BILL REQ. #:  S-0336.1 

Read first time 01/31/13.   Referred to Committee on Energy, Environment & Telecommunications.

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

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

NEW SECTION.  Sec. 1   The legislature finds and declares that:
     (1) 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) It is desirable to reduce the volume of the solid waste stream and resulting burdens on municipalities;
     (3) Ensuring the proper handling and recycling of used small rechargeable batteries prevents release of toxic materials into the environment and removes from the waste stream materials that may present safety concerns if mishandled;
     (4) 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) Addressing certain existing and future barriers to implementation of voluntary industry programs to collect and recycle used small rechargeable batteries will facilitate these interests.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Department" means the department of ecology.
     (2) "Easily removable" means readily detachable by a consumer without the use of tools or with the use of common household tools.
     (3) "Free rider used small rechargeable battery" means a used small rechargeable battery that under section 3 of this act must be covered by a qualified program, but as to which no manufacturer or marketer of the battery operated or participated in a qualified program at the time the used battery was collected.
     (4) "Multiparty program" means a Washington-only or multistate program that collects used small rechargeable batteries regardless of brand and has collected in Washington at least twenty thousand pounds of these batteries in the last twelve months and does so in each year thereafter, or is expected to collect at least twenty thousand pounds of used small rechargeable batteries in Washington in its first year of operation in Washington and each year thereafter.
     (5) "Nonrechargeable battery" means a battery that is not designed to be recharged for repeated use.
     (6) "Participate" means to appoint an organization to act as an agent to administer a qualified used small rechargeable battery stewardship program and to have that appointment accepted by the qualified program.
     (7) "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.
     (8) "Place of business" means a location at which a retailer sells or offers for sale small rechargeable batteries or portable rechargeable products to consumers.
     (9) "Portable rechargeable product" means a product that is packaged with or contains one or more easily removable small rechargeable batteries at the time it is sold or offered for sale, and is not a medical device as defined in RCW 19.210.010.
     (10) "Portable rechargeable product manufacturer or marketer" means every person that: (a) Manufactures or arranges for the manufacturing of portable rechargeable products sold, offered for sale, or distributed in Washington under a brand name it owns or licenses; (b) packages or arranges for the packaging of portable rechargeable products sold, offered for sale, or distributed in Washington under a brand name it owns or licenses; (c) imports into the United States portable rechargeable products that are sold, offered for sale, or distributed in Washington under a brand name it owns or licenses; (d) is a private label retailer; or (e) is not a retailer and otherwise makes available to purchasers in Washington portable rechargeable products.
     (11) "Private label retailer" means a retailer who sells small rechargeable batteries or portable rechargeable products under one or more brand names it owns or licenses.
     (12) "Qualified used small rechargeable battery stewardship program" or "qualified program" means a program for the collection, transportation, recycling, and disposal of used small rechargeable batteries that has been approved by the department under section 5 of this act. A qualified program may be either a retailer program or a multiparty program, as those terms are defined in this section.
     (13) "Rechargeable battery steward" means every small rechargeable battery manufacturer or marketer, a portable rechargeable product manufacturer or marketer, and a private label retailer.
     (14) "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, but does not include any sale that is a wholesale transaction with a distributor or manufacturer.
     (15) "Retailer program" means a program operated by a single retailer, without other sponsors, that collects used small rechargeable batteries regardless of brand at multiple locations and has collected at least five thousand pounds of these batteries in the United States in the last twelve months and does so in each year thereafter, or is expected to collect at least five thousand pounds of used small rechargeable batteries in the United States in its first year of operation and each year thereafter.
     (16) "Small rechargeable battery" means one or more voltaic or galvanic cells, electrically connected to produce electric energy and designed to be recharged and weighing less than eleven pounds, or an assembly of small rechargeable batteries in a container that has a single positive and negative connection (commonly known as a battery pack) that weighs less than eleven pounds, but does not include: (a) A battery that is not easily removable or is not intended or designed to be removed from the product, other than by the manufacturer; (b) a battery that contains electrolyte as a free liquid; or (c) a battery or battery pack that employs lead acid technology, unless the battery or battery pack: (i) Is sealed; (ii) contains no liquid electrolyte; and (iii) is intended by its manufacturer or marketer to power a hand-held device or to provide uninterrupted backup electrical power protection for stationary consumer products or stationary office equipment.
     (17) "Small rechargeable battery manufacturer or marketer" means every person that: (a) Manufactures or arranges for the manufacturing of small rechargeable batteries sold, offered for sale, or distributed in Washington under a brand name it owns or licenses; (b) packages or arranges for the packaging of small rechargeable batteries for sale, offering for sale, or distribution in Washington under a brand name it owns or licenses; (c) imports into the United States small rechargeable batteries that are sold, offered for sale, or distributed in Washington under a brand name it owns or licenses; (d) is a private label retailer; or (e) is not a retailer and otherwise makes available to purchasers in Washington small rechargeable batteries, whether as stand-alone items or otherwise.

NEW SECTION.  Sec. 3   (1) Except as provided in subsection (2) of this section, by January 1, 2014, any rechargeable battery steward who has a reasonable basis to know that any of the small rechargeable batteries or portable rechargeable products it manufactures or markets are being sold or offered for sale in Washington by retailers who do not operate a qualified program under section 5 of this act shall either:
     (a) Participate in a qualified multiparty program or retailer program described in section 5 of this act; or
     (b) Participate in a qualified multiparty program operated by another person as described in section 12 of this act.
     (2) This section does not apply to any telecommunications provider who markets equipment under a brand it owns that uses small rechargeable batteries that were manufactured by a participant in a qualified used small rechargeable battery stewardship program.

NEW SECTION.  Sec. 4   (1) Any person offering used small rechargeable battery recycling services in Washington shall comply with this section.
     (2) Any person offering used small rechargeable battery recycling services in Washington shall: (a) Comply with all legal and regulatory requirements applicable to the collection, storage, and transportation of such batteries; and (b) ship all used small rechargeable batteries it collects to lawfully permitted facilities that reuse the batteries as rechargeable power sources, arrange for the reuse of the batteries as rechargeable power sources, or reclaim constituents of the batteries for reuse.

NEW SECTION.  Sec. 5   (1) Any person who seeks to have either a retailer program or a multiparty program approved as a qualified program must submit to the department a plan for that program that meets the requirements of subsections (3) and (4) of this section. The plan must be submitted to the department at least ninety days prior to the date the person intends to begin operating the program as a qualified program. A plan submitted for a retailer program must be accompanied by a fee of three thousand dollars and that fee must be deposited into the used battery stewardship account created in section 10 of this act. A plan submitted for a multiparty program must be accompanied by a fee of five thousand dollars and that fee must be deposited into the used battery stewardship account created in section 10 of this act.
     (2) The department must acknowledge its receipt of any plan to operate a qualified program within fourteen days of receipt.
     (3) A retailer program plan or multiparty program plan submitted to the department must contain the following:
     (a) The name, address, and contact information for the operator of the qualified program;
     (b) A description of the qualified program that includes, along with any other information that the submitting person believes fairly describes the program, 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;
     (c) A certification that:
     (i) All used small rechargeable batteries collected by the plan will be handled by the submitting person in compliance with all applicable laws and rules, and that any used small rechargeable batteries shipped for reclamation by the plan submitter will be shipped only to lawfully permitted facilities;
     (ii) All contracts with service providers entered into by the submitting person do or will upon their effective date require compliance with all applicable laws and rules;
     (iii) Any used small rechargeable batteries shipped for reclamation by the service provider will be shipped only to lawfully permitted facilities;
     (iv) All return acceptance, recycling, and other handling services, including postcollection transportation, will be provided free of charge to consumers; and
     (v) If the plan is approved by the department in accordance with subsection (5) of this section, it will be implemented in accordance with the approved plan until such time as the approved plan is amended pursuant to subsection (8) of this section or terminated pursuant to subsection (10) of this section;
     (d) Identification of the locations that will be served by the program where Washington residents may take used small rechargeable batteries;
     (e) The process and timeline under which the operator of the qualified program will:
     (i) Coordinate the solicitation of public comment on its draft plan, including facilitating workshops and accepting verbal and written testimony; and
     (ii) Compile and review all public comments submitted on the draft plan and make appropriate revisions to the plan before finalizing the plan; and
     (f) The mechanisms by which the program will handle inquiries from consumers.
     (4) In addition to meeting the requirements of subsection (3) of this section, a multiparty program plan submitted to the department must also contain the following:
     (a) Identification of the small rechargeable battery manufacturers and marketers and the portable rechargeable product manufacturers or marketers that are currently participating, or plan to participate, in the program, and the means by which the program operator will track their participation;
     (b) Retailer collection of used small rechargeable batteries at multiple locations;
     (c) Collection of used small rechargeable batteries from governmental collection facilities;
     (d) The provision of at least one used small rechargeable battery collection site for each city or town with a population greater than ten thousand; and
     (e) Education and outreach activities to maximize collections, including the offering of signage to retailers indicating the retailer's support of the program.
     (5) The department must approve any plan that includes all of the applicable requirements specified in subsections (3) and (4) of this section. If the department fails to notify the person submitting the program plan within ninety days of receiving the plan that the program plan is either: (a) Approved; or (b) denied on the basis that it is incomplete, then the program is deemed an approved, qualified program.
     (6) Upon receiving approval from the department as a qualified program, the submitter of the qualified program plan must post on the internet:
     (a) Its program plan;
     (b) A rechargeable battery collection site locator to assist consumers in finding the nearest collection site;
     (c) For a multiparty program, a current list of the small rechargeable battery manufacturers and marketers and the portable rechargeable product manufacturers or marketers that are currently participating in the program; and
     (d) Contact information for the program, indicating how small rechargeable battery manufacturers and marketers, portable rechargeable product manufacturers or marketers, and consumers may seek technical assistance from the program.
     (7) By March 1st of the year following approval of a qualified program, and each year thereafter until the program is terminated, the operator of a qualified multiparty or retailer program must:
     (a) Pay to the used battery stewardship account established under section 10 of this act an annual fee of five thousand dollars; and
     (b) Make available on the internet and provide to the department a report identifying:
     (i) The program's funding and recycling success, including any increase in total batteries collected each year, cost of the program per pound of batteries collected, and the per capita cost of the program;
     (ii) The program's collections by county and battery chemistry;
     (iii) The program's educational and outreach activities;     
     (iv) The small rechargeable battery manufacturers and marketers, including private label retailers, and portable rechargeable product manufacturers or marketers, that participate in the program;
     (v) The mechanisms employed and the entities involved in the final disposition of collected materials;
     (vi) A description of the methods used to collect, transport, and account for all used small rechargeable batteries collected, including identification of all sorting and reclamation facilities used; and
     (vii) The program's independently audited financial statement, including a breakdown of program expenses such as collection, recycling, education, and overhead. If a qualified program operating in Washington is part of a program that also operates in jurisdictions outside of Washington, funding information and audited financial statements need not be reported on a Washington-specific basis, but average costs of collection and overhead must be clearly stated.
     (8) A qualified program plan may be amended by submitting to the department a revised version of the qualified program plan showing proposed amendments and an administrative fee in the amounts set forth in subsection (1) of this section. Within sixty days of receipt, the department shall approve the amended program plan, if the amended program plan continues to address all of the requirements of subsection (3) of this section and, if it is a multiparty program plan, subsection (4) of this section, or shall inform the submitter with specificity of any deficiencies and allow a reasonable period of time for submission of revised amendments. If the department fails to notify the submitter with specificity of a continuing failure to meet the applicable requirements of subsection (3) or (4) of this section after receiving a further revised version of the qualified program, then the revised plan is deemed to be a qualified program plan. If at either the submission or resubmission stage the department informs the submitter of deficiencies, the unamended, previously approved, qualified plan remains in effect until a revised plan is approved by the department, unless the qualified plan is terminated by its operator.
     (9) A program plan amendment must be submitted to the department if there is an addition to the products covered under the qualified program or there is a significant change in the operation of the program. In the event of such a submission, the department's review obligations as to revised portions of the plan are the same as those set forth in subsections (3) and (4) of this section.
     (10) A qualified program may be terminated by its operator at any time after the operator gives six months' notice to the department and to program participants of the proposed termination date.

NEW SECTION.  Sec. 6   Nothing in this chapter prohibits a governmental entity from recovering payment from a qualified program for used small rechargeable batteries that have been collected by or on behalf of that governmental entity or requires any qualified program operator to pay any governmental entity for such batteries.

NEW SECTION.  Sec. 7   (1) Beginning July 1, 2014, no retailer may sell or offer for sale in Washington:
     (a) A small rechargeable battery unless it is marked with an identification of the small rechargeable battery manufacturer or marketer;
     (b) A portable rechargeable product if the retailer has not received from the portable rechargeable product manufacturer or marketer written notification that the battery packaged with or contained in the portable rechargeable product is marked with an identification of the battery manufacturer or marketer; or
     (c) A small rechargeable battery or portable rechargeable product if the retailer has received written notice from the department or from the operator of a qualified program that the manufacturer or marketer of the battery or product does not comply with this chapter.
     (2) No retailer having a place of business in Washington is obliged to participate in a qualified used small rechargeable battery stewardship program unless it is a private label retailer.
     (3) Retailers that sell or offer to sell small rechargeable batteries or portable rechargeable products to consumers in Washington, whether through places of business or through nonretail outlets such as catalogs, by mail, telephone, or the internet, shall inform consumers of at least one qualified program that provides opportunities to return used small rechargeable batteries for recycling in Washington.
     (4) Any retailer that has a physical presence in Washington and is operating or participating in a qualified program shall ensure that all used batteries placed in any collection container located at the retailer's facility are protected from short circuiting in accordance with the applicable law, and shall take reasonable steps to prevent the placement into any such container of materials other than properly protected used small rechargeable batteries.
     (5) A retailer may not require the operator of a qualified program to pay the retailer for the costs associated with cooperating with that program.
     (6) An operator of a qualified program may not require a retailer to pay a fee to participate in that operator's program.
     (7) Any person who supplies to a retailer for sale a new small rechargeable battery or new portable rechargeable product whose manufacturer or marketer is not in compliance with section 3 of this act shall, upon request by the retailer, designate a location to which the retailer may ship the battery or product for further handling and reimburse the retailer for all costs incurred by the retailer in shipping the battery or product to the designated location.

NEW SECTION.  Sec. 8   All activities undertaken by any qualified program or a participant in such a program to establish and operate the program, to coordinate that program with a program to collect used electronic waste, or to coordinate with or participate in a program described in section 12 of this act shall not be considered in violation of any provision of chapter 19.86 RCW, the consumer protection act.

NEW SECTION.  Sec. 9   (1) The department has the authority to enforce all requirements of this chapter.
     (2) If the department learns from a qualified program operator, including retailer programs, that a person subject to a requirement under section 3, 4, 7, or 12 of this act has failed to comply with this act or failed to comply with a certification made pursuant to this act, the department shall notify the person of the potential violation. Unless the person comes into compliance within ninety days of receipt of such a notification, demonstrates to the satisfaction of the department that it is not subject to section 3, 4, 7, or 12 of this act, or requests a hearing on its compliance to be conducted in conformance with the administrative procedure act, chapter 34.05 RCW, the department shall include the person's name and other identifying information (including, but not limited to, all brand names used by the person) on a list that is made available to the public through the internet of entities whose small rechargeable battery or portable rechargeable product may not be sold in Washington.
     (3) Any person who violates section 3, 4, or 12 of this act, or who holds itself out as operating a qualified program when such a program has not been approved by the department, is liable for a civil penalty recoverable in a proceeding before the department in the amount of five thousand dollars for the first violation, ten thousand dollars for the second violation, and fifty thousand dollars for the third and each subsequent violation. Any person who violates section 7 of this act is liable for a civil penalty recoverable in a proceeding before the department in the amount of one thousand dollars. For purposes of this chapter, multiple consecutive days of the same failure to comply with a requirement of this chapter are considered a single violation.
     (4) At least ninety days prior to seeking to assess any penalty authorized by subsection (3) of this section, the department shall notify the alleged violator of the department's intention to seek a penalty. No penalty is recoverable under subsection (3) of this section if, within the ninety days of receipt of such a notice, the recipient has come into compliance with this chapter. Any person that incurs a penalty under this chapter may appeal the penalty by written petition to the office of administrative hearings in accordance with chapter 34.05 RCW, the administrative procedure act.

NEW SECTION.  Sec. 10   The used battery stewardship account is created in the custody of the state treasurer. All receipts from payments made under section 5 (1), (7), and (8) of this act and penalties levied under this chapter must be deposited into the account. Expenditures from the account may be used solely by the department for the purposes of fulfilling department responsibilities specified in this chapter. Only the director of the department or the director's designee may authorize expenditures from the account. Funds in the account may not be diverted for any purpose or activity other than those specified in this section. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION.  Sec. 11   (1) The operator of a qualified used small rechargeable battery stewardship program that incurs costs in excess of five thousand dollars in collecting, handling, recycling, or properly disposing in Washington of free rider used small rechargeable batteries may bring a civil action or actions to recover costs, damages, and fees as specified in subsection (2) of this section if the free rider used small rechargeable batteries originated from a small rechargeable battery manufacturer or marketer or portable rechargeable product manufacturer or marketer who:
     (a) Was required by section 3 of this act to operate or participate in a qualified program, did not at the time the used battery was collected participate in a qualified program, and was not covered by the participation by another manufacturer in a qualified program; and
     (b) Can reasonably be identified from a brand or marking on a used small rechargeable battery or from other information.
     (2) An action under subsection (1) of this section may be brought against one or more small rechargeable battery manufacturers or marketers or portable rechargeable product manufacturers or marketers. In any such action, the plaintiff operator of a qualified program may recover from a defendant small rechargeable battery manufacturer or marketer or portable rechargeable product manufacturer or marketer the costs the plaintiff incurred in collecting, handling, recycling, or properly disposing of free rider used small rechargeable batteries reasonably identified as having originated from the defendant small rechargeable battery manufacturer or marketer or portable rechargeable product manufacturer or marketer, plus an amount of damages equal to no more than three times those costs, plus the plaintiff's attorneys' fees and costs of litigation.
     (3) An action to recover the costs specified in this section may be brought in any superior or district court in the state, without regard to the amount in dispute.

NEW SECTION.  Sec. 12   Any person that operates a state or multistate program in Washington for the stewardship of multiple brands of used nonrechargeable batteries shall provide to all small rechargeable battery manufacturers and marketers and portable rechargeable product manufacturers or marketers subject to this chapter the opportunity to participate in that person's program and shall comply with the requirements of a multiparty program plan under section 5 (1) and (4) of this act. Such a person may impose on the small rechargeable battery manufacturer or marketer or portable rechargeable product manufacturer or marketer fees no greater than the share of the total cost of the program of collecting, handling, and processing small rechargeable batteries that is equal to a reasonable estimate of the percentage that represents the share of sales of small rechargeable batteries sold in Washington for which the small rechargeable battery manufacturer or portable rechargeable product manufacturer would be responsible under section 3 of this act, compared to the total number of small rechargeable batteries sold in Washington as either individual units or in portable rechargeable products. Any small rechargeable battery manufacturer or marketer or portable rechargeable product manufacturer or marketer who participates in such a program is deemed to be in compliance with this chapter.

NEW SECTION.  Sec. 13   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. 14   This chapter may be known and cited as the Washington small rechargeable battery stewardship act.

NEW SECTION.  Sec. 15   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. 16   Sections 1 through 14 and 17 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION.  Sec. 17   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.