Senate Bill 237 History
Senate Bill No. 237
(By Senators McCabe, Foster, White and Wells)
[Introduced February 12, 2009; referred to the Committee on
Natural Resources; then to the Committee on the Judiciary; then
to the Committee on 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
twelve 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 and §22-15A-41,
all relating to establishing a returnable beverage container
deposit program; defining terms; expressing findings and
purpose; requiring the use of returnable beverage containers;
requiring the collection of deposits on returnable beverage
containers; establishing program for the refund of deposits;
requiring food and beverage establishments pay deposit on
beverage containers when beverage is consumed on premises;
requiring the Department of Environmental Protection operate
the returnable beverage container program; requiring certification of redemption centers; establishing requirements
for certification of redemption centers; providing for payment
of deposit refunds and handling fees; establishing
requirements for reverse vending machines; exempting deposit
refunds from consumers sales and service tax and business and
occupation tax; exempting deposits on containers from
consumers sales and service tax and excluding deposits from
business and occupation tax; and providing penalties and
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 twelve 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 and §22-15A-41, all
to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
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
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, tea and coffee drinks
regardless of dairy product content and intended for human
consumption in a beverage container. However, dairy products 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.
"Brand" means the name, symbol, logo, trademark, or other information that identifies a product rather than the
components of the product.
"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.
"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.
"Court" means any circuit, magistrate or municipal
"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
"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.
"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.
"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.
"Manufacturer" means either:
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
(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 ten 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 ten cents is payable by a redemption center in
(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.
"Person" means a natural person, corporation, firm,
partnership, association or society and the plural as well as the
"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.
"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
(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.
"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
(23) "Returnable container" means a beverage container upon
which a deposit of ten cents has been paid, or is required to be
paid upon the removal of the container from the sale or consumption
(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 data" means the premises within the
property of the dealer or of the dealer's lessor where the sale is
made, within which beverages in returnable containers may be
consumed without payment of a deposit, and, upon removing a
beverage container from which, the customer is required by the
dealer to pay 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
"Secretary" means the Secretary of the Department of
(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
"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.
"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.
"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.
"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.
"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.
§22-15A-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 by
January 1, 2010, 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
valuable and 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
(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. Nonreturnable containers; deposits; refunds; deposits
exempt from sales tax, etc.
(a) 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.
(b) A dealer who regularly sells beverages for consumption off
the dealer's premises shall collect a deposit of ten cents on each returnable container. Collected deposits shall be submitted to the
Department of Environmental Protection on a monthly basis.
(c) 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.
(d) 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.
(e) 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 ten 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.
(f) 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
(g) 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
(h) 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.
(i) A redemption center may accept, but is not required to
accept, from a person, empty returnable containers for a refund in
excess of $25 on any given day.
(j) After verifying the accuracy of the request for refund,
the Department of Environmental Protection shall refund the deposit
to the redemption center plus a three cent per container handling
fee. However, the handling fee may be reduced to two cents per
returnable container if the redemption rate is seventy percent or greater.
(k) Deposits collected under this article are exempt from the
sales tax imposed by article fifteen, chapter eleven of this code.
(l) 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
(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) 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) Crush or destroy all returnable containers that are
accepted at the time of redemption;
(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.
(f) 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
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, 2010, 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 timely submitted for a subsequent quarter.
§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, 2010, 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, 2010, to
December 31, 2010, and for the time period of January 1 to December
31 of each year thereafter, the dollar amount of both the total
deposits collected by the dealer on beverage containers sold within
this state and the dollar amount of deposits refunded.
§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 article three, chapter eleven-b of this code.
However, for the fiscal year ending June 30, 2010, 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) Thirteen cents per container to redemption centers and
businesses or twelve cents per container if the handling is reduced
pursuant to section thirty-one of this article;
(2) A reasonable amount not to exceed actual costs incurred by
the Department of Environmental Protection to administer the
(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, 2011 and each year
(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. 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 article three, chapter eleven-b of this code. However, for the fiscal year
ending June 30, 2010, 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, nonprofit 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, 2011, and each year thereafter, to the Joint
Committee on Government and Finance.
§22-15A-40. 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
(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-41. 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 ten 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
§§22-15A-30 through 41 are new; therefore, strike-throughs and
underscoring have been omitted.