H. B. 2761


(By Delegate Warner)
[Introduced January 29, 2003; referred to the
Committee on the Judiciary then Finance.]




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 ten, relating to providing for 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; providing for 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 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 ten, to read as follows:
ARTICLE 10. WEST VIRGINIA BEVERAGE CONTAINER DEPOSIT ACT.
§20-10-1. Definitions.
As used in this article:
(a) "Beverage" means a soft drink, soda water, carbonated natural or mineral water or other nonalcoholic carbonated drink; beer, ale or other malt drink of whatever alcoholic content; or a mixed wine drink or a mixed spirit drink.
(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 dealer or distributor 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 who sells or offers for sale to consumers within this state a beverage in a beverage container, including an operator of a vending machine containing a beverage in a beverage container.
(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) "Manufacturer" means a person who bottles, cans or otherwise places beverages in beverage containers for sale to distributors, dealers or consumers.
(k) "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.
(l) "Commission" means the alcohol beverage control commission.
(m) "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.
(n) "Nonrefillable container" means a returnable container which is not intended to be refilled for sale by a manufacturer.
(o) "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;
(2) Flavoring;
(3) Coloring materials;
(4) Fruit juices;
(5) Fruit adjuncts;
(6) Sugar;
(7) Carbon dioxide;
(8) Preservatives.
(p) "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.
§20-10-2. 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 nonreturnable container.
(b) A dealer who regularly sells beverages for consumption off the dealer's premises shall provide on the premises, or within one hundred yards of the premises on which the dealer sells or offers for sale a beverage in a returnable container, a convenient means whereby the containers of any kind, size and brand sold or offered for sale by the dealer may be returned by, and the deposit refunded in cash to, a person whether or not the person is the original customer of that dealer, and whether or not the container was sold by that dealer.
(c) Regional or county centers for the redemption of returnable containers may be established as substitutes for the means established for refunds of deposits prescribed in subsection (b) of this section.
(d) Except as provided in subsections (c), (e) and (f) of this section, a dealer must accept from a person an empty returnable container of any kind, size and brand sold or offered for sale by that dealer and pay to that person its full refund value in cash.
(e) 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 empty container.
(f) Except as provided in subsection (g) of this section, a distributor must accept from a dealer an empty returnable container of any kind, size and brand sold or offered for sale by that distributor and pay to the dealer its full refund value in cash.
(g) 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, and having a securely affixed method of indicating that it is a returnable container.
(h) A dealer within this state may not sell, offer for sale or give to consumers a metal beverage container, any part of which becomes detached when opened.
(i) A person, dealer, distributor or manufacturer may not return an empty container to a dealer or redemption center for a refund of the deposit if a dealer has already refunded the deposit on that returnable container. This subsection does not prohibit a dealer 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.
(j) A dealer 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.
(k) A manufacturer licensed by the commission may not require a distributor licensed by the commission to pay a deposit to the manufacturer on a nonrefillable container. However, a manufacturer licensed by the commission and a distributor licensed by the commission may enter into an agreement providing that either or both may originate a deposit or any portion of a deposit on a nonrefillable container if the agreement is entered into freely and without coercion.
(l) A manufacturer must refund the deposit paid on any container returned by a distributor for which a deposit has been paid by a distributor to the manufacturer.
(m) Subsections (d), (e) and (f) of this section apply only to a returnable container that was originally sold in this state as a filled returnable container.
§20-10-3. Certification of beverage containers.
(a) To promote the use in this state of reusable beverage containers of uniform design, and to facilitate the return of containers to manufacturers for reuse as a beverage container, the commission shall certify beverage containers which satisfy the requirements of this section.
(b) A beverage container shall be certified if:
(1) It is reusable as a beverage container by more than one manufacturer in the ordinary course of business.
(2) More than one manufacturer will in the ordinary course of business accept the beverage container for reuse as a beverage container and pay the refund value of the container.
(c) The commission may not certify more than one beverage container of a particular manufacturer in each size classification. The commission shall by rule establish appropriate size classifications in accordance with the purposes set forth in subsection (a) of this section, each of which must include a size range of at least three liquid ounces.
(d) A beverage container may not be certified under this section:
(1) If by reason of its shape or design, or by reason of words or symbols permanently inscribed thereon, whether by engraving, embossing, painting or other permanent method, it is reusable as a beverage container in the ordinary course of business only by a manufacturer of a beverage sold under a specific brand name.
(2) If the commission finds that its use by more than one manufacturer is not of sufficient volume to promote the purposes set forth in subsection (a) of this section.
(e) Unless an application for certification under this section is denied by the commission within sixty days after the application is filed, the beverage container shall be considered certified.
(f) The commission may at any time review certification of a beverage container. If, upon the review, after written notice and hearing afforded to the person who filed the original application for certification of the beverage container under this section, the commission determines that the beverage container is no longer qualified for certification, it shall withdraw certification. Withdrawal of certification is effective on a date specified by the commission, but not less than thirty days after written notice to the person who filed the original application for certification of the beverage container under this section, and to the manufacturer referred to in subsection (b) of this section.
§20-10-4. Report; filing; form and contents.
(a) A distributor, manufacturer or regional redemption center 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 four, 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 four, to the thirty-first day of December, two thousand four, 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 distributor, manufacturer or redemption center on beverage containers sold within this state and total refunds made upon beverage containers redeemed by the distributor, manufacturer or redemption center of this state.
(c) The reports required to be filed pursuant to subsection (a) of this section must be similar to the following and contain the following information:
REPORT
DEPOSITS ORIGINATED AND REFUNDS GRANTED ON BEVERAGE CONTAINERS
Company Name:
Reporting

Period
Company address:
Number and Street
City, State, Zip
$
$
$

(Value of Deposits
(Value of Refunds

Originated)
Made)
(Difference)


$
$
$

(Difference)
(Overredemption
(Amount owed to

credit, if applicable)
department of

treasury)

The undersigned states that the above information is true and accurate.
Signature - Owner or President
Date
§20-10-5. Unclaimed bottle deposits; audit, assessment and collection by state tax commissioner; etc.

(a) The state tax commissioner may audit, assess and collect the amount of money reflecting unclaimed bottle deposits owed to this state, and enforce the obligation to pay the amount of money reflecting unclaimed bottle deposits owed to this state, in the same manner as revenues and according to the provisions of chapter eleven of this code.
(b) An underredeemer shall pay to the state division of the department of tax and revenue, not later than the first day of March, two thousand four, and not later than the first day of March of each year thereafter, that amount of money by which its annual total value of deposits exceeds its annual total value of refunds made on redeemed beverage containers, subject to the overredemption credit contained in this section.
(c) After the first day of March, two thousand four, an underredeemer who becomes an overredeemer in a subsequent year may credit the value of the overredemption in order to reduce the amount of money owed to the state division of the department of tax and revenue under this section in one or more subsequent years as a result of that person again becoming an underredeemer. The value of the overredemption may be carried forward for not more than three years or until the credit granted in this section is completely depleted, whichever occurs first.
(d) A manufacturer who no longer originates deposits may carry the value of an overredemption back for prior years in order to utilize its credits, and reduce the amount of underredemption owed to the state division of the department of tax and revenue under this section on a one time basis only. Utilization of this one time credit may be applied against underredemption amounts owed for reporting years commencing in two thousand three.
(e) As used in this section: (1) "Overredeemer" means a distributor or manufacturer whose annual total value of deposits collected on beverage containers sold within this state is less than the annual total value of refunds made upon beverage containers redeemed within this state.
(2) "Underredeemer" means a distributor or manufacturer whose annual total value of deposits collected on beverage containers sold within this state exceeds annual total value of refunds made upon beverage containers redeemed within this state.
(f) In addition to the report prescribed in this section, if an underredeemer purchases empty returnable containers from an overredeemer, that purchase must be reported by the underredeemer as a "refund made" and must be reported by the overredeemer as a "deposit originated" in the report prescribed by section four of this article. The report made by an underredeemer must include the name and address of each overredeemer and the refund value of the empty returnable beverage containers purchased from each overredeemer. The report made by an overredeemer must include the name and address of each underredeemer who purchased the returnable containers from that overredeemer and the refund value of the empty returnable beverage containers sold. The total consideration paid by an underredeemer to an overredeemer as authorized by this subsection must equal the redemption value of the container.
(g) A purchase or sale made under subsection (f) of this section during January of each year must be included in the report for the previous calendar year only.
§20-10-6. 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 revenue fund.
(b) The amount paid to the state division of the department of tax and revenue by underredeemers 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 manner: (1) Seventy-five percent to the cleanup and redevelopment trust fund created in section eight of this article.
(2) Twenty-five percent to dealers to be apportioned to each dealer on the basis of the number of empty returnable containers handled by a dealer as determined by the department of treasury.
(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 may 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.
§20-10-7. 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 distributor or manufacturer who originated the deposit.
§20-10-8. Cleanup and redevelopment fund.
(a) The cleanup and redevelopment trust fund is hereby created within the state treasury.
(b) The state treasurer may receive money or other assets from any source for deposits into the trust fund. The state treasurer shall direct the investment of the trust fund. The state treasurer shall credit to the trust fund interest and earnings from fund investments.
(c) Money in the trust fund at the close of the fiscal year must remain in the trust fund and may not lapse to the general revenue fund.
(d) The state treasurer shall annually disburse the following amounts from the trust fund:
(1) For each of the state fiscal years two thousand three-two thousand four, two thousand four-two thousand five and two thousand five-six, up to fifteen million dollars each year of money in the trust fund to the cleanup and redevelopment fund created in section eight of this article;
(2) In addition to the disbursements under subdivision (1) of this section, each state fiscal year, eighty percent of the revenues received by the trust fund from disbursements under section eight of this article to the cleanup and redevelopment fund and ten percent to the community pollution prevention fund created in section nine of this article.
(e) All money in the trust fund that is not disbursed pursuant to subsection (d) above shall remain in the trust fund until the trust fund reaches an accumulated principal of two hundred million dollars. After the trust fund reaches an accumulated principal of two hundred million dollars, interest and earnings of the trust fund only may be expended, upon appropriation, for the purposes specified in section twenty-five, article seven of this code (West Virginia litter control and recycling programs).
(f) As used in this section "trust fund" means the cleanup and redevelopment trust fund created in subsection (1).
§20-10-9. Community prevention fund.
(a) The community pollution prevention fund is hereby created within the state treasury.
(b) The state treasurer may receive money or other assets from any source for deposit into the community pollution prevention fund. The state treasurer shall direct the investment of the community pollution prevention fund. The state treasurer shall credit to the community pollution prevention fund interest and earnings from fund investments.
(c) Money in the community pollution prevention fund at the close of the fiscal year must remain in the community pollution prevention fund and may not lapse to the general revenue fund.
(d) The division of environmental protection may expend interest and earnings of the community pollution prevention fund only, upon appropriation, for grants for the purpose of preventing pollution, with an emphasis on the prevention of groundwater contamination and resulting risks to the public health, ecological risks and public and private cleanup costs. The division of environmental protection 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 environmental protection 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 four, 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.
§20-10-10. Violation; penalty; separate offense.
Except as provided in subsections (a) and (b), section four 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 committed.
§20-10-11. 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 dollars or imprisoned in the county or regional jail not more than ninety-three days, or both fined and imprisoned.
(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.
§20-10-12. Posting notice on dealer's premises; failure to comply; penalty.

A dealer shall post a notice in that portion of the dealer's premises where returnable containers are redeemed that says substantially the following: "A person who returns for refund an out-of-state nonreturnable container is subject to penalties of up to ninety-three days in a county or regional jail and a fine of five hundred dollars and restitution, or both fined and imprisoned." A dealer who 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 provide for 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. It also provides for the use of unredeemed bottle deposits; prescribes the powers and duties of certain state agencies and officials; and prescribes penalties and remedies.

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