Washington State
House of Representatives
Office of Program Research
Environment & Energy Committee
E2SSB 5144
Brief Description: Providing for responsible environmental management of batteries.
Sponsors: Senate Committee on Ways & Means (originally sponsored by Senators Stanford, Nguyen, Cleveland, Frame, Hasegawa, Hunt, Keiser, Kuderer, Lovelett, Nobles, Pedersen, Rolfes, Valdez and Wilson, C.).
Brief Summary of Engrossed Second Substitute Bill
  • Requires producers of certain batteries to participate in a stewardship organization that plans and provides for battery collection and end-of-life management, beginning January 1, 2027, for portable batteries and January 1, 2029, for medium sized batteries.
  • Directs the Department of Ecology (Ecology) to assess the opportunities and challenges of managing batteries other that covered portable and medium-sized batteries, and authorizes Ecology to adopt rules taking effect no earlier than 2031 to establish product stewardship program participation responsibilities applicable to producers of batteries and those battery containing products.
  • Directs Ecology to report policy recommendations to the Legislature related to the collection and management of electric vehicle batteries by April 2024.
  • Prohibits retailers from selling covered batteries whose producers do not participate in an approved stewardship plan.
  • Requires battery stewardship organizations implementing a stewardship plan to establish performance goals, follow program funding criteria, meet collection and management standards, conduct public education and outreach, and report on program operations to Ecology.
  • Requires battery disposal to occur via collection locations provided by a battery stewardship organization or other responsible battery management arrangements.
  • Establishes labeling requirements for batteries sold in Washington.
Hearing Date: 3/14/23
Staff: Jacob Lipson (786-7196).

There are several chemical compositions of single-use and rechargeable batteries in common commercial use, including alkaline, nickel cadmium, lithium ion, and lead acid.  The dangerous waste rules adopted by the Department of Ecology (Ecology) allow businesses to manage most types of batteries as universal waste, which allows the batteries to be managed consistent with universally-applicable waste containment, management, accumulation, labeling, shipment, and release response criteria.  Ecology encourages household generators of battery waste to take them to a household hazardous waste collection facility.  Batteries can also be returned to the place of purchase if the retailer participates in a battery return program.  Some product and battery manufacturers and retailers participate voluntarily in programs to promote battery recycling. 

Washington has established five types of product stewardship programs:  electronic products; light bulbs that contain mercury (such as compact fluorescent lights); photovoltaic solar panels; pharmaceuticals; and paint.  The Electronic Products Stewardship Program provides for the collection and management of batteries and other components contained in covered electronic products. 

In general, the state's product stewardship programs require producers to participate in a stewardship organization or program that is responsible for the collection, transport, and end-of-life management of covered products.  Ecology is responsible for the oversight of the state's product stewardship programs, with the exception of the Pharmaceutical Stewardship Program, which is overseen by the Department of Health. 

Under state solid waste laws, Ecology implements and enforces a Vehicle Battery Recycling Program.  Batteries covered by the Vehicle Battery Recycling Program include batteries with a core of elemental lead that are capable of use in any vehicle, truck, boat, airplane, or utility vehicle and capable of producing 6 or more volts.  The Vehicle Battery Recycling Program prohibits the disposal of covered batteries except by delivery to a person selling lead acid batteries, Ecology-authorized collectors, or to a secondary lead smelter.  The retail sale of each vehicle battery must include in the price of battery sale a core charge of at least $5, which is applied unless the purchaser offers the seller an equivalent used battery.  People that sell vehicle batteries at retail in Washington must accept used vehicle batteries from a battery purchaser at the time of purchase of a replacement battery, and must post notices to inform customers of certain requirements of the Vehicle Battery Recycling Program. 

The Pollution Control Hearings Board (PCHB) is an appeals board with jurisdiction to hear appeals of certain decisions, orders, and penalties issued by Ecology and several other state agencies.  Parties aggrieved by a PCHB decision may obtain subsequent judicial review.  Penalties that are appealable to the PCHB may be imposed and collected following certain protocols. 

The Utilities and Transportation Commission supervises and regulates private solid waste companies, including reviewing and approving their rates and fees.  Cities and towns also sometimes provide solid waste collection services. 

Summary of Bill:

Battery Labeling Requirements
Three categories of batteries are established based on size and power storage capacity:

  • portable batteries, which include rechargeable batteries 11 pounds or less with a rating of 300 watt hours or less and primary batteries weighing 4.4 pounds or less;
  • medium format batteries, which include rechargeable batteries between 11 and 25 pounds with a rating of between 300 or 2,000 watt hours and primary batteries of between 11 and 25 pounds; and
  • large format batteries of at least 25 pounds or a rating of a least 2,000 watt hours.

Beginning January 1, 2028, producers and retailers may only sell, distribute, or offer for sale portable batteries, medium-format batteries, large-format batteries, and battery-containing products containing a battery designed or intended to be easily removable from the product if the batteries are:

  • marked with an identification of the battery's producer, unless the battery is less than half an inch in diameter or does not have a surface of longer than half an inch; or
  • beginning in 2030, marked with proper labeling to ensure collection and recycling, by identifying the chemistry of the battery and an indication that the battery should not be disposed of as household waste.  

By rule, the Department of Ecology (Ecology) may amend battery labeling requirements to maintain consistency with labeling requirements or voluntary standards in federal law.

Battery Manufacturer and Retailer Responsibilities.
Beginning January 1, 2027, each producer selling portable batteries or battery-containing products must participate in and fund a stewardship organization that implements a stewardship plan approved by Ecology.  This requirement applies to producers of medium format batteries beginning January 1, 2029.  Producers that do not participate in a stewardship plan may not sell covered batteries in Washington.  Excluded from these requirements are producers of batteries contained within medical devices, batteries that contain electrolyte as a free liquid, lead acid batteries weighing more than 11 pounds, batteries subject to the Ecology-implemented lead Vehicle Battery Recycling Program, and batteries contained in battery-containing products that are not intended or designed to be easily removed from the product.  Covered electronic products under the state's electronic product recycling law are excluded from the battery-containing products subject to product stewardship program participation requirements.  Producer responsibility for a covered battery or battery containing product is assigned to one of a number of entities associated the battery or product, or to be a party that has contractually accepted responsibility as the producer for a battery or battery containing product.

Beginning July 1, 2027, for portable batteries, and July 1, 2029, for medium-format batteries, retailers may not sell or offer for sale covered batteries or battery-containing products unless the producer participates in a battery stewardship organization.  Retailers are in compliance and not subject to penalties so long as a website made available by Ecology lists the producer or brand of battery or battery-containing product as being a stewardship plan participant.  Retailers are not required to make retail locations available to serve as collection locations for a battery stewardship program; however, retail locations that do serve as collection locations must comply with requirements for battery collection locations established for the battery stewardship organization.

Retailers may not sell batteries that are not marked consistent with battery labeling requirements.  Producers must certify to retailers that the batteries in their battery-containing products are labeled consistent with battery labeling requirements.  Retailers may provide information supplied by the battery stewardship organization regarding the options for end-of-life management provided through the battery stewardship program.  Battery stewardship organizations must make specified types of information available to retailers.  Retailers, producers, or battery stewardship organizations may not charge a point-of-sale fee to consumers to cover stewardship organization or battery stewardship program costs.

Stewardship Plan Submission and Performance Goals, Funding, Collection and Management, and Education and Outreach
By July 1, 2026, a battery stewardship organization must submit a plan for covered portable batteries to Ecology for approval.  A battery stewardship organization must submit a plan for covered medium format batteries within two years of Ecology adopting rules to implement battery stewardship law requirements.  Ecology must review a submitted plan and may approve it based on consideration of 15 specified components.  When certain changes occur to program operations, battery stewardship organizations must submit new plans to Ecology or submit plan amendments to Ecology, depending on the nature of the operational change.  Battery stewardship organizations must submit new plans for approval to Ecology at least every five years.  Ecology may require the submission of a revised plan at least five years after the approval of an initial plan if the battery stewardship organization fails to meet specified performance goals. 

Major elements of the plan submitted to Ecology for approval, and of battery stewardship program operations, include:

  • Performance Goals:  each battery stewardship plan must include performance goals that annually measure program achievements.  Performance goals must include targeted collection rates, a target recycling efficiency rate of at least 60 percent for rechargeable batteries and 70 percent for primary batteries, and public awareness, convenience, and accessibility goals. Beginning in 2032, and every five years thereafter, Ecology may adopt rules to increase the minimum recycling efficiency rates based on economically and technically feasible processes and methodology.
  • Program Funding:  Battery stewardship organizations must ensure funding is available to fully implement a program in an environmentally sound and socially just manner, including:  (1) battery collection; (2) transport and recycling; (3) education and outreach; (4) administrative fees; and (5) program evaluation.  The system of charges paid by participating producers must encourage design attributes that reduce environmental impacts, such as through eco-modulated fees.  Battery stewardship organizations must reimburse local governments for demonstrable costs for battery collection location services.
  • Battery Collection and Management: battery stewardship organizations must provide for the collection of all chemistries and brands of covered batteries on a free, continuous, convenient, visible, and accessible basis to any person, business, or government.  Battery stewardship organizations must provide suitable collection containers, and collection sites must adhere to an operations manual.  Statewide collection opportunities meeting enumerated criteria must be provided, as demonstrated using geographic information modeling.  Medium format batteries may only be collected at household hazardous waste facilities or other locations with persons certified to ship and handle hazardous materials under federal regulations.  Damaged and defective batteries are intended to be collected at collection locations staffed by trained persons, and battery stewardship organizations must provide for the collection of damaged and defective batteries in each county through collection sites or events.  Stewardship organizations are not required to provide for the collection of battery-containing products or batteries that remain in battery-containing products at the time of delivery to a collection site, but are required to collect batteries loose batteries.  Collected batteries must be managed by a battery stewardship organization in a hierarchy that prioritizes, in descending order, waste prevention and reduction, reuse, recycling, and other end-of-life management options, which are allowed only if demonstrated to Ecology that other management options are infeasible.
  • Education and Outreach:  Battery stewardship organizations must carry out specified promotional activities, including developing a website and collection site safety training procedures, and providing collection sites with information about the management of recalled batteries, which are not intended to be part of the battery stewardship organization's collection program.  Retailers must be provided promotional materials by stewardship organizations, and collection sites must be provided safety information.  Battery stewardship organizations must carry out a public awareness survey at the beginning of the battery stewardship program at least every five years. 

Battery Stewardship Program Administration, Enforcement, and Reporting.

Battery stewardship organizations must submit annual reports to Ecology, beginning June 1, 2028.  Annual reports must include financial assessments and statements, operational and logistical information such as the location of collection sites, and specified statistics regarding program operations, including statistics used to determine the satisfaction of battery stewardship program performance goals under the plan.  Battery stewardship organizations may request that Ecology keep submitted information confidential. Ecology must adopt rules to implement, administer, and enforce battery management requirements.  Ecology must establish annual fees to be paid by battery stewardship organizations.  Ecology is assigned specific roles and responsibilities, including reviewing submitted stewardship plans and annual reports, and maintaining a website that lists producers and brands participating in an approved battery stewardship organization. 

Ecology may impose civil penalties of up to $1,000 per violation per day after first issuing a written warning, or up to $10,000 per violation per day for repeat violations or for violations of corrective action orders.  Penalties are appealable to the Pollution Control Hearings Board (PCHB), and must be imposed in a manner consistent with the issuance of other penalties appealable to the PCHB.  

An account is created for the deposit of administrative fees paid by battery stewardship organizations and of penalties.

Civil Actions Among Producers and Battery Stewardship Organizations.

Battery stewardship organizations may bring civil actions to recover costs, damages, and fees from producers who sell covered batteries or battery-containing products not included in an approved plan.  In order to bring a civil action, a battery stewardship organization must incur costs for managing batteries in excess of $1,000 associated with a nonparticipating producer.  Battery stewardship organizations may also bring civil actions against other battery stewardship organizations that under perform on their battery collection responsibilities by failing to collect and manage batteries in an amount roughly equivalent to the costs imposed on the plaintiff battery stewardship organization by the defendant, plus legal fees.  Civil actions are in addition to Ecology's penalty authority. 

Evaluations of Electric Vehicle Batteries and Other Batteries That Are Not Covered Batteries.
Ecology must submit a report to the Legislature making policy recommendations for the collection and management of electric vehicle batteries, with a preliminary report due in November 2023 and a final report due in April 2024.  In developing recommendations, Ecology must solicit stakeholder input and examine best practices in other jurisdictions. 

By July 1, 2027, Ecology must complete an assessment of the opportunities and challenges for the end-of-life management batteries that are not required to participate in a battery stewardship organization, including large format batteries, lead acid batteries not subject to the existing lead acid vehicle battery program, batteries contained in medical devices, and batteries that are not easily removable from a product by a customer.  Ecology must consult with the Department of Commerce and stakeholders in completing the assessment, and consider specified aspects of battery management.  Ecology must submit a report to the Legislature by October, 2027 with the findings of the assessment. 

By January 1, 2030, Ecology may adopt rules to require producers of batteries and battery-containing products covered by the assessment completed in 2027 to participate in a battery stewardship organization that achieves environmentally positive outcomes similar to the stewardship organization for medium format and portable batteries.  Rules may require producer participation in a battery stewardship organization no earlier than July 1, 2031, and may exclude or delay requirements for categories of batteries based on the results of the assessment.  Ecology must exclude large format batteries from electric vehicles if electric vehicle batteries are managed under state law by 2030 in a manner that achieves similar outcomes. 

Battery Disposal Requirements
Persons, residents, businesses, facilities, and office buildings must dispose of unwanted covered batteries through the battery stewardship program's collection locations, except for commercial, industrial, or government facilities that use other responsible battery management arrangements that manage batteries in substantially similar ways to a battery stewardship organization.  Batteries may not be placed in waste containers for disposal in landfills, incinerators, or waste-to-energy facilities, or in mixed recyclable containers that do not have a separate location or compartment for covered batteries. 

Solid waste facilities are not in violation of these requirements if they post conspicuous signage regarding the requirement to use battery stewardship program battery collection locations for battery disposal. 

These battery disposal requirements take effect July 1, 2027, for portable batteries and July 1, 2029, for medium format batteries, or on the first date when a battery stewardship organization begins implementing an approved plan.  

The Business and Occupation Tax does not apply to receipts by a battery stewardship organization from participating producers. 

Producers and battery stewardship organizations that prepare, submit, and implement a battery stewardship program are granted immunity from state antitrust and trade practice laws for the limited purpose of the battery stewardship program. 

The creation of battery management requirements and battery stewardship program does not change or limit the authority of the Utilities and Transportation Commission or cities and towns related to solid waste services.  

A severability clause is included. 

Appropriation: None.
Fiscal Note: Available.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.