Senate Bill No. 552
(By Senators McCabe, Unger and Hunter)
[Introduced February 17, 2003; referred to the Committee on
Natural Resources; and then to the Committee on 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
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
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.
(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
(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
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;
(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
(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
, 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,
, 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
(c) Public availability. -- The department may make available
to the public the information described in the report.
Deposit and refund; documentation; acceptable beverage
(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
(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.
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.
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.
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
recycling and litter control act
This article is new; therefore, strike-throughs and
underscoring have been omitted.