sb552 intr

Senate Bill No. 552
(By Senators McCabe, Unger and Hunter)
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[Introduced February 17, 2003; referred to the Committee on

Natural Resources; and then to the Committee on Finance.]
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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 ten, relating to establishing the "container recycling and litter control act".

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. CONTAINER RECYCLING AND LITTER CONTROL ACT.
§20-10-1. Short title.
This article may be cited as the "West Virginia Container Recycling and Litter Control Act of 2003."
§20-10-2. Purpose and findings.

The purpose of this article is to increase participation and recycling rates, provide a connection between manufacturing decisions and recycling program management, and reduce litter.

The Legislature finds that the beverage industry has an established and effective marketing infrastructure that provides a wide range of beverage products at affordable prices to consumers in West Virginia, and the absence of a beverage industry infrastructure for recovering used beverage containers has placed undue burdens on local waste authorities and failed to provide any incentive for the beverage industry to reduce waste which has resulted in millions of unrecycled beverage containers per year, including at least five hundred million unrecycled beverage containers in 1999. Glass beverage containers are difficult and costly to recycle through municipal curbside programs because of breakage; valuable beverage container types are being replaced with low-value plastics and composite packaging; and removing containers from curbside programs has been found to reduce the public costs of those programs.

The Legislature further finds that an efficient, industry- operated system of beverage container collection, recycling and reuse, would reduce the overall burden placed on taxpayers and municipal waste management systems, and shift the responsibility for that collection, recycling and reuse, to beverage producers and consumers. The deposit systems, originally devised by the beverage industry to recover used bottles, has been shown to be an effective and sustainable means for recovering used beverage containers, especially the increasing proportion of beverage containers which are consumed away from the home. The reuse and recycling of beverage containers would significantly improve the energy and emissions performance of the beverage industry, and in each year, conserve an amount of electrical energy equivalent to that required to serve thousands of West Virginia homes.

Eleven states have enacted and implemented laws designed to protect the environment, conserve energy and material resources, and reduce waste by requiring beverage consumers to pay a deposit on the purchase of beverage containers; and the beverage industry to pay a refund on used beverage containers that are returned for reuse and recycling. These laws have enjoyed strong public support and have proven to be effective in achieving high rates of beverage container reuse and recycling. Therefore, a statewide standard for beverage container reuse and recycling would ensure that beverage consumers in all regions of West Virginia would enjoy access to beverage container reuse and recycling services.
§20-10-3. Definitions.

(1) "Beverage" means a nonalcoholic or alcoholic carbonated or noncarbonated liquid that is intended for human consumption, excluding any milk or other diary or diary-derived product.

(2) "Beverage container" means a container constructed primarily of metal, glass, plastic, or paper (or a combination of those materials), with a capacity of not more than one gallon of liquid, that contains or may contain beverages sold or offered for sale or resale.

(3) "Beverage container agency" means a brand owner or an entity appointed by the brand owner to act as an agent on behalf of the brand owner.

(4) "Brand owner" means a person that owns the trademark, manufactures, distributes, or imports for resale, a beverage sold in a beverage container.

(5) "Department" means the department of natural resources.

(6) "Management plan" means a management plan submitted pursuant to section six of this article.

(7) "Recovery rate" means the percentage obtained by dividing
the number of beverage containers of a brand owner returned in this state for a refund in a calendar year by the number of beverage containers of the brand owner for which a deposit was collected in this state in the calendar year , pursuant to section seven of this article.

(8) "Refund value" means the refund value of a beverage container determined pursuant to section eight.

(9) "Return site" means an operation, facility, retail store, or an association of operations, facilities or retail stores, that
is identified in an approved management plan and is operating under contract entered into by the return site and a beverage container agency to collect and redeem empty beverage containers of one or more brand owners.

(10) "Seller" means a person that sells a beverage in a beverage container, including all members of the supply chain.

(11) "Unbroken beverage container" means a beverage container that has been opened in a manner in which the beverage container was designed to be opened.
§20-10-4. Responsibilities of brand owners.
Each brand owner shall implement an effective redemption, transportation, processing, marketing and reporting system for the reuse and recycling of used beverage containers of the brand owner. No brand owner or beverage container agency may dispose of any beverage container labeled pursuant to section five, in any landfill or other solid waste disposal facility.

§20-10-5. Beverage container labeling of refund value; promulgation of rules establishing uniform standards.

No brand owner may sell or offer for sale a beverage in a beverage container unless the refund value stated on the beverage container is clearly, prominently, and securely affixed to, printed on or embossed on the beverage container. The department of natural resources shall promulgate rules establishing uniform standards for the size and appropriate location on beverage containers of the refund value statement required by this section.

§20-10-6. Submission of management plans; contents; approval or disapproval; implementation; new brand owners; report; public availability.

(1) Submission of plans. -- No later than one hundred eighty days after the effective date of this article, each beverage container agency shall submit to the department, a management plan, by a form the department may prescribe, for the collection, transportation, reuse and recycling of beverage containers that the beverage container agency, or that each brand owner represented by the beverage container agency, sells in this state.

(2) Contents of plan. -- A management plan submitted by a beverage container agency pursuant to this section must include: (a) The name and address for service of process; (b) the name and title of a contact person at the beverage container agency; (c) the name and corporate address of each brand owner covered by the management plan; and (d) the brand name of each beverage covered by the management plan.

The management plan must provide a proposed implementation date for the management plan, and appropriate documentation of the agreements entered into by the beverage container agency and return site operators effective on the date of implementation of the management plan, including a description of the ways in which the beverage container agency intends to make the use of return sites convenient for consumers of beverages covered by the management plan and the ways in which the beverage container agency intends to achieve, not later than two years after the date of implementation of the management plan, a recovery rate of at least eighty percent; and the ways in which the beverage container agency will manage beverage containers returned under the management plan in an environmentally responsible manner.

(3) Changes in information. -- Each beverage container agency that submits a management plan pursuant to this section must promptly notify the department, in writing, of any changes in the information provided under subsection two (a)-(d).

(4) Approval of management plans. -- The department shall approve or disapprove each management plan submitted pursuant to this section. In determining whether to approve or disapprove a management plan, the department may return the management plan to the beverage container agency with a request for additional information or for amendment.

If the department disapproves a management plan, the administrator shall, not later than sixty days after the date of disapproval, provide to the beverage container agency submitting the management plan, a written explanation of the reasons for disapproval.

(5) Implementation of management plans. -- (a) A brand owner that, on or before the effective date of this article, is selling a beverage in a beverage container, must have in effect, not later than one hundred eighty days after the effective date of this article , a management plan that has been approved by the department, and implement the management plan in accordance with the implementation date proposed in the management plan.

(b) New brand owners. -- Any new brand owners that propose to sell a beverage in a beverage container, after the effective date of this article, must have , before the brand owner begins to sell the beverage, a management plan approved by the department, and implement the management plan in accordance with the implementation date proposed in the management plan.

(c) Prohibition. -- No brand owner may sell any beverage in a beverage container, except as provided by paragraph (a) or (b) of this subsection as appropriate, or on or after the implementation date proposed in a management plan of the brand owner pursuant to subsection two of this section, if the department has not approved the management plan.

(6) Report. -- (a) Each beverage container agency with an approved management plan and implemented pursuant to this article must, not later than the thirty-first day of March of each year after the implementation date of the management plan, submit to the department a report that describes the effectiveness of the management plan during the preceding calendar year.

(b) The report must include for each type of beverage container returned, the recovery rate expressed as a percentage and audited by an entity independent of the beverage container agency, including the annual financial statements, prepared by an entity independent of the beverage container agency, of all deposits received and refunds paid by each brand owner subject to the management plan.

§20-10-7. Deposit and refund; documentation; acceptable beverage containers.

(1)(a) Deposit. -- On and after the implementation date of any approved management plan to which a seller is subject, the seller shall collect from each purchaser of a beverage in a beverage container, at the time of sale, a deposit in an amount that is not more than the refund value of the beverage container. (b) Documentation. -- A deposit collected pursuant to this section shall be indicated on the receipt of the purchaser, if a receipt is given for the purchase, except when a beverage in a beverage container is sold for consumption, and is consumed, on the premises of the seller.

(2) Refund. -- On and after the implementation date of an approved management plan, a beverage container return site covered by the management plan must accept unbroken beverage containers for return and pay to a person returning beverage containers, an amount, in cash or in the form of a voucher redeemable for cash on demand, that is equal to the total of the refund values affixed to, printed on, or embossed on, each container returned by the person.

(3) Acceptable beverage containers. -- A return site may not be required to accept or pay a refund for a beverage container pursuant to this section if, as determined by the return site, the beverage container: (a) Is contaminated or, for hygienic reasons, is unsuitable for recycling; (b) can be reasonably identified as a container that was purchased outside the state; or (c) cannot be reasonably identified as a container to which this article applies.
§20-10-8. Refund value.

The refund value of a beverage container is ten cents.
§20-10-9. Recovery rates requirements; exemptions.

(a) Except as provided in subsections (b) and (c), in a case in which a brand owner complies with each provision of this article, but fails to achieve a recovery rate of at least eighty percent for beverage containers of the brand owner during a calendar year, the department may require that the beverage container agency of the brand owner pay the state an amount equal to the difference between the amount of deposits collected on beverage containers of the brand owner that were sold in the state and the amount of refunds paid on those beverage containers.

(b) Any brand owner that achieves a recovery rate of at least eighty percent under a beverage container deposit program, within the two-year period beginning on the effective date of this article, is exempt from the provisions of this article.

(c) Reuse rate adjustment. -- The minimum recovery rate required to be achieved by a brand owner pursuant to this section is reduced by one percentage point for each percentage point increase in the use by the brand owner of refillable beverage containers.

(d) Unclaimed deposits. -- Unclaimed deposits shall be distributed by the brand owner to the department. At least fifty percent of these moneys shall be used for purposes of establishing facilities to collect beverage containers covered under this legislation. In addition, unclaimed deposits will be used to fund administrative costs of managing this program, not to exceed one hundred thousand dollars a year.
§20-10-10. Arbitration; confidentiality; promulgation of rules.

(a) If a dispute arises under this article between a beverage container agency and a return site , and cannot be resolved, the beverage container agency or the return site shall refer the matter to binding arbitration.

(b) Notwithstanding any other provision of this article, each person acting under the authority of this article shall keep confidential all facts, information, and records obtained or provided pursuant to this article: Provided, That this section may not apply in a case in which public duty requires, or any rule promulgated by the director under this article permits, the disclosure of any facts, information, or records.

(c) Rules and procedures. -- The department may promulgate rules necessary to administer and implement this article.
§20-10-11. Report by department of natural resources.

No later than the thirty-first day of May, two thousand five, and annually thereafter, the department shall submit to the Legislature a report that describes the recovery rate for beverage containers during the year covered by the report and to the extent to which beverage container collection is proceeding in accordance with this article.
§20-10-12 . Penalties.

Notwithstanding any other provision of this article, any person that violates this article, except subsection six, section six of this article, is subject to a civil penalty of not more than one thousand dollars for each violation.

NOTE: The purpose of this bill is to establish the container recycling and litter control act .

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