READ FIRST TIME 02/20/13.   

     AN ACT Relating to adopting the Washington small rechargeable battery stewardship act; adding a new chapter to Title 70 RCW; creating a new section; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that it is in the public interest of the citizens of Washington to encourage the recovery and reuse of materials, such as metals, that replace the output of mining and other extractive industries.
     (2) The legislature further finds that it is desirable to reduce the volume of the solid waste stream and resulting burdens on municipalities.
     (3) The legislature further finds that ensuring the proper handling and recycling of used small rechargeable batteries prevents the release of certain toxic materials into the environment and removes from the waste stream certain materials that may present safety concerns if mishandled.
     (4) The legislature further finds that it is important to ensure that all entities supplying small rechargeable batteries to users in Washington, whether as stand-alone units or as easily removable components of products, bear the same battery stewardship obligations.
     (5) The legislature further finds that addressing certain existing and future barriers to implementation of voluntary industry programs to collect and recycle used small rechargeable batteries will facilitate these interests.
     (6) The legislature further finds that the opportunity exists for the state of Washington to encourage the continuation of existing private mechanisms that ensure the proper stewardship of used small rechargeable batteries, while avoiding any burden on the state for enforcement responsibilities.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Battery pack" means an assembly of small rechargeable batteries, together weighing less than eleven pounds, that are packed in a container that has a single positive and negative connection.
     (2) "Bona fide used small rechargeable battery stewardship program" or "bona fide program" means a program for the collection, transportation, recycling, and disposal of used small rechargeable batteries that meets the criteria set forth in section 5 of this act.
     (3) "Easily removable" means readily detachable by a consumer with the use of common household tools or without the use of tools.
     (4) "Manage" means to run or direct the functioning of a bona fide used small rechargeable battery stewardship program, other than as a retailer or as a franchisor on behalf of its franchisees, on behalf of more than one marketer or manufacturer.
     (5) "Manager" means a person who conducts activities described in the definition of manage in this section.
     (6) "Manufacture or market" means to perform one of the following acts, other than as a retailer:
     (a) Manufacture, or arrange for the manufacturing of, small rechargeable batteries or portable rechargeable products sold, offered for sale, or distributed in Washington under a brand name owned or licensed by the manufacturer or the person who arranges for manufacturing;
     (b) Package, or arrange for the packaging of, small rechargeable batteries or portable rechargeable products sold, offered for sale, or distributed in Washington under a brand name owned or licensed by the packager or the person who arranges for packaging;
     (c) Import into the United States small rechargeable batteries or portable rechargeable products sold, offered for sale, or distributed in Washington under a brand name owned or licensed by the importer or the person who arranges for the importation; or
     (d) Otherwise make available to wholesalers or retailers in Washington small rechargeable batteries either as replacement batteries or as easily removable components in portable rechargeable products.
     (7) "Manufacturer or marketer" means every person who conducts activities described in the definition of manufacture or market in this section.
     (8) "Nonenrolled battery" means a small rechargeable battery that is not manufactured or marketed by any person who self-operates, manages, or participates in a bona fide used small rechargeable battery stewardship program.
     (9) "Participate" means to appoint a manager to act as a representative to administer a bona fide used small rechargeable battery stewardship program on one's behalf and to have that appointment accepted by the manager of the bona fide program.
     (10) "Person" means a sole proprietorship, partnership, corporation, nonprofit corporation or organization, limited liability company, firm, association, cooperative, or other legal entity located within or outside Washington.
     (11) "Portable rechargeable product" means a product, other than a medical device as defined in RCW 19.210.010, that is packaged with, or contains, one or more easily removable small rechargeable batteries at the time it is sold or offered for sale.
     (12) "Retailer" means every person who sells or offers to sell small rechargeable batteries or portable rechargeable products at retail through any means including, but not limited to, remote offerings such as sales outlets, catalogs, or the internet. The term retailer does not include a person who engages solely in wholesale transactions with a distributor or manufacturer.
     (13) "Self-operate" means to run or direct the functioning of a bona fide used small rechargeable battery stewardship program as a retailer or franchisor on behalf of oneself or one's franchisees.
     (14) "Self-operator" means a retailer or franchisor who conducts activities described in the definition of self-operate in this section.
     (15) "Small rechargeable battery" means:
     (a)(i) Except as described in (b) of this subsection, one or more voltaic or galvanic cells, together weighing less than eleven pounds, that are electrically connected to produce electric energy and are designed to be recharged; or
     (ii) Except as described in (b) of this subsection, a battery pack.
     (b) "Small rechargeable battery" does not include:
     (i) A battery that is not easily removable or is not intended or designed to be removed from the product, other than by the manufacturer;
     (ii) A battery that contains electrolyte as a free liquid; or
     (iii) A battery or battery pack that employs lead acid technology, unless the battery or battery pack:
     (A) Is sealed;
     (B) Contains no liquid electrolyte; and
     (C) Is intended by its manufacturer or marketer to power a handheld device or to provide uninterrupted backup electrical power protection for stationary consumer products or stationary office equipment.

NEW SECTION.  Sec. 3   (1) Except as authorized by subsection (2) of this section, a person may not sell or make available to a wholesaler or retailer for sale in Washington a nonenrolled battery, whether as a replacement battery or as a component of a portable rechargeable product.
     (2) This section does not apply to the activities of a telecommunications provider for equipment marketed under a brand it owns that contains small rechargeable batteries.

NEW SECTION.  Sec. 4   (1) The self-operator or manager of a bona fide used small rechargeable battery stewardship program that incurs costs, including incremental administrative and other costs, in excess of three thousand dollars to collect, transport, and reclaim nonenrolled batteries collected in Washington may bring a civil action or actions to recover costs, damages, and fees, as specified in this section, from any manufacturer or marketer who sold in Washington or made available to a wholesaler or retailer for sale in Washington those nonenrolled batteries.
     (2) An action under this section may be brought against one or more defendants.
     (3) It is a defense to liability under this section that another manufacturer or marketer of the allegedly nonenrolled battery self-operates, manages, or participates in a bona fide program.
     (4)(a) In any action under this section, the self-operator or manager may recover from the manufacturer or marketer of nonenrolled batteries the costs the self-operator or manager incurred in collecting, handling, recycling, or properly disposing of nonenrolled batteries that are reasonably identified as having been manufactured or marketed by the defendant manufacturer or marketer.
     (b) In addition to the costs identified in (a) of this subsection, the self-operator or manager may also recover an amount of damages equal to no more than three times the costs identified in (a) of this subsection, plus attorneys' fees and costs of litigation.
     (5) An action under this section to recover the costs specified in this section may be brought in any superior or district court in the state.

NEW SECTION.  Sec. 5   (1) A program for the collection, transportation, recycling, and disposal of used small rechargeable batteries is a bona fide used small rechargeable battery stewardship program for purposes of this chapter if it is either:
     (a) A self-operated program that meets the requirements of subsection (2) of this section and collects used small rechargeable batteries regardless of brand at all retail locations in Washington at which the retailer or franchisees sell small rechargeable batteries or portable rechargeable products; or
     (b) A program managed on behalf of more than one participating manufacturer or marketer that meets the requirements of subsections (2) and (3) of this section.
     (2) All bona fide programs must meet the following operational conditions:
     (a) All used small rechargeable batteries collected by the bona fide program are handled by the program self-operator or manager in compliance with all applicable laws and rules and transported only to lawfully permitted facilities for reclamation of battery constituents;
     (b) All contracts with service providers entered into by the bona fide program self-operator or manager require compliance with all applicable laws and rules;
     (c) All return acceptance, recycling, and other handling services, including postcollection transportation, are provided free of charge to consumers;
     (d) Education and outreach activities are provided by the bona fide program to maximize collections and safety, including the offering of signage to retailers indicating the retailer's support of the bona fide program and providing instructions and materials to protect collected used batteries from short circuits;
     (e) The bona fide program is open to the public:
     (i) For a self-operated program, during all hours the retailer or franchisor does business; or
     (ii) For a program managed on behalf of more than one participating manufacturer or marketer, during all hours that collection locations normally do business; and
     (f) The following information is provided on the internet:
     (i) The name, address, and contact information for its self-operator or manager;
     (ii) A description of the methods used to collect, transport, and account for all used small rechargeable batteries collected that includes the identification of all sorting and reclamation facilities to be used through final disposition for sorting and reclamation of all used small rechargeable batteries collected;
     (iii) Identification of locations served by the bona fide program where Washington residents may take used small rechargeable batteries and information on what restrictions, if any, will be imposed on the number of used small rechargeable batteries that may be returned;
     (iv) A description of the mechanism by which the bona fide program will handle inquiries from consumers;
     (v) Information regarding education and outreach activities;
     (vi) An invitation for consumers to provide comments on the adequacy and convenience of the bona fide program and instructions on how to do so;
     (vii) A description of material changes to the bona fide program from previous program activities; and
     (viii) An annual report, current as to no later than April 1st of each year, that identifies:
     (A) The bona fide program's funding and recycling success, including any increase in total batteries collected each year, the cost of the bona fide program per pound of batteries collected, and the cost of the bona fide program per Washington resident;
     (B) The bona fide program's collections by county and battery chemistry;
     (C) The bona fide program's educational and outreach activities;
     (D) The mechanisms employed and the entities involved in the final disposition of collected materials; and
     (E) The methods used to collect, transport, and account for all used small rechargeable batteries collected, including the identification of all sorting and reclamation facilities used.
     (3) If the bona fide program is not a self-operated program, it must also meet the following additional operational conditions:
     (a) Provide at least one used small rechargeable battery collection site in each county of the state and in each city or town with a population greater than ten thousand, which may be the same as the location in a county;
     (b) Include retailer collection of used small rechargeable batteries regardless of brand at multiple locations;
     (c) Provide for the collection of used small rechargeable batteries regardless of brand from governmental collection facilities;
     (d) Include on its internet site:
     (i) A collection site locator to assist consumers in finding the nearest collection site;
     (ii) Identification of all small rechargeable battery manufacturers and marketers that currently are participating in the bona fide program; and
     (iii) Information on how small rechargeable battery manufacturers and marketers and consumers may seek technical assistance from the bona fide program; and
     (e) Include in its annual report required by subsection (2)(f)(viii) of this section an independently audited financial statement, including a breakdown of bona fide program expenses such as collection, recycling, education, and overhead, unless the bona fide program is part of a program that also operates in jurisdictions outside of Washington, in which case funding information and audited financial statements need not be reported on a Washington-specific basis, but average bona fide program-wide costs of collection and overhead must be clearly stated.

NEW SECTION.  Sec. 6   This chapter is void if a federal law, or a combination of federal laws, takes effect that establishes a national program for the collection and recycling of both used nonrechargeable batteries and used small rechargeable batteries.

NEW SECTION.  Sec. 7   Nothing in this chapter alters or limits the authority of the utilities and transportation commission to regulate collection of solid waste, including curbside collection of residential recyclable materials, nor does this chapter alter or limit the authority of a city or town to provide such services itself or by contract under RCW 81.77.020.

NEW SECTION.  Sec. 8   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 9   Sections 2 through 7 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION.  Sec. 10   This act takes effect January 1, 2014.