H. B. 2814
(By Delegates Fleischauer, Talbott, Brown,
Manypenny, M. Poling, Staggers and Hatfield)
[Introduced January 24, 2011; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-15A-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto thirteen new sections, designated §22-15A-30, §22-15A-31, §22-15A-32, §22-15A-33, §22-15A-34, §22-15A-35, §22-15A-36, §22-15A-37, §22-15A-38, §22-15A-39, §22-15A-40, §22-15A-41 and §22-15A-42, all relating to establishing a returnable beverage container deposit program.
Be it enacted by the Legislature of West Virginia:
That §22-15A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto thirteen new sections, designated §22-15A-30, §22-15A-31, §22-15A-32, §22-15A-33, §22-15A-34, §22-15A-35, §22-15A-36, §22-15A-37, §22-15A-38, §22-15A-39, §22-15A-40, §22-15A-41 and §22-15A-42, all to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL ACTION PLAN.
Unless the context clearly indicates a different meaning or defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste tires or tire derived material which are reused in constructing retaining walls, rebuilding highway shoulders and subbase, building highway crash attenuation barriers and other civil engineering applications, feed hopper or watering troughs for livestock, other agricultural uses approved by the Department of Environmental Protection, playground equipment, boat or truck dock construction, house or building construction, go-cart, motorbike or race track barriers, recapping, alternative daily cover or similar types of beneficial applications. Provided, That However, waste tires may not be reused as fencing, as erosion control structures, along stream banks or river banks or reused in any manner where human health or the environment, as determined by the Secretary of the Department of Environmental Protection, is put at risk.
(2) "Beverage” means nonintoxicating and intoxicating beer, ale, intoxicating liquors, alcohol, alcoholic liquor, wine, spirits and any other liquid regulated or licensed by the Alcohol Beverage Control Commissioner or any successor agency; nonalcoholic drinks in liquid form including, but not limited to, water, tea and coffee drinks regardless of dairy product content and intended for human consumption in a beverage container. However, dairy products and other drinks with nutritional value are not beverages for purposes of this article.
(3) "Beverage container” means an airtight metal, glass or plastic container or a container composed of a combination of these materials, which, at the time of sale, contains one gallon or less of a beverage, including HDPE #2 plastic water containers.
(2) (4) “Brand” means the name, symbol, logo, trademark or other information that identifies a product rather than the components of the product.
(3) (5) "Collected for commercial purposes” means taking solid waste for disposal from any person for remuneration regardless of whether or not the person taking the solid waste is a common carrier by motor vehicle governed by article two, chapter twenty-four-a of this code.
(4) (6) “Computer” means a desktop, personal computer or laptop computer, including the computer monitor. Computer does not include a personal digital assistant device, computer peripheral devices such as a mouse or other similar pointing device, a printer or a detachable keyboard.
(5) (7) "Court” means any circuit, magistrate or municipal court.
(6) (8) “Covered electronic device” means a television, computer or video display device with a screen that is greater than four inches measured diagonally. “Covered electronic device” does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment.
(9) “Dealer” means a person or business who sells or offers for sale to consumers within this state a beverage in a beverage container.
(7) (10) "Department" means the Department of Environmental Protection.
(11) “Distributor” means a person who sells beverages in beverage containers to a dealer within this state and includes a manufacturer who engages in those sales.
(8) (12) "Litter" means all waste material, including, but not limited to, any garbage, refuse, trash, disposable package, container, can, bottle, paper, covered electronic devices, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof or any other offensive or unsightly matter, but not including the wastes of primary processes of mining, logging, sawmilling, farming or manufacturing.
(9) (13) "Litter receptacle" means those containers suitable for the depositing of litter at each respective public area designated by the secretary's rules promulgated pursuant to subsection (e), section three of this article.
(10) (14) “Manufacturer” means either:
(A) A person that is the brand owner of a covered electronic device or television sold or offered for sale in this state by any means, including transactions conducted through retail sales outlets, catalogs or the Internet; or
(B) A person who bottles, cans or otherwise places beverages in beverage containers for sale to distributors, dealers or consumers.
(15) “Nonrefillable container” means a returnable container which is not intended to be refilled for sale by a manufacturer.
(16) “Nonreturnable container” means a beverage container upon which no deposit or a deposit of less than five cents has been paid, or is required to be paid upon the removal of the container from the sale or consumption area, or for which no cash refund or a refund of less than five cents is payable by a redemption center in this state.
(17) “Operator of a vending machine” means equally its owner, the person who refills it and the owner or lessee of the property upon which it is located.
(11) (18) "Person" means a natural person, corporation, firm, partnership, association or society and the plural as well as the singular.
(12) (19) "Public area" means an area outside of a municipality, including public road and highway rights-of-way, parks and recreation areas owned or controlled by this state or any county of this state or an area held open for unrestricted access by the general public.
(13) (20) “Recyclable materials” means those materials that would otherwise become solid waste for disposal in a refuse disposal system and which may be collected, separated or processed and returned to the marketplace in the form of raw materials or products.
(21) “Redemption center” means an operation which accepts from consumers and provides the refund value for returnable containers intended to be recycled and ensures that the empty returnable containers are properly recycled.
(14) (22) "Remediate or remediation" means to remove all litter, solid waste and tires located above grade at a site. Provided, That However, remediation does not include clean up of hazardous waste.
(23) “Returnable container” means a beverage container upon which a deposit of five cents has been paid, or is required to be paid upon the removal of the container from the sale or consumption area.
(24) “Reverse vending machine” means a mechanical device, which accepts one or more types of returnable containers and issues a redeemable credit slip with a value of not less than the container’s refund value.
(25) “Sale or consumption area” means the premises within the property of the dealer or the dealer’s lessor where the sale is made, and where beverages in returnable containers may be consumed without payment of a deposit, but when the beverage container is removed from the premises, the customer is either required by the dealer to pay the deposit, or the dealer forfeits its collection of the deposit.
(15) “Television” means any telecommunication system device that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a video display device peripheral to a computer in which the display contains a television tuner.
(16) (26) ”Secretary” means the Secretary of the Department of Environmental Protection.
(15)(27) “Television” means any telecommunication system device that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a video display device peripheral to a computer in which the display contains a television tuner.
(17) (28) “Video display device” means 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. 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 (CRT), liquid crystal display (LCD), gas plasma, digital light processing, other image-projection technology or imaging display technologies.
(18) (29) "Waste tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle but which has been discarded, abandoned or is no longer suitable for its original, intended purpose nor suitable for recapping, or other beneficial use because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or tire dealer for the purpose of being reused or recapped are not waste tires.
(19) (30) "Waste tire monofill or monofill" means an approved solid waste facility where no solid waste except waste tires are placed for the purpose of long term storage for eventual retrieval for marketing purposes.
(20) (31) "Waste tire processing facility" means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprossing cutting, splitting, shredding, quartering, grinding or otherwise breaking down waste tires for the purposes of disposal, reuse, recycling and/or marketing.
(21) (32) "Waters of the state" means generally, without limitation, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands.
(22) (33) "Yard waste" means grass clippings, weeds, leaves, brush, garden waste, shrub or tree prunings and other living or dead plant tissues, except that materials, which due to inadvertent contamination or mixture with other substances which render the waste unsuitable for composting, are not yard waste: Provided, That the same or similar waste generated by commercial agricultural enterprises is excluded.
§22-15A-30. Legislative findings and purpose.
(a) The Legislature declares that in order for the State of West Virginia to meet the requirements of the West Virginia Recycling Act, which mandates recycling goals of fifty percent, it is imperative that new opportunities for recycling, particularly in rural areas of the state, be developed.
(b) The Legislature finds that containers are the most recyclable commodity in the waste stream and that the discarding of these containers is an unnecessary addition to the state’s litter problem and its solid waste disposal system.
(c) The Legislature further finds that it is in the public interest to establish a program for the recycling of containers which:
(1) Stimulates statewide creation of new jobs and wider employment in the recycling industry;
(2) Reduces the volume of waste and litter;
(3) Increases opportunities for recycling and provides financial incentives for consumers to do so; and
(4) Builds upon existing recycling infrastructure.
§22-15A-31. Start up date for statewide deposit and effective nonreturnable containers; deposits; refunds; deposits exempt from sales tax, etc.
(a) On and after July 1, 2012:
(1) A dealer within this state may not sell, offer for sale or give to a consumer a beverage in a nonreturnable container for off premises consumption of a beverage if the manufacturer originally packages the beverage in a returnable container.
(2) A dealer who regularly sells beverages for consumption off the dealer’s premises shall collect a deposit of five cents on each returnable container. Collected deposits shall be submitted to the Department of Environmental Protection on a monthly basis, beginning August 1, 2012.
(3) Redemption centers shall accept any kind, size and brand of returnable containers sold or offered for sale in this state, for which a deposit has been paid, and shall pay the deposit refund in cash to any person returning such containers.
(4) Businesses that sell beverages in returnable containers for on premises consumption, such as hotels, bars and restaurants, shall collect the used returnable containers and either use a recycling facility or redemption center for disposal of the containers or become a redemption center.
(5) Businesses that sell beverages in returnable containers for on premises consumption, such as hotels, bars and restaurants, shall remit to the Department of Environmental Protection a deposit equal to five cents for each beverage purchased from a distributor, wholesaler or retailer in a returnable container. However, the business shall not pay a deposit on a returnable container purchased from a retailer if the deposit was paid to the retailer at the time of purchase. The deposit shall be remitted by the business on a monthly basis to the Department of Environmental Protection and shall be accompanied by a deposit report on forms provided by the department. The report shall, at a minimum, show the total number of returnable containers used or sold each month, the total amount of deposit being remitted and the total number of beverages purchased in returnable containers from each distributor, wholesaler and retailer each month.
(6) Manufacturers producing returnable beverage containers to be sold in this state shall clearly indicate by embossing or by a stamp, a label or other method securely affixed to the beverage container, the refund value of the container and the name of this state.
(b) A redemption center may, but is not required to, accept for recycling an empty returnable container which does not state on the container the refund value of the container and the name of this state. A deposit refund shall not be paid on any such container.
(c) A person, dealer, distributor or manufacturer may not return an empty container to a redemption center for a refund of the deposit if a redemption center has already refunded the deposit on that returnable container.
(d) A redemption center may accept, but is not required to accept, empty returnable containers from a person for a refund in excess of $25 on any given day.
(e) After verifying the accuracy of the request for refund, the Department of Environmental Protection shall refund the deposit to the redemption center plus a one cent per container handling fee.
(f) Deposits collected under this article are exempt from the sales tax imposed by article fifteen, chapter eleven of this code.
(g) Deposits collected or refunded shall not be included as gross income for purposes of calculating the business and occupation tax imposed or authorized by article thirteen, chapter eleven of this code.
§22-15A-32. Redemption centers.
(a) Prior to operation, redemption centers shall be certified by the Department of Environmental Protection.
(b) Applicants for certification as a redemption center shall be filed with the Department of Environmental Protection on forms prescribed by the department. Redemption centers must meet the requirements of this article. Solid waste facilities and recycling facilities, as defined in article fifteen of this chapter, may include redemption centers. Redemption centers are not permitted facilities under article fifteen of this chapter.
(c) Applications for certification shall at a minimum contain the following:
(1) Name and business address of the applicant;
(2) Contact information for the applicant;
(3) Valid West Virginia business license and any applicable county or municipal business license or permit;
(4) Proposed method for crushing, destroying and recycling returnable containers;
(5) Amount of space available for receiving, crushing or destroying and storing containers; and
(6) Other information requested by the department.
(d) The department, at any time, may review the certification of a redemption center. After written notice to the person responsible for the establishment and operation of the redemption center and to the dealers served by the redemption center, the department may withdraw the certification of the center if it finds that there has not been compliance with applicable laws, rules, certification requirements, fraud or abuse of the program.
(e) The Department of Environmental Protection, prior to the approval of any redemption center, shall consult with, and if requested, hold a meeting with local solid waste authorities to discuss possible redemption sites and centers and coordination of the collection and redemption process.
The Department of Enviromental Protection may enter into memorandums of understanding with local solid waste authorities for the purposes of clarifying responsibilities relating to redemption and collection of beverage containers, and any other matters which would streamline the redemption process, utilize existing infrastructure and expand the overall recycling infrastructure. To the extent possible, approval of redemption sites should strengthen and not harm local solid waste authority recycling efforts.
(f) Redemption centers shall:
(1) Accept all types of empty returnable containers for which a deposit has been paid in West Virginia.
(2) Verify that all containers to be redeemed bear a valid West Virginia refund value;
(3) Pay to the redeemer at a minimum the full refund value for all beverage containers, except as provided in section thirty-four of this article;
(4) Shall not crush or destroy all returnable containers that are accepted at the time of redemption, but such collected containers may be crushed or destroyed after the recyclable items have been separated;
(5) Recycle each container collected either through a contractual agreement with an out-of-state recycler authorized to transport recyclables within this state or an instate recycling facility permitted by the Department of Environmental Protection. However, a redemption center operated by a recycler is permitted to recycle the containers accepted by it; and
(6) Forward the documentation necessary to support claims for payment under section thirty-five of this article.
(g) Redemption centers’ redemption areas shall be maintained in full compliance with applicable laws and with the orders and rules of the Department of Environmental Protection, the Bureau for Public Health and local health departments.
§22-15A-33. Reverse vending machine requirements.
Reverse vending machines may be used by redemption centers if the reverse vending machine accepts any type of empty returnable container and pays out appropriate refunds via a redeemable voucher for those containers that bear a valid West Virginia refund value. The reverse vending machine shall be routinely serviced to ensure proper operation and continuous acceptance of containers and payment of refunds. All returnable containers accepted by a reverse vending machine shall either be crushed or destroyed at the point of redemption.
§22-15A-34. Refusal of refund value payment for a returnable container.
Redemption centers shall refuse to pay the refund value on any broken, corroded, dismembered, flattened returnable container, or any returnable container which:
(1) Contains a free flowing liquid;
(2) Does not properly indicate a refund value; or
(3) Contains a significant amount of foreign material.
§22-15A-35. Redemption center reporting.
The Department of Environmental Protection shall pay certified redemption centers handling fees and refund values as described in section thirty-one of this article, based on collection reports submitted by the redemption centers. All redemption centers shall submit to the required information on forms prescribed by the department. Information shall include at a minimum:
(1) The amount and type of containers accepted and rejected;
(2) The amount of refunds paid out;
(3) The amount and weight of each type of container transported out-of-state, or to a permitted recycling facility within this state;
(4) Copies of out-of-state transport and weight receipts, or acceptance receipts from permitted recycling facilities. If the redemption center and the recycling facility are the same entity, copies of out-of-state transport and weight receipts, or documentation of end use accepted by the Department of Environmental Protection, shall also be included.
(5) The requests for payment shall be submitted to the Department of Environmental Protection no more frequent than two times per month. Beginning January 1, 2012, each redemption center shall report the previous quarter’s information no later than thirty days after the end of that quarter to allow the handling rate to be calculated. Failure to timely submit the report will result in postponement of payment for those containers until the reports are submitted.
§22-15A-36. Report; filing; form and contents.
(a) A dealer that originates a deposit on a beverage container shall file a report with the Department of Environmental Protection, not later than March 1, 2012, and not later than March 1 of each year after that, containing the information required by subsection (b) of this section.
(b) The report required to be filed pursuant to subsection (a) of this section must contain, for the period of January 1, 2012, to December 31, 2012, and for the time period of January 1 to December 31 of each year thereafter, the dollar amount of the total deposits collected by the dealer on beverage containers sold within this state.
§22-15A-37. Returnable Container Deposit Fund; creation; administration; deposits; annual disbursement; report of information; rules.
(a) All returnable container deposits collected and remitted to the Department of Environmental Protection shall be deposited in a special revenue account in the State Treasury to be known as the “Returnable Container Deposit Fund”. Moneys in the fund are the sole property of the state and do not revert to the person, dealer, retailer or business that remitted the deposit to the state. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with section three, article two, chapter eleven-b of this code. However, for the fiscal year ending June 30, 2012, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.
(b) The amount paid to the State Treasury by dealers shall be deposited in the returnable container deposit fund created in subsection (a) of this section for annual disbursement by the Department of Environmental Protection in the following manner:
(1) Six cents per container to redemption centers and businesses.
(2) A reasonable amount not to exceed actual costs incurred by the Department of Environmental Protection to administer the program; and
(3) Ten percent of any surplus remaining in the fund after authorized payments to redemption centers and businesses to refund deposits, pay handling fees and administrative expenses shall be transferred to the “Community Litter Control Fund”;
(c) The Department of Environmental Protection shall report to the Joint Committee on Government and Finance, publish and make available to the public, information related to section thirty-six of this article no later than December 31, 2012 and each year thereafter.
(d) The Department of Environmental Protection shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the requirements of the returnable container deposit program contained in this article.
§22-15A-38. Nonprofit redemption assistance.
In order to achieve the aims of this article, nonprofit organizations who are either registered with the West Virginia Secretary of State or who are exempt from such registration, may accept returnable containers as donations. Notwithstanding contrary provisions of section thirty-one of this article, nonprofit organizations that have collected returnable containers as donations may obtain refunds in excess of $25.
§22-15A-39. Reporting and payments; limitation on local governments to assess or collect assessments or fees on deposit beverage containers.
(a) All inventory reports and payments shall be made monthly and received no later than the fifteenth day of the month following the end of the reporting period.
(b) Payment shall be made by check or money order payable to the Department of Environmental Protection, State of West Virginia. Funds shall be deposited into the Returnable Container Deposit Fund.
(c) No local government shall impose or collect any assessment or fee on deposit beverage containers.
§22-15A-40. Community Litter Control Fund.
(a) All moneys designated and transferred from the “Returnable Container Deposit Fund” in accordance with section thirty-seven of this article shall be deposited in the “Community Litter Control Fund” which is hereby created. Expenditures from the fund shall be for the purposes set forth in this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with section three, article two, chapter eleven-b of this code. However, for the fiscal year ending June 30, 2012, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.
(b) The “Community Litter Control Fund” may receive money or other assets from any source for deposit and shall retain interest earned on its investment.
(c) Money in the “Community Litter Control Fund” at the close of the fiscal year remains in the “Community Litter Control Fund” and does not lapse to the general revenue.
(d) The Department of Environmental Protection may only expend interest and earnings of the Community Litter Control Fund for grants for the purpose of creating and expanding recycling programs. Those persons and groups eligible for grants include county governments, local health departments, municipalities, regional planning agencies, nonprofits and charitable organizations that promote recycling through educational and clean-up programs. Activities to be performed by grant recipients and program objectives and deliverables shall be specified in contracts entered into by the grant recipients and the department. Grant recipients shall provide a financial match of not less than twenty-five percent of each grant received. Not more than $100,000 may be granted in any fiscal year to a single recipient.
(e) The Department of Environmental Protection shall annually submit a report summarizing the grants made under this section, contractual commitments made and achieved and a preliminary evaluation of the effectiveness of this section not later than September 30, 2012, and each year thereafter, to the Joint Committee on Government and Finance.
§22-15A-41. Prohibited return; violation; penalty.
(a) A person, dealer, business, distributor or manufacturer may not return or attempt to return to a redemption center for a refund any of the following:
(1) A beverage container that the person, dealer, business, distributor or manufacturer knows or should know was not purchased in this state.
(2) A beverage container that the person, dealer, business, distributor or manufacturer knows or should know did not have a deposit paid for it at the time of purchase.
(b) A person, dealer, business, distributor or manufacturer who violates subsection (a) of this section is subject to one of the following:
(1) If the person, dealer, business, distributor or manufacturer returns twenty-five but not more than one hundred nonreturnable containers, the person, dealer, business, distributor or manufacturer is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100. Each day a violation occurs is a separate offense.
(2) If the person, dealer, business, distributor or manufacturer returns one hundred or more nonreturnable containers or violates subdivision (a) above for a second or subsequent time, the person, dealer, business, distributor or manufacturer is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500. Each day a violation occurs is a separate offense.
(c) A person found guilty under this section shall be ordered by the court to pay restitution equal to the amount of loss caused by the violation.
§22-15A-42. Posting notice on redemption center premises; failure to comply; penalty.
A redemption center shall post a notice in that portion of the redemption center’s premises where returnable containers are redeemed stating the following: "A person who returns for refund an out-of-state nonreturnable container is subject to a fine of $500 and restitution." A redemption center that fails to comply with this section is subject to a fine of not more than $50.
NOTE: The purpose of this bill is to establish a program to recycle beverage containers and reduce litter. The bill requires the use of returnable containers for many beverages and requires the use of a five cent deposit; exempts deposits on containers from sales taxes and excludes deposits from business and occupation taxes; prescribes the powers and duties of DEP; and prescribes penalties and remedies.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§22-15A-30 through §22-15A-42 are new; therefore, they have been completely underscored.