A1663

An Act concerning electronic waste management, supplementing P.L.1987, c.102 and amending P.L.1991, c.521.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) This act shall be known and may be cited as the "Electronic Waste Producer Responsibility Act."

2. (New section) The Legislature finds and declares that:

(1) Electronic waste contains lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances, and therefore poses a threat to human health and the environment if improperly disposed of at the end of their useful life;

(2) Less than ten percent of discarded electronic equipment are 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 horrific conditions and many domestic processors can not attest to the ultimate disposition of the materials collected;

(3) The full extent of the public health threat and environmental contamination resulting from electronic equipment entering the waste stream through disposal into solid waste landfills or incinerators is unknown, but is estimated that forty percent of the heavy metals in solid waste landfills come from electronic discards; and

(4) Currently, producers of electronic equipment bear none of the burden or responsibility for safely managing discarded electronic equipment at the end of its useful life, burdening State taxpayers, local governments and end users with these costs and responsibilities;

The Legislature therefore determines that it is in the public interest to shift the financial responsibility for the collection and recycling of discarded electronic waste from the taxpayers of New Jersey to the producers of electronic products, as hereinafter provided.

3. (New section) As used in this act:

"Business concern" means any corporation, association, firm, partnership, sole proprietorship, trust or other form of commercial organization;

"Commissioner" means the Commissioner of Environmental Protection;

"Department" means the Department of Environmental Protection;

"Electronic equipment" means equipment that is dependent on electric currents electromagnetic fields in order to work properly and contains one or more printed circuit boards, including, but not limited to, computer equipment including cathode ray tubes, display monitors, central processing units, keyboards, printers, computer peripherals; display monitors, and displays; telecommunication equipment including telephones, cellular telephones, facsimile machines, answering machines; small electronic devices and appliances containing one or more circuit boards; video and stereo equipment; televisions, toys, games and educational devices containing one or more printed circuit boards; and major household appliances containing one or more printed circuit boards;

"Electronic waste" means electronic equipment which has been discarded, become obsolete, ceased to function, is no longer wanted by its owner, or for any other reason has become available for recycling or disposal;

"Historic electronic waste" means electronic equipment which became electronic waste prior to the effective date of this act, the producer of which is a business concern still in business as of the effective date of this act;

"Orphan electronic waste" means electronic waste manufactured by or bearing the brand name of a business concern which is no longer in business as of the effective date of this act;

"Person" means any individual or business concern;

"Producer" means any person that, either as of the effective date of this act or thereafter, and regardless of the selling technique used, including by means of distance communication: (1) manufactures and sells electronic equipment under its own brand; (2) manufactures and sells electronic equipment without affixing a brand; (3) resells electronic equipment produced by other suppliers under its own brand and label; or (4) imports or exports electronic equipment into this State;

"Recycling" means any process by which materials which would otherwise become solid waste are collected, separated or processed and returned to the economic mainstream in the form of raw materials or products; "recycling" shall not include energy recovery or energy generation by means of incinerating electronic waste whether apart or in combination with other wastes;

"Resource recovery facility" means a solid waste facility constructed and operated for the incineration of solid waste for energy production and the recovery of metals and other materials for reuse;

"Re-use" means any operation by which electronic waste or components thereof are used for the same purpose for which they were conceived, including the continued use of the electronic equipment or components thereof which are returned to recyclers or producers;

"Sanitary landfill facility" means a solid waste facility at which solid waste is deposited on or in the land as fill for the purpose of permanent disposal or storage for a period exceeding six months, except that it shall not include any waste facility approved for disposal of hazardous waste.

4. (New section) a. Within 24 months of the effective date of this act, every producer of electronic equipment sold, offered for sale, or offered for promotional purposes in this State shall prepare and submit an electronic waste management plan, in writing, to the department for implementing a program for financing the environmentally-sound management of discarded and obsolete electronic equipment, including orphan electronic waste and historic electronic waste.

b. Every producer of electronic equipment sold, offered for sale, or offered for promotional purposes in this State shall be responsible for financing the environmentally-sound management of the electronic waste from its own products, but may execute this obligation through individual financing schemes or in cooperation with other producers.

c. Consumers and electronic equipment end users may be responsible for delivering electronic waste into the collection system, as may be provided for in the electronic waste management plan; provided, however, that a producer may include direct collection, reverse delivery systems, or reverse logistics systems in the electronic waste management plan.

d. Consumers shall not be charged to return electronic waste.

e. Any producer that fails to implement a financial responsibility program within the time provided for in this section shall be prohibited from selling its products in this State.

5. (New section) a. Within 6 months of the effective date of this act, every producer of electronic equipment sold, offered for sale, or offered for promotional purposes in this State shall prepare and submit an electronic waste management plan, in writing, to the department, which is designed to meet the producer's responsibilities under this act.

b. Each electronic waste management plan submitted by a producer shall provide, at a minimum, that the producer will participate in a national collection program for computer products and cathode ray tubes that will be fully implemented in this State no later than 6 months following the effective date of this act and that the collection program will be consistent with the requirements of this section and with the performance standards established by the department.

The department shall not approve an electronic waste management plan unless the department finds, in writing, that the plan, or the collection program, will provide:

(1) An effective system for financing the collection, treatment, recovery, re-use, and disposition of all electronic equipment sold, offered for sale, or offered for promotional purposes in this State by the producer;

(2) A plan for financing that producer's share of orphan electronic waste and historic electronic waste in this State, as determined by the department, as of the effective date of the producer's financial obligation;

(3) A plan for complying with the labeling, consumer notification, and public education requirements of this act that are necessary to ensure the protection of electronic equipment users, processors and recyclers, and ensure participation in the producer's plan;

(4) Documentation of the willingness of all necessary parties involved to implement the proposed plan, and assurances that the plan will comply with all applicable State and local environmental laws and regulations;

(5) A description of the performance measures to be used and reported by the producer to the department to demonstrate that the collection system is meeting the measures of the collection program's effectiveness required by the department; and

(6) A description of the alternative or additional actions that will be implemented by the producer to improve the collection, recovery and recycling systems in the event that the collection program targets are not met.

c. The department may, in accordance with a fee schedule adopted as a rule or regulation pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), establish and charge reasonable fees for any of the services to be performed in connection with this section, which shall cover the full costs incurred by the department for the review of proposed plans and for other costs incurred by the department for implementation of this section.

d. Upon a determination by the department that a producer is not meeting the performance standards established pursuant to this act relating to the reduction or elimination of hazardous materials and to the collection and recycling of electronic waste, the department may order the producer to take actions the department deems necessary to achieve the performance standards.

e. Any producer that fails to meet any of the requirements of this section within the time frame required shall be prohibited from selling electronic equipment in this State.

6. (New section) a. No person shall knowingly dispose of electronic waste, including the constituent sub-units or materials comprising the waste, including, but not limited to, lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances, as solid waste.

b. No solid waste collector registered pursuant to sections 4 and 5 of P.L.1970, c.39 (C.13:1E-4 and 13:1E-5) shall, at any time, knowingly collect electronic waste, including the constituent sub-units or materials comprising the waste, including, but not limited to, lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances, placed for collection and disposal as solid waste.

c. A solid waste collector may refuse to collect the contents of a solid waste container containing a visible quantity of electronic waste, including the constituent sub-units or materials comprising the waste, including, but not limited to, lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances.

d. No sanitary landfill facility or resource recovery facility in this State shall knowingly accept for disposal any truckload or roll-off container of solid waste containing a visible quantity of electronic waste, including the constituent sub-units or materials comprising the waste, including, but not limited to, lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances, at any time.

e. The owner or operator of a sanitary landfill facility or resource recovery facility may refuse to accept for disposal any truckload or roll-off container of solid waste containing a visible quantity of electronic waste, including the constituent sub-units or materials comprising the waste, including, but not limited to, lead, mercury, chromium, cadmium, polyvinyl chloride, mixed plastics, beryllium, brominated flame retardants and other hazardous substances.

7. (New section) a. Within 12 months of the effective date of this act, every producer of electronic equipment sold, offered for sale, or offered for promotional purposes in this State shall phase-out the use of lead, mercury, cadmium, hexavalent chromium, brominated flame retardants, and polyvinyl chloride and only offer for sale electronic equipment that contain less harmful alternatives.

b. If a producer provides sufficient demonstration to the department that it is technically impossible to use an alternative substance, a limited term exemption may be issued by the department. An exemption shall be rescinded by the department when the department determines, in writing, that a less harmful alternative for the substance can be used.

c. If the exemption is granted by the department, the department may assign a limited amount of time before the exemption expires to ensure that producers are investing in research and development to identify an appropriate less harmful alternative.

8. (New section) a. Within 12 months of the effective date of this act, all electronic equipment sold, offered for sale, or offered for promotional purposes in this State shall be clearly marked or labeled, or informational materials shall be provided with the new product, which provide consumers and end users with information relating to the following:

(1) the hazardous materials contained in the electronic equipment and the parts or sub-units which contain the particular substances;

(2) the requirements not to dispose of electronic equipment in sanitary landfill facilities, resource recovery facilities or any other means not approved as part of the producer's electronic waste management plan; and

(3) a toll-free phone number and Internet web site address where consumers can obtain information and instructions about the safe collection of the electronic product through the producer's electronic waste management plan.

b. As part of an approved electronic waste management plan, a producer shall implement a consumer education plan that will provide consumers with information about:

(1) the prohibition on disposal of electronic waste by any means not included as part of the producer' approved electronic waste management plan;

(2) the electronic waste return and collection systems available to them;

(3) the potential effects on the environment and human health as a result of the presence of hazardous substances contained in electronic equipment and the dangers of improper disposal; and

(4) the consumers' and electronic equipment users' roles in contributing to the re-use, recycling, and other forms of electronic waste recovery.

c. Within 24 months following implementation of the producer's electronic waste management plan, each producer must demonstrate to the department that it has achieved a level of 85% public awareness of the program for each of its covered product categories through independent public polling. Producers may collectively undertake such a demonstration of public awareness provided that the polling instrument is designed to identify public awareness of a majority of producers' programs or a majority of the electronic equipment types covered by this act. The design, protocols and implementation plan for the opinion polling required in this section must be approved by the department.

d. As part of an approved electronic waste management plan, and to facilitate the environmentally-sound management of electronic waste, every producer shall demonstrate to the department that adequate measures have been taken to provide information to recyclers concerning the producer's electronic equipment. No later than 12 months after new electronic equipment enters the market, producers shall provide new information to recyclers regarding the end-of-life treatment of the new product relating to disassembly, material content, and safety concerns.

9. (New section) a. All persons collecting, recovering, and recycling electronic waste as part of an approved electronic waste management plan shall protect the health and safety of their workers and contractors by:

(1) providing clear evidence to the department, in writing, of compliance with all State and federal occupational safety and health laws and regulations;

(2) performing routine industrial hygiene monitoring and quarterly reporting for all facilities for all hazardous materials of concern, including, but not limited to, monitoring for airborne lead and bromine, chlorine, and mercury compounds; and

(3) performing routine human health monitoring and quarterly reporting in accordance with all applicable privacy protections for all workers and contractors, including, but not limited to, blood testing for exposure to lead and bromine, chlorine, and mercury compounds.

b. No approved electronic waste management plan may include reliance on prison labor unless all incarcerated workers involved in the processing and recycling of electronic waste are provided with compensation equivalent to market rate wages for the work performed and are afforded the protections of federal and State occupational safety and health laws and regulations, as well as the additional worker safety and health protections required by this act.

10. (New section) a. No person who collects, recovers, treats, processes, or recycles electronic waste shall export electronic waste to any country where the export of hazardous waste is prohibited by the Basel Ban Amendment decision (Decision III/1) of the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and Their Disposal.

b. No later than January 1 of each year, every producer shall submit to the department written documentation, in a form and manner determined by the department, that the implementation of the producer's approved electronic waste management plan has not resulted in the overseas export of electronic waste to any country prohibited by this section.

11. (New section) a. The provisions of P.L.1971, c.257 (C.52:34-21 et seq.) or any rules and regulations adopted pursuant thereto to the contrary notwithstanding, no later than 6 months following the effective date of this act the Director of the Division of Purchase and Property in the Department of the Treasury shall establish purchasing and procurement policies requiring vendors of electronic equipment sold to the State to take back electronic waste when the equipment becomes obsolete, is discarded or is otherwise taken out of service.

b. Notwithstanding other policies or guidelines for the procurement of equipment, supplies and other products, the Director of the Division of Purchase and Property in the Department of the Treasury shall, upon consultation with the department, review and modify all bid and product specifications relating to the purchase of electronic equipment so that the specifications do not discriminate against, but encourage the maximum purchase of electronic equipment that meets the environmental performance standards established pursuant to this act relating to the reduction or elimination of hazardous materials.

12. (New section) a. The electronic waste management plans required pursuant to this act shall be submitted to, reviewed by, and approved or disapproved by the department on a timely basis. Plans shall be evaluated based upon their sufficiency in light of all the required elements and the department shall develop a means for scoring initial submission and providing feedback to producers for integration into their final approved electronic waste management plans.

b. Reports detailing performance of the producer's financial responsibility program and detailing compliance with all the requirements set forth herein shall be submitted to the department no later than January 1 of each year. All such reports shall be reviewed within 6 months of their submission and notices of deficiency or noncompliance provided by the department to producers by the end of the following quarter.

c. Annual reports required under this section, and all other reports outlining the results of the implementation of a producer's electronic waste management plan for the current year and 2 prior years, shall be made available to the general public through the Internet, or upon request, at cost.

13. (New section) Each person has the right to a healthful environment and protection from contamination resulting from the disposal of electronic waste. Any person may enforce this right, as well as enforce the provisions and requirements of this act, against any party, government or private, through appropriate legal proceedings, including declaratory and equitable relief, civil penalties, and restoration damages, to protect the public health and environment of the State of New Jersey from pollution, impairment or destruction resulting from the unlawful disposal of electronic waste. The court may award the full costs of litigation, including, but not limited to, reasonable expert witness and attorneys' fees, to the plaintiffs should they prevail. This provision is supplementary to existing rights and procedures provided by law.

14. (New section) The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations as are necessary to effectuate the purposes of this act.

15. (New section) It is the intent of the Legislature that, except as otherwise specifically provided in this act, in the event of any conflict or inconsistency in the provisions of this act and any other acts pertaining to matters herein established or provided for or in any rules and regulations adopted under this act and under any other acts, to the extent of such conflict or inconsistency, the provisions of this act and the rules and regulations adopted hereunder shall be enforced and the provisions of such other acts and rules and regulations adopted thereunder shall be of no effect.

16. (New section) The provisions of this act shall be severable, and if any section, part, phrase, or provision of this act or the application thereof to any person be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the section, part, phrase, provision, or application directly involved in the controversy in which the judgment shall have been rendered and it shall not affect or impair the validity of the remainder of this act or the application thereof to other persons.

17. (New section) The object, design and purpose of this act being the protection of the environment and public health through the proper and environmentally-sound management of electronic waste in this State, and the maintenance of a proper balance, as provided herein, between competing public and private interests, this act shall be liberally construed to give effect to the purposes thereof.

18. Section 16 of P.L.1991, c.521 (C.13:1E-99.74) is amended to read as follows:

16. Whenever a county prepares and adopts a district household hazardous waste management plan, the commissioner may require the plan to be adopted as an amendment to the district solid waste management plan required pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.). Any district household hazardous waste management plan adopted by a county shall be subject to approval by the department.

a. Each district household hazardous waste management plan, subject to approval by the department, shall identify the county strategy or strategies for the collection and disposal of household hazardous waste, which shall, at a minimum:

(1) provide for the collection and disposal of used mercuric oxide batteries, nickel-cadmium rechargeable batteries and sealed lead rechargeable batteries at least once every 90 days;

(2) be consistent with the provisions of the district recycling plan required pursuant to section 3 of P.L.1987, c.102 (C.13:1E-99.13);

(3) designate, if necessary, one or more collection sites within the county for household hazardous waste collection and disposal; and

(4) include such other information as may be prescribed in rules or regulations of the department.

b. A district household hazardous waste management plan, subject to approval by the department, may provide for the collection and disposal of any used dry cell batteries, cathode ray tubes from used computer monitors or television sets, or other forms of electronic waste. For the purposes of this section, "electronic equipment" means equipment that is dependent on electric currents electromagnetic fields in order to work properly and contains one or more printed circuit boards, including, but not limited to, computer equipment including cathode ray tubes, display monitors, central processing units, keyboards, printers, computer peripherals; display monitors, and displays; telecommunication equipment including telephones, cellular telephones, facsimile machines, answering machines; small electronic devices and appliances containing one or more circuit boards; video and stereo equipment; televisions, toys, games and educational devices containing one or more printed circuit boards; and major household appliances containing one or more printed circuit boards; and "electronic waste" means electronic equipment which has been discarded, become obsolete, ceased to function, is no longer wanted by its owner, or for any other reason has become available for recycling or disposal.

c. Household hazardous waste shall be collected, stored and transported in accordance with all applicable standards for such wastes adopted as rules or regulations by the department pursuant to P.L.1970, c.39, or as prescribed under any other applicable federal or State law.

d. The department may use a portion of the moneys available in the State Recycling Fund pursuant to paragraph (2) of subsection b. of section 5 of P.L.1981, c.278 (C.13:1E-96) for the purposes of providing to counties technical assistance and training in proper used dry cell battery management.

(cf: P.L.2002, c.106, s.6)

19. This act shall take effect immediately.

STATEMENT

This bill, the "Electronic Waste Producer Responsibility Act," shifts the financial responsibility for the collection and recycling of discarded electronic waste from the taxpayers of New Jersey to the producers of electronic equipment.

"Electronic equipment" is defined as equipment that is dependent on electric currents electromagnetic fields in order to work properly and contains one or more printed circuit boards, including, but not limited to, computer equipment including cathode ray tubes, display monitors, central processing units, keyboards, printers, computer peripherals; display monitors, and displays; telecommunication equipment including telephones, cellular telephones, facsimile machines, answering machines; small electronic devices and appliances containing one or more circuit boards; video and stereo equipment; televisions, toys, games and educational devices containing one or more printed circuit boards; and major household appliances containing one or more printed circuit boards.

"Electronic waste" is defined as electronic equipment which has been discarded, become obsolete, ceased to function, is no longer wanted by its owner, or for any other reason has become available for recycling or disposal.

Within 24 months of the effective date of the act, every producer of electronic equipment sold, offered for sale, or offered for promotional purposes in New Jersey must prepare and submit an electronic waste management plan, in writing, to the Department of Environmental Protection (DEP) for implementing a program for financing the environmentally-sound management of discarded and obsolete electronic equipment, including orphan electronic waste and historic electronic waste.

A "producer" is defined as any person that, either as of the effective date of the act or thereafter, and regardless of the selling technique used, including by means of distance communication: (1) manufactures and sells electronic equipment under its own brand; (2) manufactures and sells electronic equipment without affixing a brand; (3) resells electronic equipment produced by other suppliers under its own brand and label; or (4) imports or exports electronic equipment into this State.

"Historic electronic waste" is defined as electronic equipment which became electronic waste prior to the effective date of this act, the producer of which is a business concern still in business as of the effective date of this act.

"Orphan electronic waste" is defined as electronic waste manufactured by or bearing the brand name of a business concern which is no longer in business as of the effective date of this act.

Every producer shall be responsible for financing the environmentally-sound management of the electronic waste from its own products, but may execute this obligation through individual financing schemes or in cooperation with other producers.

Consumers and electronic equipment end users may be responsible for delivering electronic waste into the collection system, as may be provided for in the producer's electronic waste management plan. Consumers will not be charged to return electronic waste.

Any producer that fails to implement a financial responsibility program within the time provided for in the act shall be prohibited from selling its products in this State.

Within 6 months of the effective date of the act, every producer must prepare and submit an electronic waste management plan, in writing, to the DEP, which is designed to meet the producer's responsibilities under the act.

Each electronic waste management plan submitted by a producer must provide, at a minimum, that the producer will participate in a national collection program for computer products and cathode ray tubes that will be fully implemented in this State no later than 6 months following the effective date of the act, and that the collection program will be consistent with the requirements of the act and with the performance standards established by the DEP.

The DEP cannot approve an electronic waste management plan unless it finds, in writing, that the plan, or the collection program, will provide:

(2) A plan for financing that producer's share of orphan electronic waste and historic electronic waste in this State, as determined by the DEP, as of the effective date of the producer's financial obligation;

(3) A plan for complying with the labeling, consumer notification, and public education requirements of the act that are necessary to ensure the protection of electronic equipment users, processors and recyclers, and ensure participation in the producer's plan;

(5) A description of the performance measures to be used and reported by the producer to the DEP to demonstrate that the collection system is meeting the measures of the collection program's effectiveness required by the DEP; and

The DEP may, in accordance with a fee schedule adopted as a rule or regulation, establish and charge reasonable fees for any of its services, which shall cover the full costs incurred by the DEP for the review of proposed plans and for other costs incurred by the DEP for implementation of the act.

Upon a determination by the DEP that a producer is not meeting the performance standards established under the act relating to the reduction or elimination of hazardous materials and to the collection and recycling of electronic waste, the DEP may order the producer to take actions the DEP deems necessary to achieve the performance standards. Any producer that fails to meet any of these requirements within the time frame required will be prohibited from selling electronic equipment in this State.

Within 12 months of the effective date of the act, every producer must phase-out the use of lead, mercury, cadmium, hexavalent chromium, brominated flame retardants, and polyvinyl chloride and only offer for sale electronic equipment that contain less harmful alternatives. If a producer provides sufficient demonstration to the DEP that it is technically impossible to use an alternative substance, the DEP may issue a limited term exemption. The exemption will be rescinded when the DEP determines, in writing, that a less harmful alternative for the substance can be used. If the DEP grants an exemption, the DEP may assign a limited amount of time before the exemption expires to ensure that producers are investing in research and development to identify an appropriate less harmful alternative.

Within 12 months of the effective date of the act, all electronic equipment sold, offered for sale, or offered for promotional purposes in New Jersey must be clearly marked or labeled, or informational materials must be provided with the new product, which provide consumers and end users with information relating to the following:

(1) the hazardous materials contained in the electronic equipment and the parts or sub-units which contain the particular substances;

As part of an approved electronic waste management plan, a producer must implement a consumer education plan that will provide consumers with information about:

(1) the prohibition on disposal of electronic waste by any means not included as part of the producer' approved electronic waste management plan;

(2) the electronic waste return and collection systems available to them;

(3) the potential effects on the environment and human health as a result of the presence of hazardous substances contained in electronic equipment and the dangers of improper disposal; and

(4) the consumers' and electronic equipment users' roles in contributing to the re-use, recycling, and other forms of electronic waste recovery.

Within 24 months following implementation of the producer's electronic waste management plan, each producer must demonstrate to the DEP that it has achieved a level of 85% public awareness of the program for each of its covered product categories through independent public polling. Producers may collectively undertake such a demonstration of public awareness provided that the polling instrument is designed to identify public awareness of a majority of producers' programs or a majority of the electronic equipment types covered by the act. The DEP must approve the design, protocols and implementation plan for the opinion polling.

As part of an approved electronic waste management plan, and to facilitate the environmentally-sound management of electronic waste, every producer must demonstrate to the DEP that adequate measures have been taken to provide information to recyclers concerning the producer's electronic equipment. No later than 12 months after new electronic equipment enters the market, producers must provide new information to recyclers regarding the end-of-life treatment of the new product relating to disassembly, material content, and safety concerns.

This bill is based on substantially similar legislation currently pending in the Rhode Island Legislature.