Senate Bill No. 266

(By Senator Grubb)

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[Introduced March 3, 1993;

referred to the Committee on Energy, Industry and Mining.]

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A BILL to amend chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twelve, relating to beverage container control; legislative intent; definitions; refund value; mandatory acceptance; refusal of acceptance; container requirements; redemption centers; rules; civil and criminal penalties; governor's incentive award; and educational programs.

Be it enacted by the Legislature of West Virginia:

That chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twelve, to read as follows:
ARTICLE 12. WEST VIRGINIA CONTAINER ACT OF 1993.

§20-12-1. Short title.

This article may be known and referred to as "The West Virginia Container Act of 1993".
§20-12-2. Legislative findings.

The Legislature hereby finds and declares that a well- administered container deposit law creates, and it is the intent of the Legislature to create, incentives for the distributors, dealers and consumers of beverage containers to reuse and recycle such beverage containers; thus, removing the blight and hazard on the landscape, roads and highways of the state of West Virginia and reducing the increasing economic, social, environmental burden and cost of such litter collection and disposal. Further, it is the intent of the Legislature to promote the general economic welfare of the state through the creation of employment through the manufacture, shipment, storage and processing of reusable beverage containers within the state.
Furthermore, the Legislature hereby finds and declares that glass, metal and plastic beverage containers constitute a significant portion of the solid waste stream disposed of in the state's already overburdened sanitary landfills or irresponsibly discarded as litter along roadsides, on farm properties, in parks and throughout the environment; that the removal and reuse or recycling of this component of the waste stream would substantially extend the useful life of the landfills of the state, reduce the safety hazard of broken glass and metal fragments, mitigate the costs to the agricultural industry of repairing damaged equipment, livestock losses and lost productive work time, provide a more attractive landscape and reduce the financial burden of municipalities charged with the responsibility of cleaning up the state's already serious litter problem; that the reuse or recycling of these containers providesan energy efficient and environmentally sound means of achieving these goals; and that it is, therefore, in the public interest to establish a state program to promote the return and recycling of beverage containers.
§20-12-3. Definitions.

Whenever used in this article:
(a) "Beverage" means carbonated soft drinks, mineral water, soda water, beer and other malt beverages. "Malt beverages" means any beverage obtained by the alcoholic fermentation or infusion or decoction of barley, malt, hops or other wholesome grain or cereal and water, including, but not limited to, ale, stout or malt liquor.
(b) "Beverage container" means the individual, separate, sealed glass, metal, aluminum, steel or plastic bottle, can or jar used for containing one gallon or three and eight-tenths liters or less at the time of sale of a beverage intended for use or consumption in this state. Beverage containers sold or distributed aboard aircraft shall be considered as intended for use or consumption outside this state.
(c) "Dealer" means every person who engages in the sale within this state of beverages in beverage containers to a consumer for off-premises consumption, including any distributor engaging in retail sales.
(d) "Department" means the state department of natural resources.
(e) "Director" means the director of the state department of natural resources.
(f) "Distributor" means any person who bottles, cans or otherwise fills or packages beverage containers for retail sale in this state or who engages in the sale at wholesale of such containers to a dealer in this state.
(g) "Industry" means a person manufacturing a beverage container which is subsequently bottled, canned or filled for sale to distributors or retailers or consumers within the boundaries of the state of West Virginia.
(h) "Person" has the meaning provided in section ten, article two, chapter two of this code.
(i) "Place of business" means the location at which a dealer sells or offers for sale beverages in beverage containers to consumers.
(j) "Redeemer" means every person who demands the refund value provided for herein in exchange for the empty beverage container, but shall not include a dealer or distributor as defined in subdivision (c) of this section.
(k) "Redemption center" means any establishment offering to pay the refund value of a beverage container under the provision of section seven of this article.
(l) "Use or consumption" means the exercise of any right or power incident to the ownership of a beverage, other than the sale or the keeping or retention of a beverage for the purpose of sale.
§20-12-4. Prohibition on certain containers.

(a) Except as otherwise provided in this article, no distributor or dealer may, after the first day of January, onethousand nine hundred ninety, sell or offer for sale (1) beverage containers for which a refund value is not indicated as provided in section five of this article, (2) metal beverage containers having parts detachable in opening the container, and (3) beverages packaged by means of plastic loop retainers.
(b) No distributor or dealer may sell or offer for sale, at wholesale or retail in this state, any metal beverage container so designed and constructed that a part of the container is detachable in opening the container.
(c) No distributor or dealer may sell or offer for sale in this state beverage containers connected to each other by a separate holding device constructed of plastic which does not decompose by photodegradation or biodegradation.
§20-12-5. Refund value.

Notwithstanding any other provision of this code, every beverage container sold or offered for retail sale after the first day of January, one thousand nine hundred ninety, in this state shall have a refund value of not less than five cents, except that plastic containers with a capacity of one quart or greater shall have a refund value of not less than twenty-five cents.
§20-12-6. Beverage container requirements.

Every beverage container sold or offered for sale in this state by a distributor or dealer shall clearly indicate by permanently marking or embossing on the container or by printing as part of the product label the refund value of the container and the words "West Virginia" or the letters "WV" except that inthe case of private label beverages, such information may be embossed or printed on a label which is securely or permanently affixed to the beverage container. Private label beverages are beverages purchased from a beverage manufacturer in beverage containers bearing a brand name or trademark for sale at retail directly by the owner or license of such brand name or trademark; or through retail dealers affiliated with such owner or licensee by a cooperative or franchise agreement.
Such embossing or permanent imprinting on the beverage container shall be the responsibility of the person which bottles, cans or otherwise fills or packages a beverage container or a brand owner for whose exclusive account private label beverages are bottled, canned or otherwise packaged: Provided, That the duly authorized agent of any such person may indicate such refund value by a label securely affixed on any beverage container containing beverages imported into the United States.
§20-12-7. Redemption centers.

(a) The director is hereby empowered and directed to promulgate rules for the establishment of redemption centers at which redeemers and dealers may return empty beverage containers and receive payment of the refund value of such containers.
(b) The director shall issue permits for operation of such redemption centers to those persons who satisfy the requirements of this section, except that all such redemption centers shall conform to applicable provisions of local and state law that are not at variance with the intent of this article.
(c) No person may operate any redemption center foracceptance of empty beverage containers without first obtaining a permit from the director pursuant to this section, except that nothing in the section prohibits a dealer or distributor from operating a redemption center without first obtaining such a permit if such center is located at the same location as the dealer's or distributor's place of business.
§20-12-8. Mandatory acceptance by dealer.

(a) Except as otherwise provided in this article, a dealer shall accept from a redeemer at the dealer's place of business, during normal business hours of that place of business, any empty beverage container of the design, shape, size, color, composition and brand sold by that dealer at that place of business, and shall pay to the redeemer the refund value of each such beverage container as established by section four of this article.
(b) The director is hereby empowered and directed to promulgate rules governing the circumstances under which dealers are required to accept the return of empty beverage containers from redeemers. Such rules shall require dealers to accept the return of empty beverage containers from redeemers as required in subsection (a) of this section, except that such rules may allow dealers to refuse acceptance of beverage containers offered during the first and last half hours of the dealer's business day.
(c) No dealer may be required to accept more than one hundred twenty empty beverage containers from one individual redeemer during any one business day.
§20-12-9. Mandatory acceptance by distributor; additional fee.

(a) A distributor may not refuse to accept from a dealer or operator of a redemption center any empty beverage containers of the design, shape, size, color, composition and brand sold by the distributor, and shall pay the dealer or operator of a redemption center the refund value of each such beverage container as established by section four of this article.
(b) In addition to the refund value of a beverage container as established by section four of this article, a distributor as part of its agreement with any dealer or operator of a redemption center shall reimburse such dealer or operator two cents for each beverage container accepted by the distributor from such dealer or operator of a redemption center.
(c) A distributor who initiates a deposit on a beverage container must reimburse any other distributor who redeems such container for the deposit and handling fee paid by the redeeming distributor.
§20-12-10. Right to refuse acceptance.

(a) A dealer or operator of a redemption center may refuse to accept from a redeemer, and a distributor may refuse to accept from a dealer or operator of a redemption center, any beverage container which does not state thereon a refund value as required by section five and established by section four of this article.
(b) A distributor, dealer or operator of a redemption center may refuse to accept any broken bottle, corroded or dismembered can; except that, for the purposes of this section, beverage containers usable for recycling purposes, including, but not limited to, dented or flattened plastic or metal containers orchipped glass containers, shall be acceptable for refund and may not be refused.
(c) No distributor, dealer or operator of any redemption center may be required to accept for refund any beverage container which contains any substance other than dried beverage residue, or accept for refund any bottle that would constitute a health hazard upon the premises of that distributor, dealer or operator of any redemption center.
§20-12-11. Rules.

In addition to other powers granted the director in this article, the director shall have, in addition to rule-making authority in sections six and seven of this article, the power to promulgate rules governing the initiation of deposits, sale of beverages in containers through vending machines and for on- premises consumption, record keeping, refunding for refillable beverage containers, embossing, imprinting or labeling of refunding values and other such rules necessary and proper to the implementation and enforcement of this article.
§20-12-12. Penalties.

(a) Any person who violates any of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars.
(b) In addition to the criminal penalty herein provided, any person who violates any provisions of this article shall be liable for a civil penalty of not more than five hundred dollars, and an additional civil penalty of not more than five hundreddollars for each day during which each such violation continues. Any civil penalty may be assessed following a hearing or opportunity to be heard.
§20-12-13. Governor's incentive award.

The governor's office shall award at the conclusion of each calendar year beginning with the year one thousand nine hundred ninety-four, an award to one business or industry from each of the four state congressional districts. This award shall be made to individuals, organizations, businesses or industries for diligence in furthering the goals of this article.
§20-12-14. Educational programs.

(a) State informational material such as travel pamphlets, road maps and similar publications submitted for printing on or after the first day of July, one thousand nine hundred ninety- four, shall bear information relating to this article. This information shall take the form of a standard public statement relating to the deposit law provided by the director.
(b) The state board of education may incorporate information on this article in educational material which it normally distributes to primary and secondary schools within the state. The state board of education may cooperate with the director in distributing any additional informative material on this article to schools in the state.



NOTE: The purpose of this bill is to require deposits and refunds on returnable bottles and containers. The bill sets the deposit amount and bottle or container requirements. The Director of the Department of Natural Resources administers thearticle.

This article is new; therefore, strike-throughs and underscoring have been omitted.