Introduced by Representatives Deen of Westminster, Hosford of Waitsfield, Klein of East Montpelier, Maier of Middlebury, Bohi of Hartford, Frank of Underhill, Green of Berlin, Marek of Newfane and Sweaney of Windsor
Subject: Conservation; solid waste; electronics equipment waste
Statement of purpose: This bill proposes to require producers of certain electronics products that are sold at retail in Vermont to develop and implement financial responsibility plans for collecting and reusing products they sell in the state. The bill proposes that producers failing to meet the requirements of the law will be prohibited from selling their electronics products at retail in the state until they come into compliance. It proposes to ban the incineration and landfilling of the products in question. It proposes to require producers to institute less harmful alternatives for specified components by January 1, 2006. It proposes to require labeling, consumer notification, and public education about how to manage the products, and to require the establishment of a specified number of collection points per every 10,000 persons in the state. It also proposes to establish requirements with respect to state procurement, monitoring, and reporting, and it creates a private right of action to enforce the law.
AN ACT RELATING TO THE MANAGEMENT OF ELECTRONICS EQUIPMENT WASTE
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 10 V.S.A. § 6621f is added to read:
§ 6621f. PRODUCER-FINANCED MANAGEMENT OF ELECTRONICS
(a) Legislative findings. The general assembly finds the following:
(1) Due to the increased sales and shorter lifespan of personal computers and consumer electronics, and the absence of a recycling infrastructure to process obsolete and discarded equipment, substantial quantities of obsolete and discarded equipment are stockpiled in homes, warehouses, buildings, and offices in Vermont and across the United States.
(2) These products contain lead, mercury, chromium, cadmium, polyvinylchloride, mixed plastics, beryllium, brominated flame retardants, and other hazardous substances, and therefore pose a threat to human health and the environment if improperly disposed of at the end of their useful life.
(3) The National Safety Council estimates that between 315 million and 500 million computers that have or will become obsolete within the next five years contain between 1.2 billion pounds and two billion pounds of lead; lead exposure causes brain damage in children and has been banned from consumer products.
(4) Mercury is toxic in low doses, causes brain and kidney damage, and can be passed on through breast milk. Beryllium has recently been classified as a human carcinogen; brominated flame retardants may seriously affect hormonal functions critical for normal development.
(5) At present, brand owners, producers, and original equipment manufacturers bear none of the burden or responsibility for safely managing discarded electronic equipment at the end of its useful life, burdening taxpayers, local governments, and end users with these costs and responsibilities.
(6) The full extent of the public health threat and environmental contamination resulting from electronics equipment entering the waste stream through disposal into landfills or incinerators is unknown, but it is estimated that 40 percent of the heavy metals in municipal landfills comes from electronic discards.
(7) Less than ten percent of discarded computers is currently recycled, with the remainder stockpiled or improperly disposed of, while large quantities of the toxic equipment intended for recycling are shipped overseas for dismantling under unacceptable conditions, and many domestic processors cannot attest to the ultimate disposition of the materials collected.
(8) Under federal law, cathode ray tubes (CRTs) found in computer monitors and televisions discarded by institutions and larger businesses (but not from households) are prohibited from disposal through the municipal waste stream.
(9) In the European Union, brand owners, producers, and original equipment manufacturers bear financial responsibility for the environmentally superior management of discarded and obsolete electronics equipment.
(10) The European Union has mandated that brand owners, producers, and original equipment manufacturers must begin a sequenced phase-out of the most hazardous materials from their products in order to eliminate the public health and environmental threats posed at the end of their products’ life.
(b) Definitions. As used in this section, the following terms shall have the following meanings:
(1) “Electronics equipment” means equipment that is dependent on electric currents or electromagnetic fields in order to work properly and contains one or more printed circuit boards. This definition includes: computer equipment (such as CRTs, display monitors, central processing units, keyboards, printers, and peripherals); television monitors and displays; telecommunications equipment (such as telephones, cell phones, facsimile machines, and answering machines); video and stereo equipment; and small electronics devices and appliances; as well as toys, games, and educational devices containing one or more printed circuit boards.
(2) “Electronics waste” means electronics equipment which has been discarded, has become obsolete, has ceased to function, is no longer wanted by its owner, or for any other reason enters the collection, recovery, treatment, processing, and recycling system.
(3) “Historic waste” is electronics equipment which became electronics waste prior to the effective date of this section, the producer of which is still in business.
(4) “Orphan waste” is electronics waste manufactured by or bearing the brand name of a company which no longer is in business as of the effective dates of this section.
(5) “Plan” means the plan for producer-financed collection, recovery, and recycling of electronics waste as provided for in subsection (c) of this section.
(6) “Producer” means any person, irrespective of the sales techniques or channels used to sell products at retail in the state, including means of distance communication, that:
(A) manufactures and sells electronics equipment under its own brand;
(B) resells under its own brand equipment produced by other suppliers, a reseller not being regarded as the producer if the brand of the actual manufacturer appears on the equipment; or
(C) imports electronics equipment for first retail sale in this state.
(7) “Recycling” means the reprocessing of the waste materials for the original purpose or for other purposes but excluding energy recovery or energy generation by means of combusting electronics waste with or without other waste.
(8) “Reuse” means any operation by which electronics waste or components of that waste are used for the same purpose for which they were conceived, including the continued use of the equipment or components thereof which are returned to collection points, recyclers, or producers.
(c) Financial responsibility of producers.
(1) Within 24 months following passage of this section, brand owners, producers, and original equipment manufacturers of electronics equipment as defined in this section shall be responsible for implementing a program for financing the environmentally sound collection, treatment, recovery, and final disposition of discarded and obsolete electronics equipment, including orphan and historic waste.
(2) Producers are responsible for financing the environmentally sound management of the waste from its own products, but may execute this obligation through collective or individual financing schemes.
(3) The responsibility for financing the management of orphan and historic waste equipment shall be shared proportionally to each producer’s respective share of the market, by product type, at the time waste management costs are incurred. This proportional responsibility for orphan and historic waste may be adjusted on an annual basis by the secretary.
(4) Consumers and equipment end users may be responsible for delivering electronics waste to collection facilities or retail outlets, as may be provided for in the producer’s program plan, although producers are encouraged to include direct collection or reverse delivery systems in the recovery of the waste.
(5) Consumers must be able to return electronics waste free of charge.
(6) Producers failing to implement a financial responsibility program within the time frame provided for in this section shall be prohibited from selling electronics equipment at retail in this state until they are in compliance with this section.
(d) Submission and approval of a financial responsibility plan.
(1) Within six months following the passage of this section, producers of electronics equipment sold in this state shall submit to the secretary for approval a program plan designed to meet their responsibilities under this section. In order to be approved, a plan must at a minimum provide for the following:
(A) Financing the collection, treatment, recovery, reuse, and disposition of all electronics equipment sold by that producer at retail in Vermont.
(B) Financing that producer’s share of orphan and historic waste in Vermont.
(C) Meeting the product recovery and materials reuse and recycling rates as provided for in this section.
(D) Meeting the labeling, consumer notification, and public education requirements of this section that are necessary to ensure the protection of electronics users, processors, and recyclers, and ensure participation in the producer’s product recovery program.
(E) Documenting the willingness of all necessary parties to implement the proposed collection, handling, treatment, recovery, reuse, and recycling system, and the assurance that all take-back and materials management systems will comply with all applicable local and state laws and rules in Vermont.
(F) Describing the performance measures to be used and reported by the producer to demonstrate that the collection system is meeting recovery and recycling rates, as well as other measures of the program’s effectiveness.
(G) Describing of the alternative or additional actions that will be implemented by the producer to improve collection, recovery, and recycling in the event that program targets are not met.
(2) Within 12 months following passage of this section or upon approval of the producer’s program plan, whichever is sooner, producers of electronics equipment sold at retail in Vermont shall provide to the secretary a financial guarantee deemed adequate by the secretary to ensure that no costs for program evaluation, enforcement, or the management of orphan and historic waste are borne by taxpayers.
(3) Any producer which fails to meet any of the requirements of this section within the time allotted in this section shall be prohibited from selling electronics equipment at retail to any agency or unit of the state until it is in compliance with the requirements of this section.
(e) Ban on incineration and landfilling of electronics equipment.
(1) Electronics equipment and electronics waste covered by this section may not be disposed of in landfills, incinerators, cement kilns, or other forms of energy recovery or energy generation dependent on combustion of electronics waste.
(2) This ban on disposal shall apply to whole units of electronics waste as well as to the constituent subunits and materials from which the units are made.
(f) Restrictions on hazardous materials. By January 1, 2006, producers selling electronics equipment at retail in this state must institute less harmful alternatives for those parts and components of electronics equipment that use lead, mercury, cadmium, hexavalent chromium, brominated flame retardants, and polyvinylchloride. If a producer provides sufficient demonstration to the secretary that it is technically impossible to find an alternative, a limited term exemption may be issued. An exemption can be rescinded once it becomes possible to eliminate the substance. If the exemption is granted, the secretary must assign a limited amount of time of no more than five years before the exemption expires to ensure that producers are investing in research and development to identify an appropriate alternative.
(g) Labeling, consumer notification, and public education.
(1) Within 12 months of the effective date of this section, electronics equipment sold at retail in Vermont must be clearly marked or labeled, or accompanied by informational materials providing consumers and end users with information relating to the following:
(A) The hazardous materials contained in electronics equipment and which parts of the equipment contain the particular substances.
(B) The requirements not to dispose of electronics equipment in landfills, in incinerators, or by any other means not approved as part of the producer’s financial responsibility program plan.
(C) A toll-free telephone number and website where consumers can obtain information and instructions about the safe disposition of the electronics product through the producer’s financial responsibility program plan.
(2) As part of its approved program plan, a producer selling electronics equipment at retail in Vermont must take appropriate steps to ensure that consumers and users of electronics equipment understand:
(A) The prohibition on disposal of electronics waste by any means not included as part of the producer’s approved program plan.
(B) The electronics waste return and collection systems available to them.
(C) The potential effects on the environment and human health as a result of the presence of hazardous substances contained in electronics equipment and the dangers of improper disposal.
(D) The consumers’ and users’ roles in contributing to the reuse, recycling, and other forms of electronics waste recovery.
(3) Within 24 months following implementation of the producer responsibility program, each producer must demonstrate by means of independent polling of the public that it has achieved a level of 85 percent public awareness of the program for each of its covered product categories. Producers may collectively undertake such a demonstration of public awareness so long as the polling instrument is designed to identify public awareness of a majority of producers’ programs or a majority of the electronics equipment types covered by this section. The design, protocols, and implementation plan for the opinion polling required in this section must be approved by the secretary.
(4) As part of an approved program plan and in order to facilitate the correct and environmentally sound treatment of electronics waste, producers must demonstrate adequate measures to provide information to recyclers and processors for their electronics equipment. Within one year after new electronics equipment enters the market, producers shall provide new information to recyclers and processors regarding the end-of-life treatment of the new product relating to disassembly, material content, and safety concerns.
(h) Environmental performance requirements.
(1) Producers selling electronics products at retail in Vermont under an approved plan must provide:
(A) Within two years of financial responsibility, three collection and recovery points per 10,000 persons in different Vermont counties or regional planning commission regions.
(B) Within five years of financial responsibility, six collection and recovery points per 10,000 persons in different Vermont counties or regional planning commission regions.
(2) All persons collecting, recovering, and recycling electronics waste as part of an approved producer-financed plan must protect the health and safety of their workers and contractors by:
(A) Providing clear evidence of compliance with all state and federal occupational safety and health laws and rules.
(B) Performing routine industrial hygiene monitoring and quarterly reporting for all facilities, including monitoring for airborne lead and bromine compounds.
(C) Performing routine human health monitoring and quarterly reporting (in accordance with all applicable privacy protections) for all workers and contractors, including blood testing for lead exposure and bromine compounds.
(3) No plan for producer-financed collection, recovery, and recycling of electronics waste may include reliance on prison labor, unless all incarcerated workers involved in the processing and recycling of electronics waste are afforded the protections of state occupational safety and health laws and regulations, as well as the additional worker safety and health protections required by this section.
(4) In order to be approved by the secretary, a producer’s program plan for financing the collection, recovery, treatment, processing, and recycling of electronics waste must forbid the export of electronics waste to non-OECD (Office for Economic Cooperation and Development) countries. As part of their annual program reports, producers must document that the program has not resulted in the overseas export of electronics waste to any non-OECD countries.
(i) State procurement and purchasing. Within six months following passage of this section and until the effective date of the producer responsibility requirements of this section, the state of Vermont shall establish purchasing and procurement policies requiring vendors of electronics equipment sold to the state to take back electronics waste when the equipment becomes obsolete, is discarded, or is otherwise taken out of service. State purchasing and procurement policies shall also establish a preference for electronics equipment which meets specified environmental performance standards relating to the reduction or elimination of hazardous materials.
(j) Reporting, monitoring, compliance, and penalties.
(1) Program plans required under this section shall be submitted to, reviewed by, and approved by the agency of natural resources. Plans will be evaluated based upon their sufficiency in light of all the required elements, and the secretary shall develop a means for scoring initial submissions and providing feedback to producers for integration into their final plans.
(2) Reports detailing performance of the producer’s financial responsibility program and compliance with all the requirements set forth in this section must be submitted annually to the secretary. All such reports are to be reviewed within six months of their submission and any notices of deficiency or noncompliance provided by the secretary to producers by the end of the following quarter.
(3) Annual reports required under this section and all other reports outlining the results of the producer’s program for the current year and two prior years must be made available to the general public through the internet and upon request.
(4) The state may establish a multistakeholder oversight and advisory committee to oversee program plan implementation, review annual reports, and recommend additions, modifications, or deletions to the requirements of this section.
(k) Private right of enforcement.
(1) Each person, including future generations, has the right to a healthful environment and protection from contamination resulting from disposal of electronics waste. Each person may enforce this right as well as enforce the provisions and requirements of this section against any party, government, or private entity through appropriate legal proceedings, including declaratory and equitable relief, civil penalties, and restoration damages, to protect the public health and environment of this state from pollution, impairment, or destruction resulting from electronics waste.
(2) “Environment” includes all the state’s natural resources, including land, air, water resources, and plant and animal species, and the habitat upon which they depend.
(3) A court may award to the plaintiffs, should they prevail, the full costs of litigation, including but not limited to reasonable expert witnesses and attorney’s fees.
(4) This section is supplementary to existing rights and procedures provided by law.
(l) Presumption of liability. Contamination of landfills with heavy metals, including lead, mercury, beryllium, and chromium, as well as contamination of the soil and groundwater surrounding landfills in Vermont, is presumed to result, unless proven otherwise, from the growing concentration of discarded electronics equipment in the municipal waste stream.
The Vermont General Assembly
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