HB5348eng 95TH GENERAL ASSEMBLY

HB5348 Engrossed LRB095 18468 BDD 44554 b

AN ACT concerning environmental safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Mercury Thermostat Collection Act.

Section 10. Definitions.

"Agency" means the Environmental Protection Agency.

"Board" means the Pollution Control Board.

"Mercury thermostat" means a product or device that uses a mercury switch to sense and control room temperature through communication with heating, ventilating, or air conditioning equipment. "Mercury thermostat" includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings, but does not include thermostats used to sense and control temperature as a part of a manufacturing or industrial process.

"Thermostat manufacturer" means the person who owned or owns the brand name of a thermostat.

"Thermostat retailer" means a person who sells thermostats of any kind primarily to consumers.

"Thermostat technician" means a person who installs or repairs thermostats, but does not include a person who installs or repairs a thermostat serving his or her own residence.

"Thermostat wholesaler" means a person who sells thermostats of any kind primarily for resale.

Section 15. Mercury thermostat collection programs.

(a) This Section applies to thermostat manufacturers. Thermostat manufacturers must, individually or collectively, establish and maintain an Agency-approved program for the collection and recycling of mercury thermostats that have been removed, replaced, or otherwise taken out of service. The program must:

(1) include outreach and education efforts directed towards the following persons to inform them of the program and encourage their participation: thermostat wholesalers, thermostat technicians, thermostat retailers, and homeowners;

(2) provide the following persons with containers to be used for the collection of mercury thermostats:

(A) each thermostat wholesaler who requests to participate in the program as a mercury thermostat collection point;

(B) each thermostat technician that requests to participate in the program as a mercury thermostat collection point; and

(C) each thermostat retailer that requests to participate in the program as a mercury thermostat collection point;

(3) ensure that mercury thermostats delivered to persons participating in the program as mercury thermostat collection points are properly managed as universal waste in accordance with the Illinois Pollution Control Board's universal waste regulations;

(4) be designed to achieve the collection goals in subsection (e) of this Section;

(5) include financial or other incentives designed to encourage sufficient participation in the program to achieve the collection goals in subsection (e) of this Section; and

(6) not include any fees or other charges to persons participating in the program, except that each thermostat wholesaler, thermostat technician, or thermostat retailer that is provided with one or more collection containers may be charged a program administration fee not to exceed $75 per collection container.

(b) No later than January 1, 2009, thermostat manufacturers must, individually or collectively, submit to the Agency a plan for a mercury thermostat collection program. The plan must demonstrate that the collection program meets the requirements of subsection (a) of this Section. In reviewing the plans, the Agency may consider a plan's consistency with other thermostat manufacturer's collection plans in this State and mercury thermostat collection programs in other states. In addition, the Agency may consult with thermostat manufacturers, thermostat wholesalers, thermostat technicians, thermostat retailers, and environmental interest groups. Within 90 days after its receipt of a plan, the Agency must approve or deny the plan in writing. The Agency must approve the plan, with or without modifications, if the thermostat manufacturer's collection program meets the requirements of subsection (a) of this Section. If the Agency denies the plan or approves the plan with conditions, the Agency's decision shall be subject to appeal to the Board in accordance with the procedures of Section 40 of the Environmental Protection Act (415 ILCS 5/40) for appealing permit denials or conditions.

(c) No later than July 1, 2009, thermostat manufacturers must, individually or collectively, implement an Agency-approved mercury thermostat collection program, including any modifications required by the Agency.

(d) No later than March 1, 2010, and no later than March 1 of each year thereafter, thermostat manufacturers must, individually or collectively, submit to the Agency a report on their mercury thermostat collection program that at a minimum contains the following information:

(1) the number of mercury thermostats collected under the program during the previous calendar year;

(2) the estimated total amount of mercury contained in the mercury thermostats collected under the program during the previous calendar year;

(3) an evaluation of the effectiveness of the program, including, but not limited to, the program's contribution to meeting the collection goals set forth in subsection (e) of this Section and the effectiveness of the incentives required under subsection (a)(5) of this Section; and

(4) a list of all thermostat wholesalers, thermostat technicians, and thermostat retailers participating in the program as mercury thermostat collection points.

(e) The mercury thermostat collection programs required under this Act must be designed to collectively achieve the following collection goals:

(1) For calendar years 2011 and 2012, the collection goal for each year is 15% of the estimated number of mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(2) For calendar years 2013 and 2014, the collection goal for each year is 30% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(3) For calendar years 2015 and 2016, the collection goal for each year is 50% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(4) For calendar year 2017 and each calendar year thereafter, the collection goal for each year is 80% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

The estimated number of mercury thermostats in this State that are removed, replaced, or otherwise taken out of service each year must be determined by the Agency in consultation with thermostat manufacturers, thermostat wholesalers, thermostat technicians, thermostat retailers, and environmental interest groups. No later than March 1, 2013, and no later than March 1 of each year thereafter, the Agency must publish on its website the estimated number of mercury thermostats that were removed, replaced, or otherwise taken out of service during the previous calendar year.

(f) If the collection goals set forth in subsection (e) of this Section are not met for the calendar year 2012, 2014, 2016, or 2018, the Agency may require one or more thermostat manufacturers to revise their mercury thermostat collection programs. Thermostat manufacturers required to revise their collection programs must, individually or collectively, submit plans for revised collection programs no later than 90 days after the Agency's written notice that a revised collection program is required. The Agency shall review and approve revised plans in accordance with subsection (b) of this Section. Thermostat manufacturers must, individually or collectively, implement revised plans within 90 days after the Agency approves the revised plans in writing, including any modifications required by the Agency.

Section 20. Removal of mercury thermostats. Any person who removes, replaces, or otherwise takes out of service a mercury thermostat must properly manage the mercury thermostat as universal waste in accordance with the Board's universal waste regulations. This Section does not apply to a person who (i) removes, replaces, or otherwise takes out of service a mercury thermostat that serves his or her own residence and (ii) disposes of the thermostat as household waste.

Section 25. Certain prohibited activities. On and after July 1, 2009:

(1) No thermostat manufacturer that is in violation of this Act may sell, offer to sell, distribute, or offer to distribute a non-mercury thermostat.

(2) No thermostat wholesaler may sell, offer to sell, distribute, or offer to distribute a non-mercury thermostat unless the wholesaler participates in one or more collection programs required under this Act as a mercury thermostat collection point.

(3) No thermostat technician may remove, replace, or otherwise take out of service a mercury thermostat unless the thermostat technician delivers it to a person participating in a collection program required under this Act as a mercury thermostat collection point.

Section 27. Educational materials. The Agency shall develop an educational template to be made available to businesses and consumers to inform consumers about programs for the collection of mercury thermostats. The materials in this educational template may include, without limitation, labels, inserts, brochures, or signs.

Section 30. Information regarding the collection and recycling of mercury thermostats. No later than June 1, 2010, and no later than June 1 of each year thereafter, the Agency must post on its website information regarding the collection and recycling of mercury thermostats in this State. The information must include, but is not limited to, the following:

(1) a description of the collection programs established under this Act; and

(2) a report on the thermostat manufacturers' success in achieving the collection goals set forth in Section 15(e) of this Act.

Section 35. Duty to investigate. The Agency has the duty to investigate violations of this Act.

Section 40. Penalties.

(a) Any thermostat manufacturer who violates any provision of this Act or fails to perform any duty imposed by this Act (i) is liable for a civil penalty not to exceed $1,000 for the violation and an additional civil penalty not to exceed $1,000 for each day the violation continues and (ii) is liable for a civil penalty not to exceed $5,000 for a second or subsequent violation and an additional civil penalty not to exceed $1,000 for each day the second or subsequent violation continues.

(b) Any thermostat wholesaler, thermostat technician, or thermostat retailer who violates any provision of this Act or fails to perform any duty imposed by this Act is liable for a civil penalty not to exceed $250 for the first violation and not to exceed $500 for a second or subsequent violation.

(c) The penalties provided for in this Section may be recovered in a civil action brought by the Attorney General on behalf of the Agency and the People of the State of Illinois, or by the State's Attorney of the county in which the violation occurred. Without limiting any other authority that may exist for the awarding of attorney's fees and costs, a court of competent jurisdiction may award costs and reasonable attorney's fees, including the reasonable costs of expert witnesses and consultants, to the Attorney General or the State's Attorney in a case where he or she has prevailed against a person who has committed a willful, knowing, or repeated violation of this Act. Any funds collected under this Section in an action in which the Attorney General has prevailed must be deposited into the Hazardous Waste Fund established under the Environmental Protection Act. Any funds collected under this Section in an action in which a State's Attorney has prevailed shall be retained by the county in which he or she serves.

(d) The Attorney General or the State's Attorney of the county in which the violation occurred may, at the request of the Agency or on his or her own motion, institute a civil action for an injunction, prohibitory or mandatory, to restrain violations of this Act or to require such other actions as may be necessary to address violations of this Act.

(e) The penalties and injunctions provided in this Act are in addition to any penalties, injunctions, or other relief provided under any other law. Nothing in this Act bars a cause of action by the State for any other penalty, injunction, or relief provided by any other law.

(f) There is no penalty under this Section for a thermostat manufacturer's failure to achieve the collection goals set forth in subsection (e) of Section 15 of this Act.

Section 45. Recommendations to the Governor and the General Assembly. On or before January 1, 2010, the Agency shall investigate and make recommendations to the Governor and the General Assembly regarding strategies for improving the collection and proper management of mercury thermostats removed, replaced, or otherwise taken out of service by homeowners. In developing its recommendations, the Agency shall consult with thermostat manufacturers, thermostat retailers, local governments, recycling associations, environmental interest groups, and other appropriate stakeholder groups. The Agency shall identify the best available options for collecting mercury thermostats from homeowners taking into account such considerations as cost and convenience, safety and training, education and outreach needs, and shared responsibilities for implementing the collection and recycling program.

Section 50. No rulemaking authority. Notwithstanding any other rulemaking authority that may exist, neither the Governor nor any agency or agency head under the jurisdiction of the Governor has any authority to make or promulgate rules to implement or enforce the provisions of this Act. If, however, the Governor believes that rules are necessary to implement or enforce the provisions of this Act, the Governor may suggest rules to the General Assembly by filing them with the Clerk of the House and the Secretary of the Senate and by requesting that the General Assembly authorize such rulemaking by law, enact those suggested rules into law, or take any other appropriate action in the General Assembly's discretion. Nothing contained in this Act shall be interpreted to grant rulemaking authority under any other Illinois statute where such authority is not otherwise explicitly given. For the purposes of this Section, "rules" is given the meaning contained in Section 1-70 of the Illinois Administrative Procedure Act, and "agency" and "agency head" are given the meanings contained in Sections 1-20 and 1-25 of the Illinois Administrative Procedure Act to the extent that such definitions apply to agencies or agency heads under the jurisdiction of the Governor.

Section 99. Effective date. This Act takes effect upon becoming law.