for disposal in a
refuse disposal system; and
(B) May be collected, separated or processed and returned to
the marketplace in the form of raw materials or products.
(9) (13) "Remediate or Remediation" means to remove all
litter, solid waste, and tires located above grade at a site:
Provided, That remediation does not include clean up of hazardous waste.
(10) (14) "Secretary" means the Secretary of the Department of
Environmental Protection.
(15) "Video display device" means an electronic device with an
output surface that displays or is capable of displaying moving
graphical images or visual representations of image sequences or
pictures that show a number of quickly changing images on a screen
to create the illusion of motion. Video display device includes a
device that is an integral part of the display and cannot easily be
removed from the display by the consumer and that produces the
moving image on the screen. A "video display device" may use a
cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma,
digital light processing, other image-projection technology or
imaging display technologies.
(11) (16) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use because of wear, damage or defect. A tire is no
longer considered to be suitable for its original intended purpose
when it fails to meet the minimum requirements to pass a West
Virginia motor vehicle safety inspection. Used tires located at a
commercial recapping facility or tire dealer for the purpose of
being reused or recapped are not waste tires.
(12) (17) "Waste tire monofill or monofill" means an approved
solid waste facility where no solid waste except waste tires are
placed for the purpose of long term storage for eventual retrieval
for marketing purposes.
(13) (18) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling and/or marketing.
(14) (19) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§22-15A-5. Litter pickup and removal; education; government
recycling responsibilities; monitoring and
evaluation; study commission; repeal; report to
Legislature.
(a)
Litter pickup and removal. --
(1) Each county commission and the Regional Jail Authority may
establish a jail or prison inmate program including a regular
litter pickup work regimen under proper supervision pursuant to
section four, article fifteen, chapter seventeen of this code. Funding for these programs shall be from the Litter Control Fund.
Funding requirements may include salaries for additional personnel
needed for the program. The program may include the cooperative
help of the Division of Highways or any other voluntary state,
local, private, civic or public agency for personnel, equipment or
materials in establishing a county or regionwide, continual program
of inmate litter pickup. Upon final approval of the projected cost
of the program for a given fiscal year, the secretary shall
disburse the approved amount to the county or Regional Jail
Authority. The funds will be used by the Authority to reimburse
the county commission or Regional Jail Authority for its expenses
related to the program and to pay other costs related to the use of
inmates for litter pickup. Nothing contained herein shall preclude
a county or counties from expending whatever additional funds its
commission or commissions may deem appropriate from any other
revenue source in furtherance of said program.
(2) All persons involved with litter pickup may separate
identifiable recyclable materials from other litter collected. The
funds resulting from the sale of those recyclable materials shall
be returned to the Litter Control Fund.
(3) The county or regional solid waste authority may also
contract with local governments, civic organizations or chief
correctional officers in any county to implement litter pickup and
removal pursuant to this act when the state offender workforce is not available. In such cases, the contract provisions shall
require that identifiable recyclable materials shall be separated
from other litter collected, with resulting funds returned to the
Litter Control Fund. Priority shall be given to those contracts
that maximize the use of community service hours by inmates and
youth employment programs.
(b)
Education. --
(1) The Department of Education in cooperation with the
Department of Environmental Protection shall distribute educational
materials to the schools based on the goals of litter clean up and
proper solid waste disposal, the rationale for the goals and how
primary and secondary school students can contribute to the
achievement of the goals. The Department of Education shall
further incorporate this information into the curriculum of the
public school system as appropriate.
(2) The Division of Highways and local governments shall
conduct public awareness programs to notify the public of the
provisions of this law and how they can participate, to inform them
as to the rationale behind the provisions of this law, to advise
them of other avenues for achievement of the noted goals and to
encourage their participation.
(3) The Department of Environmental Protection and the Solid
Waste Management Board shall provide technical assistance to local
governments in the implementation of this law.
(c)
Government recycling responsibilities. --
(1) All state agencies and regional planning councils may
establish and implement aluminum container, glass and paper
recycling programs at their public facilities. To the extent
practicable, programs for other metals, plastics,
covered
electronic devices, rubber and other recyclable materials may be
established and implemented. The moneys collected from the sale of
such materials shall be deposited and accounted for in the Litter
Control Fund pursuant to the authority of section four of this
article.
(2) To further promote recycling and reduction of the waste
stream, county and municipal governments shall consider the
establishment of recycling programs as provided in this section in
the operation of their facilities and shall evaluate the
cost-effectiveness of:
(A) Procedures that separate identifiable recyclable materials
from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at
all landfills and other interim solid waste collection sites and
arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to
participate;
(iii) The use of rate differentials at landfills to facilitate public participation in on-site recycling programs.
(3) In preparing the recycling plan as required under this
subsection the county may address methods for the separate
collection and recycling of covered electronic devices, including
efforts by the county with manufacturers, recyclers, retailers or
other local governments for the collection and recycling of covered
electronic devices.
(d) Each affected agency and local government shall monitor
and evaluate the programs implemented pursuant to this law.
(e) The secretary shall submit a report to the Speaker of the
House and the President of the Senate not later than the first day
of March, two thousand six, and every five years thereafter
regarding the effectiveness of the programs authorized by this law.
§22-15A-24. Rules.
The department shall recommend rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code necessary to implement the covered
electronic device takeback program of sections twenty-four-a
through twenty-eight, by the first day of January, two thousand
nine.
§22-15A-24a. Covered manufacturers; effective date.
(a) This section, along with sections twenty-five, twenty-six
and twenty-seven apply to a manufacturer that manufactured an
average of more than one thousand covered electronic devices per year in the immediately preceding three-year period.
(b) On or after the first day of July, two thousand nine a
manufacturer may not sell or offer for sale to any person in the
state a new covered electronic device unless:
(1) The covered electronic device is labeled with the name of
the manufacturer or the manufacturer's brand label; and
(2) The manufacturer has registered with and submitted a
registration fee to the department as provided in section
twenty-five.
(c) If a manufacturer is subject to the requirements of
section twenty-four-a and twenty-five, a retailer may not sell or
offer for sale to any person in the state a new covered electronic
device manufactured by the manufacturer, unless the manufacturer
has complied with the requirements of this section and section
twenty-five of this article.
§22-15A-25. Covered electronic device takeback program;
manufacturer registration; and cost of
registration.
(a) A covered electronic device manufacturer's registration
shall include:
(1) The brand names under which the manufacturer sells or
offers for sale covered electronic devices in the state;
(2) Whether the manufacturer has implemented a covered
electronic device takeback program;
(3) If the manufacturer has implemented a covered electronic
device takeback program:
(A) A toll-free number or website address that provides
information about the takeback program, including a detailed
description of how a person may return a covered electronic device
for recycling, refurbishing or reuse; and
(B) One year after the implementation of the program and each
year thereafter, a report on the implementation of the program
during the prior year, including:
(i) The total weight of covered electronic devices received by
the program from West Virginia during the prior year;
(ii) The total number of covered electronic devices from West
Virginia recycled, refurbished and reused during the prior year;
and
(iii) The processes and methods used to recycle, refurbish or
reuse the covered electronic devices received from West Virginia;
and
(D) Any additional information required by the department in
rule.
(b) The registration shall:
(1) Be submitted to the department by the first day of January
each year; and
(2) If the manufacturer has implemented a covered electronic
device takeback program, be updated prior to any significant change in the program.
(c) The covered electronic device manufacturer registration
cost is:
(1) Ten thousand dollars for the initial registration by the
manufacturer unless it has already implemented a takeback program.
If a manufacturer presently has a takeback program the initial
registration fee is three thousand dollars;
(2)(A) Five thousand dollars for each subsequent annual
registration by a manufacturer that did not have an implemented
covered electronic device takeback program in the prior year; or
(B) Five hundred for each subsequent annual registration by a
manufacturer that had an implemented covered electronic device
takeback program in the prior year;
(3) Submitted to the department by the first day of January of
each year; and
(4) Paid into a new special fund to be called the "Covered
Electronic Devices Takeback Fund," which is to be administered by
the department.
(d)(1) The department shall:
(A) Review the registration submitted under this section; and
(B) If the registration does not meet the requirements of this
section and the rules adopted by the department under this article,
notify the manufacturer of the insufficiency.
(2) Within sixty days after receipt of a notice of insufficiency, the manufacturer shall submit a revised registration
that addresses the insufficiencies noted by the department.
(e)(1) The department shall maintain a list of registered
covered electronic device manufacturers.
(2) The department shall publish the list of registered
covered electronic device manufacturers online, which will provide
retailers easy access to the manufacturers, retailers may sell in
its stores.
§22-15A-26. Civil actions and fines against manufacturer.
(a)
Civil action. -- In addition to being subject to an
injunctive action under this article, a manufacturer who violates
any provision of section twenty-four-a, twenty-five or twenty-seven
of this article or of any rule or permit adopted or issued under
section twenty-four-a, twenty-five or twenty-seven of this article
is liable to a civil penalty not to exceed ten thousand dollars to
be collected in a civil action brought by the department. Each day
a violation occurs is a separate violation under section
twenty-four-a, twenty-five or twenty-seven of this article.
(b)
Administrative action. -- (1) In addition to any other
remedies avaiable at law or in equity and after an opportunity for
a hearing which may be waived in writing by the person accused of
a violation, the department may impose a penalty for violation of
any provision of section twenty-four-a, twenty-five or twenty-seven
of this article or any rule, order or permit adopted or issued under section twenty-four-a, twenty-five or twenty-seven of this
article.
(2) The penalty imposed on a person under this subsection
shall be:
(A) Up to one thousand dollars for each violation, but not
exceeding fifty thousand dollars; and
(B) Assessed with consideration given to:
(i) The willfulness of the violation, the extent to which the
existence of the violation was known to but uncorrected by the
violator and the extent to which the violator exercised reasonable
care;
(ii) The available technology and economic reasonableness of
controlling, reducing, or eliminating the violation;
(iii) The degree of hazard posed by the particular pollutant
or pollutants involved; and
(iv) The extent to which the current violation is part of a
recurrent pattern of the same or similar type of violation
committed by the violator.
(3) Each day a violation occurs is a separate violation under
this subsection.
(4) Any penalty imposed under this subsection is payable to
the State of West Virginia and collectible in any manner provided
at law for the collection of debts.
(5) If any person who is liable to pay a penalty imposed under this subsection fails to pay it after demand, the amount, together
with interest and any costs that may accrue, shall be:
(A) A lien in favor of this state on any property, real or
personal, of the person; and
(B) Recorded in the office of the clerk of court for the
county in which the property is located.
(6) Any penalty collected under this section shall be placed
in the Covered Electronic Devices Takeback Fund, to be used for
monitoring and surveillance by the department to assure and
maintain an adequate record of any violations and be available for
grants to counties or municipalities that have addressed methods
for the separate collection and recycling of covered electronic
devices in accordance with this article.
§22-15A-27. Retailer penalties.
(a) In addition to any other penalty provided by law under
this article, the Secretary of the Department of Environmental
Protection may assess against any retailer that violates section
twenty-four-a of this article, a penalty up to five hundred dollars
for each violation but not exceeding five thousand total for the
year.
(b) A fine under subsection (a) of this section may be
assessed only after the retailer that committed the violation has
been issued three warnings from the department regarding the
violation.
(c) Each day on which a violation occurs or continues is a
separate violation under this section.
(d) All penalties assessed under this section shall be
deposited into the Covered Electronic Devices Takeback Fund.
NOTE: The purpose of this bill is to establish a convenient
and environmentally sound recovery program for the collection,
recycling and reuse of covered electronic devices that have reached
the end of their useful lives, maximize recovery of resources
contained in discarded covered electronic devices and prevent
improper disposal of materials in electronic devices in state
landfills.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§22-15A-24, §22-15A-24a, §22-15A-25, §22-15A-26 and §22-15A-27
are new; therefore, strike-throughs and underscoring have been
omitted.
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