Senate Bill No. 273
(By Senators McCabe, Unger, White, Foster, Barnes, McKenzie,
Edgell, Yoder and Love)
[Introduced February 24, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §20-10-1, §20-10-2,
§20-10-3, §20-10-4, §20-10-5, §20-10-6, §20-10-7, §20-10-8,
§20-10-9, §20-10-10, §20-10-11, §20-10-12, §20-10-13 and
§20-10-14, all relating to requiring the use of returnable
containers for soft drinks, soda water, carbonated natural or
mineral water, other nonalcoholic carbonated drinks and for
beer, ale or other malt drinks of any alcoholic content and
for certain other beverage containers; requiring the use of
unredeemed bottle deposits; prescribing the powers and duties
of certain state agencies and officials; and prescribing
penalties and remedies.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §20-10-1, §20-10-2, §20-10-3, §20-10-4, §20-10-5, §20-10-6, §20-10-7, §20-10-8,
§20-10-9, §20-10-10, §20-10-11, §20-10-12, §20-10-13 and §20-10-14,
all to read as follows:
ARTICLE 10. WEST VIRGINIA BEVERAGE CONTAINER RECYCLING AND LITTER
§20-10-1. 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 50% by the first
day of January, two thousand ten, 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 already overburdened solid waste
(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.
As used in this article:
(a) "Beverage" means beer, ale, or other drink produced by
fermenting malt, mixed spirits, mixed wine, tea and coffee drinks
regardless of dairy-delivered product content, soda, or
noncarbonated water, and all nonalcoholic drinks in liquid form and
intended for internal human consumption that is contained in a
(b) "Beverage container" means an airtight metal, glass, paper
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.
(c) "Empty returnable container" means a beverage container
which contains nothing except the residue of its original contents.
(d) "Returnable container" means a beverage container upon
which a deposit of at least ten cents has been paid, or is required
to be paid upon the removal of the container from the sale or
consumption area, and for which a refund of at least ten cents in
cash is payable by every dealer or distributor in this State of
that beverage in beverage containers, as further provided in
section two of this article.
(e) "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
this State of that beverage in beverage containers, as further
provided in section two of this article.
(f) "Person" means an individual, partnership, corporation,
association or other legal entity.
(g) "Dealer" means a person or business who sells or offers
for sale to consumers within this State a beverage in a beverage
(h) "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.
(i) "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.
(j) "Redemption Center" means an operation which accepts from
consumers and provides the refund value for empty deposit beverage
containers intended to be recycled and ensures that the empty
deposit beverage containers are properly recycled.
(k) "Manufacturer" means a person who bottles, cans or
otherwise places beverages in beverage containers for sale to
distributors, dealers or consumers.
(l) "Reverse vending machine" means a mechanical device, which
accepts one or more types of empty deposit beverage containers and
issues a redeemable credit slip with a value of not less than the
container's refund value.
(m)"Within this State" means within the exterior limits of the
State of West Virginia and includes the territory within these
limits owned by or ceded to the United States of America.
(n) "Sale or consumption area" 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.
(o) "Nonrefillable container" means a returnable container
which is not intended to be refilled for sale by a manufacturer.
(p) "Mixed wine drink" means a drink or similar product
marketed as a wine cooler and containing less than seven percent
alcohol by volume, consisting of wine and plain, sparkling or
carbonated water and containing any one or more of the following:
(1) Nonalcoholic beverages;
(3) Coloring materials;
(4) Fruit juices;
(5) Fruit adjuncts;
(7) Carbon dioxide;
(q) "Mixed spirit drink" means a drink containing ten percent
or less alcohol by volume consisting of distilled spirits mixed
with nonalcoholic beverages or flavoring or coloring materials and
which may also contain water, fruit juices, fruit adjuncts, sugar,
carbon dioxide or preservatives; or any spirits-based beverage,
regardless of the percent of alcohol by volume, that is
manufactured for sale in a metal container.
§20-10-3. Nonreturnable containers; deposits; refunds; etc.
(a) A dealer within this state may not sell, offer for sale or
give to a consumer a nonreturnable container or a beverage in a
(b) A dealer who regularly sells beverages for consumption off
the dealer's premises shall collect a deposit on containers equal
to ten cents. Collected deposits will be submitted to the State
Treasury on a monthly basis.
(c) Regional or county centers for the redemption of
returnable containers will provide a means whereby the containers
of any kind, size and brand sold or offered for sale by the dealer
may be returned, and the deposit refunded in cash to any person.
(d) A dealer who does not require a deposit on a returnable
container when the contents are consumed in the dealer's sale or consumption area is not required to pay a refund for accepting that
(e) Each beverage container sold or offered for sale by a
dealer within 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. A dealer, distributor or redemption center may, but is not
required to, refuse to accept from a person an empty returnable
container which does not state on the container the refund value of
the container and the name of this State. This subsection does not
apply to a refillable container having a refund value of not less
than ten cents, having a brand name permanently marked on it,
having a securely affixed method of indicating that it is a
(f) 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. This subsection does not prohibit a
redemption center from refunding the deposit on an empty returnable
container each time the returnable container is sanitized by the
manufacturer and reused as a beverage container.
(g) A redemption center may accept, but is not required to
accept, from a person, empty returnable containers for a refund in
excess of twenty-five dollars on any given day.
(h) The State Treasurer will refund the deposit to the
redemption center plus a three cent per container handling fee.
§20-10-4. Redemption centers.
(a) Prior to operation, redemption centers shall be certified
by the commission.
(b) Applicants for certification as a redemption center shall
be filed with the Department of Health and Human Resources on forms
prescribed by the Department.
(c) The State, 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 State may withdraw
the certification of the center if it finds that there has not been
compliance with applicable laws, rules, permit conditions, or
(d) Redemption centers shall:
(1) Accept all types of empty deposit beverage containers for
which a deposit has been paid.
(2) Verify that all containers to be redeemed bear a valid
West Virginia refund value;
(3) Pay to the redeemer at minimum the full refund value for
all beverage containers, except as provided in section six of this
(4) Crush or destroy all deposit beverage containers that are accepted at the time of redemption;
(5) Ensure each container collected is recycled through a
contractual agreement with an out-of-state recycler or an instate
recycling facility permitted by the Department; provided that this
paragraph shall not apply if the redemption center is operated by
a recycler permitted by the Department; and
(6) Forward the documentation necessary to support claims for
payment as stated in section seven of this article.
(e) Redemption centers? redemption areas shall be maintained
in full compliance with applicable laws and with the orders and
rules of the Department, including permitting requirements, if
§20-10-5. Reverse vending machine requirements.
Reverse vending machines may be used by redemption centers
provided that the reverse vending machine shall accept any type of
empty deposit beverage container and pay 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 deposit
beverage containers accepted by a reverse vending machine shall
either be crushed or destroyed at the point of redemption.
§20-10-6. Refusal of refund value payment for a deposit beverage
Redemption centers shall refuse to pay the refund value on any
broken, corroded, dismembered, flattened deposit beverage
container, or any deposit beverage 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.
§20-10-7. Redemption center reporting.
The State Treasurer shall pay certified redemption centers
handling fees and refund values as described in section three,
article ten, chapter twenty of this code, based on collection
reports submitted by the redemption centers. All redemption
centers shall submit to the Department information on forms
prescribed by the Department. Information shall include at a
(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;
(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, shall also be
The requests for payment shall be no more frequent than two
times per month. Beginning the first day of January, two thousand
six, each center shall report the previous quarter?s information no
later than thirty days after the end of that quarter so that the
handling rate can be calculated. Failure to timely submit the
report shall postpone payment for those containers until they are
timely submitted for a subsequent quarter.
§20-10-8. Report; filing; form and contents.
(a) A dealer that originates a deposit on a beverage container
must file a report with the State Treasurer, not later than the
first day of March, two thousand six, and not later than the first
day of March of each year thereafter, 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 indicate for the period of the first day of
January, two thousand six, to the thirty-first day of December, two
thousand six, and for the time period of the first day of January
to the thirty-first day of December of each year thereafter, the
dollar value of both the total deposits collected by the dealer on
beverage containers sold within this State.
§20-10-9. Bottle deposit fund; creation; administration; deposits;
annual disbursement; report of information; rules.
(a) There is created in the State Treasury a bottle deposit
fund which is a revolving fund administered by the State Treasurer. The money in the bottle deposit fund may not revert to the general
(b) The amount paid to the Tax Division of the Department of
Revenue by dealers shall be deposited by the Tax Commissioner in
the bottle deposit fund created in subsection (a) of this section
for annual disbursement by the State Treasurer in the following
(1) 13 cents per container to certified redemption centers;
(2) $1,000,000 to remain in revolving fund to administer
(3) Remaining funds to go to the community litter control
(c) The State Treasurer shall publish and make available to
the public, not later than the first day of June of each year,
information related to section eight of this article and send a
report of that information to the Legislature.
(d) The State Treasurer shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine of this code to implement sections eight and
nine of this article.
§20-10-10. Unclaimed deposits.
Unclaimed deposits on returnable containers are considered to
be the property of the person purchasing the returnable container
and are not the property of the dealer who originated the deposit.
§20-10-11. Community Litter Control Fund.
(a) The Community Litter Control Fund is hereby created within
the Division of Natural Resources.
(b) The Division of Natural Resources may receive money or
other assets from any source for deposit into the Community Litter
Control Fund. The Division of Natural Resources shall direct the
investment of the Community Litter Control Fund. The Division of
Natural Resources shall credit to the Community Litter Control Fund
interest and earnings from fund investments.
(c) Money in the community litter control fund at the close of
the fiscal year must remain in the Community Litter Control Fund
and may not lapse to the general revenue fund.
(d) The Division of Natural Resources may expend interest and
earnings of the Community Litter Control Fund only, upon
appropriation, for grants for the purpose of creating and expanding
recycling programs. The Division of Natural Resources may enter
into contractual agreements with grant recipients, who include
county governments, local health departments, municipalities, and
regional planning agencies. Activities to be performed by grant
recipients and program objectives and deliverables must be
specified in the contractual agreements. Grant recipients must
provide a financial match of not less than twenty-five percent.
Not more than one hundred thousand dollars may be granted in any
fiscal year to a single recipient.
(e) The Division of Natural Resources shall annually prepare
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 the
thirtieth day of September, two thousand six, and the thirtieth day
of September of each year thereafter, and shall provide a copy of
this report to the chairs of the House and Senate appropriations
subcommittees for the Division of Natural Resources.
§20-10-12. Violation; penalty; separate offense.
Except as provided in section thirteen of this article, a
person, dealer, distributor or manufacturer who violates this
article is subject to a fine of not less than one hundred dollars
or more than one thousand dollars and is liable for the costs of
prosecution. Each day a violation occurs, a separate offense is
§20-10-13. Prohibited return; violation; penalty.
(a) A person may not return or attempt to return to a dealer
for a refund one or more of the following:
(1) A beverage container that the person knows or should know
was not purchased in this State as a filled returnable container.
(2) A beverage container that the person knows or should know
did not have a deposit paid for it at the time of purchase.
(b) A person who violates subsection (a) above is subject to
one of the following:
(1) If the person returns twenty-five or more but not more
than one hundred nonreturnable containers, the person is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not more
than one hundred dollars.
(2) If the person returns more than one hundred nonreturnable
containers or violates subdivision (a) above for a second or
subsequent time, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than five hundred
(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.
§20-10-14. Posting notice on redemption center?s 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
five hundred dollars and restitution." A redemption center that
fails to comply with this section is subject to a fine of not more
than fifty dollars.
NOTE: The purpose of this bill is to require the use of
returnable containers for soft-drinks, soda water, carbonated
natural or mineral water, other nonalcoholic carbonated drinks and for beer, ale or other malt drinks of any alcoholic content and for
certain other beverage containers; to require the use of unredeemed
bottle deposits; prescribe the powers and duties of certain state
agencies and officials; and to prescribe penalties and remedies.
This article is new; therefore, strike-throughs and
underscoring have been omitted.