2021 -- H 5525

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LC001379

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO HEALTH AND SAFETY -- PHOTOVOLTAIC TAKEBACK ACT OF 2021

     Introduced By: Representatives Kennedy, Azzinaro, Edwards, Casimiro, Filippi, and
Chippendale

     Date Introduced: February 12, 2021

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 19.17

PHOTOVOLTAIC TAKEBACK ACT OF 2021

     23-19.17-1. Legislative findings.

     The legislature finds that a convenient, safe, and environmentally sound system for the

recycling of photovoltaic modules, minimization of hazardous waste, and recovery of commercially

valuable materials must be established. The legislature further finds that the responsibility for this

system must be shared among all stakeholders, with manufacturers financing the takeback and

recycling system.

     23-19.17-2. Definitions.

     Defintions. As used in this section the following terms shall have the following meanings

unless the context clearly requires otherwise:

      (1) "Consumer electronic device" means any device containing an electronic circuit board

that is intended for everyday use by individuals, such as a watch or calculator.

     (2) "Department" means the department of environmental management.

     (3) "Distributor" means a person who markets and sells photovoltaic modules to retailers

or consumers in the state of Rhode Island.

     (4) "Installer" means a person who assembles, installs, and maintains photovoltaic module

systems.

     (5) "Manufacturer" means any person in business or no longer in business, but having a

successor in interest who, irrespective of the selling technique used, including by means of distance

or remote sale:

     (i) Manufactures or has manufactured a photovoltaic module under its own brand names

for use or sale in or into this state;

     (ii) Assembles or has assembled a photovoltaic module that uses parts manufactured by

others for use or sale in or into this state under the assembler's brand names;

     (iii) Resells or has resold in or into this state under its own brand names a photovoltaic

module produced by other suppliers, including retail establishments that sell photovoltaic modules

under their own brand names;

     (iv) Manufactures or has manufactured a cobranded photovoltaic module product for use

or sale in or into this state that carries the name of both the manufacturer and a retailer;

     (v) Imports or has imported a photovoltaic module into the United States that is used or

sold in or into this state. However, if the imported photovoltaic module is manufactured by any

person with a presence in the United States meeting the criteria of manufacturer under subsections

(5)(i) through (5)(vi) of this section, that person is the manufacturer;

     (vi) Sells at retail a photovoltaic module acquired from an importer that is the manufacturer

and elects to register as the manufacturer for those products; or

     (vii) Elects to assume the responsibility and register in lieu of a manufacturer as defined

under subsections (5)(i) through (5)(vi) of this section.

     (6) "Photovoltaic module" means the smallest non-divisible, environmentally protected

assembly of photovoltaic cells or other photovoltaic collector technology and ancillary parts

intended to generate electrical power under sunlight, except that "photovoltaic module" does not

include a photovoltaic cell that is part of a consumer electronic device for which it provides

electricity needed to make the consumer electronic device function. "Photovoltaic module"

includes, but is not limited to, interconnections, terminals, and protective devices such as diodes

that:

     (i) Are installed on, connected to, or integral with buildings;

     (ii) Are used as components of freestanding, off-grid, power generation systems, such as

for powering water pumping stations, electric vehicle charging stations, fencing, street and signage

lights, and other commercial or agricultural purposes; or

     (iii) Are part of a system connected to the grid or utility service.

     (7) "Predecessor" means an entity from which a manufacturer purchased a photovoltaic

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module brand, its warranty obligations, and its liabilities. "Predecessor" does not include entities

from which a manufacturer purchased only manufacturing equipment.

     (8) "Rare earth element" means lanthanum, cerium, praseodymium, neodymium,

promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium,

ytterbium, lutetium, yttrium, or scandium.

     (9) "Retailer" means a person who offers photovoltaic modules for retail sale in the state

through any means including, but not limited to, remote offerings such as sales outlets, catalogs, or

Internet sales.

     (10) "Reuse" means any operation by which a photovoltaic module or a component of a

photovoltaic module changes ownership and is used for the same purpose for which it was

originally purchased.

     (11) "Stewardship plan" means the plan developed by a manufacturer or its designated

stewardship organization for a self-directed stewardship program.

     (12) "Stewardship program" means the activities conducted by a manufacturer or a

stewardship organization to fulfill the requirements of this chapter and implement the activities

described in its stewardship plan.

     23-19.17-3. Establishment of takeback program.

     (a) The department must develop guidance for a photovoltaic module stewardship and

takeback program to guide manufacturers in preparing and implementing a self-directed program

to ensure the convenient, safe, and environmentally sound takeback and recycling of photovoltaic

modules and their components and materials. By January 1, 2022, the department must establish a

process to develop guidance for photovoltaic module stewardship plans by working with

manufacturers, stewardship organizations, and other stakeholders on the content, review, and

approval of stewardship plans. The department's process must be fully implemented and

stewardship plan guidance completed by July 1, 2022.

     (b) A stewardship organization may be designated to act as an agent on behalf of a

manufacturer or manufacturers in operating and implementing the stewardship program required

under this chapter. Any stewardship organization that has obtained such designation must provide

to the department a list of the manufacturers and brand names that the stewardship organization

represents within sixty (60) days of its designation by a manufacturer as its agent, or within sixty

(60) days of removal of such designation.

      (c) Each manufacturer must prepare and submit a stewardship plan to the department by

the later of July 1, 2022, or within thirty (30) days of its first sale of a photovoltaic module in or

into the state.

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     (d) A stewardship plan must, at a minimum:

     (1) Describe how manufacturers will finance the takeback and recycling system, and

include an adequate funding mechanism to finance the costs of collection, management, and

recycling of photovoltaic modules and residuals sold in or into the state by the manufacturer with

a mechanism that ensures that photovoltaic modules can be delivered to takeback locations without

cost to the last owner or holder;

     (2) Accept all of their photovoltaic modules sold in or into the state after July 1, 2021;

     (3) Describe how the program will minimize the release of hazardous substances into the

environment and maximize the recovery of other components, including rare earth elements and

commercially valuable materials;

     (4) Provide for takeback of photovoltaic modules at locations that are within the county of

the state in which their photovoltaic modules were used and are as convenient as reasonably

practicable, and if no such location within the county of the state exists, include an explanation for

the lack of such location;

     (5) Identify how relevant stakeholders, including consumers, installers, building

demolition firms, and recycling and treatment facilities, will receive information required in order

for them to properly dismantle, transport, and treat the end-of-life photovoltaic modules in a manner

consistent with the objectives of this chapter;

     (6) Establish performance goals, including a goal for the rate of combined reuse and

recycling of collected photovoltaic modules as a percentage of the total weight of photovoltaic

modules collected, which rate must be no less than eighty-five percent (85%).

     (7) A manufacturer must implement the stewardship plan.

     (8) A manufacturer may periodically amend its stewardship plan. The department must

approve the amendment if it meets the requirements for plan approval outlined in the department's

guidance. When submitting proposed amendments, the manufacturer must include an explanation

of why such amendments are necessary.

     (e) The department must approve a stewardship plan if it determines the plan addresses

each element outlined in the department's guidance.

     23-19.17-4. Reporting requirements.

     (a) Beginning April 1, 2024, and by April 1 in each subsequent year, a manufacturer, or its

designated stewardship organization, must provide to the department a report for the previous

calendar year that documents implementation of the plan and assesses achievement of the

performance goals established in § 23-19.17-3(d)(6).

     (b) The report may include any recommendations to the department or the legislature on

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modifications to the program that would enhance the effectiveness of the program, including

management of program costs and mitigation of environmental impacts of photovoltaic modules.

     (c) The manufacturer or stewardship organization must post this report on a publicly

accessible website.

     23-19.17-5. Plan required to do business.

     (a) Beginning July 1, 2023, no manufacturer, distributor, retailer, or installer may sell or

offer for sale a photovoltaic module in or into the state unless the manufacturer of the photovoltaic

module has submitted to the department a stewardship plan and received plan approval.

     (b) The department shall send a written warning to a manufacturer that is not participating

in a plan. The written warning must inform the manufacturer that it must submit a plan or participate

in a plan within thirty (30) days of the notice.

     (c) The department may assess a civil penalty of up to ten thousand dollars ($10,000) upon

a manufacturer for each sale that occurs in or into the state of a photovoltaic module for which a

stewardship plan has not been submitted by the manufacturer and approved by the department after

the initial written warning. A manufacturer may appeal a penalty issued under this section to the

superior court the county in which it is located within one hundred eighty days of receipt of the

notice pursuant to the provisions of chapter 35 of title 42.

     (d) The department must send a written warning to a distributor, retailer, or installer that

sells or installs a photovoltaic module made by a manufacturer that is not participating in a plan.

The written warning must inform the distributor, retailer, or installer that they may no longer sell

or install a photovoltaic module if a stewardship plan for that brand has not been submitted by the

manufacturer and approved by the department within thirty (30) days of the notice.

     23-19.17-6. Fees.

     The department may collect a flat fee from participating manufacturers to recover costs

associated with the plan guidance, review, and approval process provided by the department. Other

administrative costs incurred by the department for program implementation activities, including

stewardship plan review and approval, enforcement, and any rule making, may be recovered by

charging every manufacturer an annual fee calculated by dividing department administrative costs

by the manufacturer's pro rata share of the Rhode Island state photovoltaic module sales in the most

recent preceding calendar year, based on best available information. The sole purpose of assessing

the fees authorized in this subsection is to predictably and adequately fund the department's costs

of administering the photovoltaic module recycling program.

     23-19.17-7. Restricted account established.

     The photovoltaic module recycling account shall be created and maintained in the custody

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of the general treasurer. All fees collected from manufacturers under this chapter must be deposited

in the account. Expenditures from the account may be used only for administering this chapter.

Only the director of the department or the director's designee may authorize expenditures from the

account. Funds in the account may not be diverted for any purpose or activity other than those

specified in this section.

     23-19.17-8. Adoption of rules.

     The department may adopt rules as necessary for the purpose of implementing,

administering, and enforcing this chapter.

     23-19.17-9. National takeback programs as alternative.

     In lieu of preparing a stewardship plan, a manufacturer may participate in a national

program for the convenient, safe, and environmentally sound takeback and recycling of

photovoltaic modules and their components and materials, if substantially equivalent to the intent

of the state program. The department may determine substantial equivalence if it determines that

the national program adequately addresses and fulfills each of the elements of a stewardship plan

outlined in § 23-19.17-3(d) and includes an enforcement mechanism reasonably calculated to

ensure a manufacturer's compliance with the national program. Upon issuing a determination of

substantial equivalence, the department must notify affected stakeholders including the

manufacturer. If the national program is discontinued or the department determines the national

program is no longer substantially equivalent to the Rhode Island program, the department must

notify the manufacturer and the manufacturer must provide a stewardship plan to the department

for approval within thirty (30) days of notification.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- PHOTOVOLTAIC TAKEBACK ACT OF 2021

***

     This act would require that any manufacturer or installer of solar module systems in Rhode

Island establish a program as set up by the department of environmental management, for the safe

disposal of those systems.

     This act would take effect upon passage.

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