SENATE 3rd Reading Unamended May 10, 2011 SENATE Amended 2nd Reading May 9, 2011First Regular Session Sixty-eighth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 11-0882.02 Thomas Morris SENATE BILL 11-269 SENATE SPONSORSHIP Schwartz, HOUSE SPONSORSHIP Kerr A. and Miklosi, Senate Committees House Committees Agriculture, Natural Resources, and Energy Finance Appropriations A BILL FOR AN ACT Concerning the recycling of electronic devices, and, in connection therewith, requiring the processing facilities of processors of electronic devices to be certified, requiring processors of electronic devices to be registered, and making an appropriation. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill creates the "Electronics Recycling Act". Processors of eligible electronic devices must be certified, pay the department of public health and environment an annual fee, file annual reports, and comply with processing standards established by the solid and hazardous waste commission. Collectors of eligible electronic devices must be registered and comply with processing standards established by the commission. The commission will adopt rules. The department has enforcement authority. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Article 17 of title 25, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PART to read: PART 3 ELECTRONIC DEVICE RECYCLING 25-17-301. Short title. This part 3 shall be known and may be cited as the "Electronics Recycling Act". 25-17-302. Legislative declaration. (1) The general assembly hereby finds that consumer electronic devices and other consumer products may contain hazardous materials as well as components and materials that are valued as commodities. It is important to create a viable means of recycling these materials for all Colorado citizens. This act will help Colorado maximize the extraction of valuable resources from the electronic waste stream, thus creating jobs in Colorado; reduce the threat to our environment posed by burying or incinerating harmful materials; and help prevent the export of toxic materials to countries with insufficient environmental controls in place to recycle them safely. (2) Further, the general assembly's intent in enacting this part 3 is to foster economic growth within this state by creating opportunities for local companies to collect and process materials covered by this part 3. Recycling, reuse, and reconditioning of old electronic devices captures value present in the devices to the benefit of Colorado's citizens and environment by keeping both toxic and valuable materials out of landfills, thus creating jobs and strengthening local economies. (3) The general assembly finds that engaging all stakeholders as part of the solution results in a system of recycling electronic devices that supports the creation of local jobs and reduces toxic materials in our waste stream. (4) The general assembly declares that the purpose of this part 3 is to: (a) Ensure that consumer electronics products are responsibly reused, reconditioned, or recycled to promote resource conservation through the development of an effective and efficient system for collecting and recycling such products; (b) Require processors to become registered, to submit data, and to comply with minimum standards; and (c) Provide information to consumers for making informed decisions as well as assuring consumers that their recycled electronic devices are recycled responsibly. 25-17-303. Definitions. As used in this part 3, unless the context otherwise requires: (1) "Collect" or "collection" means the recovery, after manufacture and distribution or initial sale, of an eligible electronic device. The terms include collection through a mail-back program, collection site, collection facility, collection event, or curbside or home collection. (2) "Collector" means a person that receives, collects, handles, brokers, or resells an eligible electronic device and arranges for delivery of the device to a processor or other entity for recycling, reuse, or resale. (3) "Commission" means the solid and hazardous waste commission created in section 25-15-302. (4) "Consumer" means a natural person who has purchased an eligible electronic device primarily for personal or home business use. (5) "Department" means the department of public health and environment. (6) (a) "Eligible electronic device" means a device that is marketed by a manufacturer for use by a consumer and that is: (I) A computer, peripheral, printer, facsimile machine, digital video disc player, video cassette recorder, or other electronic device specified by rule promulgated by the commission; or (II) A video display device or computer monitor, including a laptop computer, television, telephone, tablet computer, electronic book, notebook computer, or other device determined by the commission by rule, that contains a cathode ray tube or flat panel screen with a screen size that is greater than four inches, measured diagonally. (b) "Eligible electronic device" does not include: (I) A device that is part of a motor vehicle or any component part of a motor vehicle assembled by, or for, a vehicle manufacturer or franchised motor vehicle dealer, including replacement parts for use in a motor vehicle; (II) A device, including a touch-screen display, that is functionally or physically part of or connected to a system or equipment designed and intended for use in any of the following settings, including diagnostic, monitoring, or control equipment: (A) Industrial; (B) Commercial, including retail; (C) Library checkout; (D) Traffic control; (E) Security, sensing, monitoring, or counterterrorism; (F) Border control; (G) Medical; or (H) Governmental or research and development; (III) A device that is contained within any of the following: (A) A clothes washer or dryer; (B) A refrigerator or refrigerator and freezer; (C) A microwave oven or conventional oven or range; (D) A dishwasher; or (E) A room air conditioner, dehumidifier, or air purifier; or (IV) Either of the following that does not contain a video display area greater than four inches, measured diagonally: (A) A telephone; or (B) A device capable of using commercial mobile radio service as defined in 47 CFR 20.3. (7) "Materials of concern" means any of the following: (a) Any device, including a fluorescent light or tube, that contains mercury or polychlorinated biphenyls; (b) A battery; (c) A cathode ray tube or leaded glass; and (d) A whole or shredded circuit board. (8) "Peripheral" means a keyboard, mouse, or any other device that is sold exclusively for external use with a computer and provides input or output into or from a computer. (9) "Person" means an individual, business entity, partnership, limited liability company, corporation, not-for-profit corporation, association, governmental entity, public benefit corporation, or public authority. (10) "Processing for reuse" means any method, technique, or process by which eligible electronic devices that would otherwise be disposed of or discarded are instead separated, processed, and returned to their original intended purposes or to other useful purposes as eligible electronic devices. (11) "Processor" means a person who processes more than one hundred eligible electronic devices in Colorado for recycling, reuse, or resale, but does not include a person who processes for reuse if no materials of concern are generated for disposal or telecommunications carriers, telecommunications manufacturers, or commercial mobile service providers with an existing recycling program. (12) "Recycle" or "recycling" means processing, including disassembling, dismantling, shredding, and smelting, an eligible electronic device or its components to recycle a useable component, commodity, or product, including processing for reuse. "Recycling", with respect to eligible electronic devices, does not include any process defined as incineration under applicable laws or rules. (13) (a) "Video display device" means: (I) 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; and (II) An electronic device with a viewable screen of four inches or larger, measured diagonally, that contains a tuner that locks on to a selected carrier frequency or cable signal and is capable of receiving and displaying television or video programming via broadcast, cable, or satellite. (b) "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, liquid crystal display, gas plasma, digital light processing, or other image-projection technology. 25-17-304. Applicability - liability. (1) The collection and recycling provisions of this part 3 apply to eligible electronic devices used and recycled by Colorado consumers and the state. (2) Nothing in this part 3 exempts any person from liability he or she would otherwise have under applicable law. 25-17-305. Processors - registration - certification - standards - fee - reports - immunity. (1) Registration. A person shall not act as a processor on or after October 1, 2012, unless the person has registered with the department as a processor. The department shall maintain a publicly available list of registered processors. The department shall use its best efforts to establish an on-line registration process. (2) Certification. (a) (I) By January 1, 2013, each facility of a processor that exists on the effective date of this section and is used to process eligible electronic devices must be certified pursuant to this subsection (2). A facility of a processor that begins processing after the effective date of this section has eighteen months after beginning processing to comply with this subsection (2). (II) If a processor processes materials of concern, the processor's facility at which the materials are processed must either be certified to process the materials or the processor shall contract for the processing with a processor whose facility is so certified. (b) A processor that handles more than one hundred thousand pounds of eligible electronic devices annually shall submit to the department proof of certification to R2 or e-Stewards recycling standards by an independent third-party certification entity. If a processor submits such proof to the department's satisfaction, the department shall treat the processor as being certified pursuant to this section and the department shall not perform additional inspections of the processor's facilities pertaining to this section. (c) A processor that handles one hundred thousand pounds or less of eligible electronic devices annually shall submit to the department proof of certification as required by this paragraph (c). The commission shall determine, in accordance with rules promulgated pursuant to section 25-17-307 (2), whether processors that handle one hundred thousand pounds or less of eligible electronic devices annually must submit to the department proof of certification to R2 or e-Stewards recycling standards by an independent third-party certification entity through a process that is listed in rules promulgated pursuant to section 25-17-307 (2) or proof of certification by the department. If the commission elects to require proof of certification by the department, the rules must establish a certification program that includes, at a minimum: (I) Standards that require that any exports of eligible electronic devices with materials of concern do not violate laws in importing, exporting, and transit countries through final disposition; (II) A prohibition on the use of prison labor; (III) On-site hazard and worker protections and safety training; (IV) Pollution insurance coverage; and (V) Specific requirements for documenting the chain of custody for materials of concern. (3) Fee. By October 1, 2012, each processor shall pay to the department an annual certification fee determined by rules promulgated pursuant to section 25-17-307 (2), in an amount that is sufficient to cover the department's direct administrative costs associated with implementing this part 3 with regard to processors. The department shall transmit the fees to the state treasurer, who shall deposit them in the electronics recycling cash fund created in section 25-17-307 (3). (4) Reports. Effective January 1, 2014, each processor shall annually report to the department by a date determined by rule promulgated pursuant to section 25-17-307 (2): (a) The total weight of eligible electronic devices that the processor processed or contracted for processing; (b) Where all materials of concern were shipped or otherwise disposed of; and (c) The name and address of each collector that delivered an eligible electronic device to the processor. (5) Immunity. A processor is not liable in any way for personal or financial data or other information that a consumer may leave on an eligible electronic device that is collected, processed, or recycled. 25-17-306. Collectors - delivery - immunity. (1) A collector shall deliver eligible electronic devices collected under this part 3 only to a processor whose facility is: (a) Certified under section 25-17-305; or (b) Located outside of Colorado and certified to R2 or e-Steward recycling standards and the processor is registered with the department. (2) A collector is not liable in any way for personal or financial data or other information that a consumer may leave on an eligible electronic device that is collected, processed, or recycled. 25-17-307. Department's and commission's duties - rules - fund - repeal. (1) Recycling rate. The department shall use the data submitted in the reports required pursuant to this part 3, and may include any other necessary and reliable data, to calculate an annual Colorado eligible electronic device processing rate. If the rate does not equal or exceed two pounds of eligible electronic devices processed per Colorado resident per year by July 1, 2014, the commission shall report to the general assembly on strategies to raise the rate to at least that level. (2) Rules. By July 1, 2012, the commission shall adopt such rules as are necessary to implement this part 3. (3) Cash fund. The department shall transmit all fees collected pursuant to this part 3 to the state treasurer, who shall credit them to the electronics recycling cash fund, which fund is hereby created in the state treasury. The state treasurer shall credit all interest derived from the investment of revenues in the fund to the fund. The department shall use the revenues credited to the fund to implement this part 3. (4) Enforcement. The department may adopt procedures for the ongoing evaluation of, and enforcement regarding, collectors' and processors' compliance with this part 3. The department may suspend or terminate the registration or certification of a processor that violates this part 3. The rules promulgated pursuant to subsection (2) of this section may provide graduated fines for a processor that violates the certification or registration requirements of this part 3, with second and subsequent violations being subject to a greater fine than an initial violation. The department shall transmit the fines to the state treasurer, who shall credit them to the general fund. (5) Reports. The department shall post on its web site and make available to the general public data reported by processors, including the recycling rate as calculated in subsection (1) of this section. The department shall maintain searchable lists on its web site of registered processors and certified processing facilities, and may coordinate with the governor's energy office created in section 24-38.5-101, C.R.S., in connection with the federal environmental protection agency's energy star program. The department shall report annually to the general assembly's committees that have jurisdiction over health. 25-17-308. State government compliance. Effective October 1, 2012, a state governmental agency shall use only a processor whose facility is certified and that is registered with the department for the recycling of its eligible electronic devices. SECTION 2. 25-16.5-106.5 (4), Colorado Revised Statutes, is amended to read: 25-16.5-106.5. Recycling resources economic opportunity fund - creation - repeal. (4) (a) Except as otherwise provided in this section, no moneys in the fund shall be used for the administration, implementation, or enforcement of any state law or rule. (b) The moneys in the fund shall be used for the start-up costs of the department and the solid and hazardous waste commission for the implementation of part 3 of article 17 of this title. This paragraph (b) is repealed, effective January 1, 2013. SECTION 3. Appropriation. (1) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the recycling resources economic opportunity fund created in section 25-16.5-106.5, Colorado Revised Statutes, not otherwise appropriated, to the department of public health and environment, for allocation to the hazardous materials and waste management division, for the fiscal year beginning July 1, 2011, the sum of thirty-four thousand four hundred twelve dollars ($34,412) cash funds and 0.3 FTE, or so much thereof as may be necessary, for the implementation of this act. (2) In addition to any other appropriation, there is hereby appropriated to the department of law, for the fiscal year beginning July 1, 2011, the sum of fourteen thousand six hundred seventy-four dollars ($14,674) and 0.1 FTE, or so much thereof as may be necessary, for the provision of legal services to the department of public health and environment related to the implementation of this act. Said sum shall be from reappropriated funds received from the department of public health and environment out of the appropriation made in subsection (1) of this section. SECTION 4. Act subject to petition - effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote thereon by the governor.