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HF 2407

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:03am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to environment; providing a product stewardship framework operated
and funded by producers to collect, recycle, and dispose of products at the end
of their useful lives; creating an account; providing civil penalties; requiring
a report; appropriating money; proposing coding for new law in Minnesota
Statutes, chapter 115A.

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

Section 1.

new text begin [115A.1210] TITLE.
new text end

new text begin This act may be cited as the Minnesota Product Stewardship Act of 2009.
new text end

Sec. 2.

new text begin [115A.1211] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For the purposes of sections 115A.1210 to 115A.1223, the
following terms have the meaning given.
new text end

new text begin Subd. 2. new text end

new text begin Board. new text end

new text begin "Board" means the citizens' board of the Minnesota Pollution
Control Agency.
new text end

new text begin Subd. 3. new text end

new text begin Brand. new text end

new text begin "Brand" means a name, symbol, word, or mark that identifies a
product, rather than its components, and attributes the product to the owner of the brand as
the producer.
new text end

new text begin Subd. 4. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of the Pollution
Control Agency.
new text end

new text begin Subd. 5. new text end

new text begin Covered product. new text end

new text begin "Covered product" means a product designated by
the legislature under section 115A.1214 to be subject to management under a product
stewardship program. Covered product does not include a video display device or covered
electronic device as defined under section 115A.1310.
new text end

new text begin Subd. 6. new text end

new text begin Final disposition. new text end

new text begin "Final disposition" means the point beyond which
no further processing takes place and materials from a covered product have been
transformed for direct use as a feedstock in producing new products or disposed of or
managed in permitted facilities.
new text end

new text begin Subd. 7. new text end

new text begin Hazardous substance. new text end

new text begin "Hazardous substance" has the meaning given in
section 182.651, subdivision 14.
new text end

new text begin Subd. 8. new text end

new text begin Orphan product. new text end

new text begin "Orphan product" means a covered product that lacks a
producer's brand, or for which the producer is no longer in business and has no successor
in interest, or that bears a brand for which the agency cannot identify an owner.
new text end

new text begin Subd. 9. new text end

new text begin Person. new text end

new text begin "Person" has the meaning given in section 327B.01, subdivision
17.
new text end

new text begin Subd. 10. new text end

new text begin Processing. new text end

new text begin "Processing" means recovering materials from unwanted
products for use as feedstock in new products.
new text end

new text begin Subd. 11. new text end

new text begin Producer. new text end

new text begin "Producer" means a person that:
new text end

new text begin (1) has or had legal ownership of the brand, brand name, or cobrand of a covered
product sold or offered for sale in Minnesota;
new text end

new text begin (2) imports or has imported a covered product branded by a producer that meets the
requirements of clause (1) when the producer has no physical presence in the United States;
new text end

new text begin (3) makes or made an unbranded product that is or was sold or offered for sale in
Minnesota; or
new text end

new text begin (4) sells or sold at wholesale or retail a covered product, does not have legal
ownership of the brand, and elects to fulfill the responsibilities of the producer for that
product.
new text end

new text begin Subd. 12. new text end

new text begin Product stewardship. new text end

new text begin "Product stewardship" means a requirement
for a producer of a covered product to manage and reduce adverse safety, health, and
environmental impacts of a covered product throughout its life cycle, including financing
and providing for collection, transportation, reuse, recycling, processing, and final
disposition of the product.
new text end

new text begin Subd. 13. new text end

new text begin Product stewardship plan or plan. new text end

new text begin "Product stewardship plan" or "plan"
means a detailed plan required under section 115A.1216 that describes the manner in
which a product stewardship program will be implemented.
new text end

new text begin Subd. 14. new text end

new text begin Product stewardship program or program. new text end

new text begin "Product stewardship
program" or "program" means a program financed and operated by producers to collect,
transport, and recycle unwanted products.
new text end

new text begin Subd. 15. new text end

new text begin Recycling. new text end

new text begin "Recycling" has the meaning given in section 115A.03,
subdivision 25b.
new text end

new text begin Subd. 16. new text end

new text begin Retailer. new text end

new text begin "Retailer" means a person that offers covered products for sale
at retail through any means, including, but not limited to, remote offerings such as sales
outlets, catalogs, or the Internet. For purposes of this subdivision, "sale at retail" does not
include a sale that is a wholesale transaction with a distributor or a retailer.
new text end

new text begin Subd. 17. new text end

new text begin Stewardship organization. new text end

new text begin "Stewardship organization" means an
organization designated by a group of producers to act as an agent on behalf of each
producer to operate a product stewardship program.
new text end

new text begin Subd. 18. new text end

new text begin Unwanted product. new text end

new text begin "Unwanted product" means a covered product that is
no longer wanted by its owner or that has been abandoned or discarded or is intended to be
discarded by its owner.
new text end

Sec. 3.

new text begin [115A.1213] LIST OF POTENTIAL COVERED PRODUCTS.
new text end

new text begin Subdivision 1. new text end

new text begin List. new text end

new text begin (a) Beginning July 1, 2012, and each year thereafter, the agency
shall submit a list of potential covered products to the board.
new text end

new text begin (b) In determining whether a product should be included on the list, the agency
must consider at least the following factors regarding the manufacture, use, or end-of-life
management of the product:
new text end

new text begin (1) the degree to which the product poses adverse environmental and public health
impacts, including the presence of toxic and hazardous substances;
new text end

new text begin (2) whether the product poses a threat of increased greenhouse gas emissions;
new text end

new text begin (3) the existence of opportunities to reduce toxicity;
new text end

new text begin (4) whether the product has potential for enhanced resource conservation, including:
new text end

new text begin (i) energy conservation, materials conservation, or resource recovery; or
new text end

new text begin (ii) opportunities for increased reuse, recycling, or recycled content;
new text end

new text begin (5) the degree to which end-of-life management of the product currently places a
significant financial burden on governments and taxpayers, including those paying taxes to
manage solid waste;
new text end

new text begin (6) the difficulty of managing the product, including its ability to act as a contaminant
in existing solid waste management and recycling systems;
new text end

new text begin (7) opportunities for existing and new businesses and infrastructure to manage
products;
new text end

new text begin (8) the level of collection and recycling infrastructure currently in place;
new text end

new text begin (9) the success of product stewardship programs operating in other jurisdictions; and
new text end

new text begin (10) the willingness of potential partners to participate in a product stewardship
program.
new text end

new text begin Subd. 2. new text end

new text begin Notice; comments; hearing. new text end

new text begin (a) Within 30 days of submitting the list
of potential covered products to the board, the agency shall notify in writing potential
interested parties, including, but not limited to, manufacturers of products on the list that
offer the products for sale in Minnesota, retailers, recyclers, local units of government,
and other interested parties.
new text end

new text begin (b) The board shall accept written comments on the proposed inclusion of products
on the covered products list and shall provide for at least one public hearing before
finalizing the products on the list.
new text end

new text begin Subd. 3. new text end

new text begin Report to legislature. new text end

new text begin Within 30 days of the last public hearing on the
list of proposed covered products, the agency shall report the following to the chairs and
ranking minority members of the house of representatives and senate committees with
jurisdiction over environmental policy, environmental finance, and commerce:
new text end

new text begin (1) a list of potential covered products that the agency recommends should be
managed under a product stewardship program;
new text end

new text begin (2) a recommendation for each product on the list in clause (1) on whether the
legislature should authorize manufacturers to engage in anticompetitive conduct to the
extent necessary to plan and implement a product stewardship program and provide
producers with immunity from liability under state and federal law relating to antitrust,
restraint of trade, unfair trade practices, and other regulation of trade or commerce; and
new text end

new text begin (3) for each product on the list in clause (1), a recommended annual fee producers
may be charged to recover the agency's costs to administer the product stewardship
program.
new text end

Sec. 4.

new text begin [115A.1214] PRODUCT STEWARDSHIP PROGRAM INITIATION.
new text end

new text begin (a) A producer or group of producers may voluntarily implement a product
stewardship program for a specific product by notifying the agency in writing of the intent
to comply with sections 115A.1215 to 115A.1217.
new text end

new text begin (b) The agency may initiate a product stewardship program for a specific product
only if legislation is enacted directing the agency to do so. The legislation must also
address the items in section 115A.1213, subdivision 3, clauses (2) and (3).
new text end

new text begin (c) Within 30 days of the effective date of legislation requiring a product stewardship
program for a specific product, the agency shall notify producers that offer the product for
sale in Minnesota that a product stewardship plan with respect to the product must be filed
under section 115A.1216 within 180 days of the notice.
new text end

Sec. 5.

new text begin [115A.1215] PARTICIPATION IN PRODUCT STEWARDSHIP
PROGRAM.
new text end

new text begin Subdivision 1. new text end

new text begin Requirement for sale. new text end

new text begin (a) On and after the effective date of a
product stewardship plan approved by the agency, no producer, wholesaler, or retailer of
a covered product may sell or offer for sale a covered product in Minnesota unless the
producer of the covered product participates in a product stewardship program for that
product. Each producer participating in a product stewardship program must:
new text end

new text begin (1) operate, individually or jointly with other producers, a product stewardship
program approved by the agency or enter into an agreement with a stewardship
organization to operate, on the producer's behalf, a product stewardship program approved
by the agency; and
new text end

new text begin (2) verify in writing to a person selling a covered product in this state at least 60
days before the effective date of the product stewardship program that the producer is
participating in a product stewardship program approved by the agency.
new text end

new text begin Subd. 2. new text end

new text begin Product stewardship program costs. new text end

new text begin (a) A producer, group of producers,
or stewardship organization must pay all administrative and operational costs associated
with their product stewardship program, including the cost of collection, transportation,
recycling, and final disposition of unwanted products.
new text end

new text begin (b) No fee may be charged to cover the costs of a product stewardship program at
the time of sale of the covered product or when unwanted products are collected for
recycling or disposal.
new text end

new text begin Subd. 3. new text end

new text begin Inspections and audits. new text end

new text begin The agency may inspect, audit, or review
audits of processing and disposal facilities used to fulfill the requirements of a product
stewardship program.
new text end

Sec. 6.

new text begin [115A.1216] PRODUCT STEWARDSHIP PLAN.
new text end

new text begin Subdivision 1. new text end

new text begin Plan submission. new text end

new text begin A producer, group of producers, or product
stewardship organization shall submit a product stewardship plan to the agency for review
180 days prior to the offering for sale of a covered product in this state.
new text end

new text begin Subd. 2. new text end

new text begin Consultation required. new text end

new text begin A producer, group of producers, or product
stewardship organization must consult with stakeholders during the development of the
plan, solicit stakeholder comments, and attempt to address any stakeholder concerns
regarding the plan before submitting the plan to the agency for review.
new text end

new text begin Subd. 3. new text end

new text begin Plan content. new text end

new text begin A product stewardship plan must contain:
new text end

new text begin (1) certification that the product stewardship program will accept all unwanted
products regardless of who produced them, including orphan products;
new text end

new text begin (2) contact information for the individual and the entity submitting the plan and for
all producers participating in the product stewardship program;
new text end

new text begin (3) a description of the methods by which unwanted products will be collected in all
counties in the state, including the entities that will provide collection services, and an
explanation of how the collection system will be convenient and adequate to serve the
needs of residents in both urban and rural areas;
new text end

new text begin (4) the names and locations of transporters, recyclers, and disposal facilities that will
receive unwanted products or their components;
new text end

new text begin (5) a description of how unwanted products will be safely and securely transported,
tracked, and handled from collection through final disposal;
new text end

new text begin (6) a description of how unwanted products and their components will be processed,
recycled, and disposed of, including what steps will be taken to ensure environmentally
sound management;
new text end

new text begin (7) a description of the promotion and outreach activities required under section
115A.1217 and how the activities' effectiveness will be evaluated;
new text end

new text begin (8) anticipated resources and financing mechanisms to implement the plan;
new text end

new text begin (9) evidence of adequate insurance and financial assurance for collection, handling,
and disposal operations;
new text end

new text begin (10) proposed performance goals, including an estimate of the percentage of
unwanted covered products that will be collected during each of the three years subsequent
to the filing of the product stewardship plan;
new text end

new text begin (11) product design changes that will be considered to reduce toxicity, water use, or
energy use or to increase recycled content, recyclability, or product longevity; and
new text end

new text begin (12) an effective date when collection of unwanted products will begin.
new text end

new text begin Subd. 4. new text end

new text begin Agency review and approval. new text end

new text begin (a) No producer, group of producers, or
stewardship organization may begin collecting unwanted products until it has received
written approval of its product stewardship plan from the agency.
new text end

new text begin (b) Product stewardship plans must be submitted to the agency for approval. The
agency may consult with other state agencies regarding the plan.
new text end

new text begin (c) Within 90 days after receipt of a plan, the agency shall determine whether the
plan complies with sections 115A.1210 to 115A.1223. If the agency approves a plan, the
agency shall notify the applicant of the plan approval in writing. If the agency rejects a
plan, the agency shall notify the applicant in writing of the reasons for rejecting the plan.
An applicant whose plan has been rejected by the agency must submit a revised plan to the
agency within 60 days after receiving notice of the rejection.
new text end

new text begin (d) At least every four years, a producer, group of producers, or stewardship
organization operating a product stewardship program must update its product stewardship
plan and submit the updated plan to the agency for review and approval.
new text end

new text begin (e) Any proposed changes to a product stewardship plan must be approved by the
agency in writing.
new text end

new text begin Subd. 5. new text end

new text begin Plan availability. new text end

new text begin All product stewardship plans approved by the agency
shall be placed on the agency's Web site and made available at the agency's headquarters
for public review within 30 days of the agency's approval.
new text end

Sec. 7.

new text begin [115A.1217] PRODUCT STEWARDSHIP PROGRAM PROMOTION
AND OUTREACH.
new text end

new text begin (a) A product stewardship program must promote the program to retailers,
wholesalers, collectors, and other interested parties.
new text end

new text begin (b) A product stewardship program must prepare education and outreach materials
that publicize the location and operation of collection locations throughout the state
and disseminate them to interested parties. The program must also utilize a Web site
publicizing collection locations and program operations.
new text end

Sec. 8.

new text begin [115A.1218] ANNUAL REPORT.
new text end

new text begin By July 1 following the first full year after the effective date of a product stewardship
plan, and each July 1 thereafter, each producer, group of producers, or stewardship
organization operating a product stewardship program must submit to the agency a report
on the preceding year's activities, describing:
new text end

new text begin (1) a list of all participating producers and their brands and trademarks, if applicable;
new text end

new text begin (2) the amount, by weight, of unwanted products collected from each collection
site in the state;
new text end

new text begin (3) the degree to which recovery rates established in the product stewardship plan
were achieved and, if the product stewardship program did not attain those recovery rates,
what actions will be taken in the future to do so;
new text end

new text begin (4) the weight of unwanted products processed at each processing facility and
disposed of at each disposal facility and a description of the methods used at each
processing facility, including subcontractors used through final disposition that processed
or disposed of unwanted products containing hazardous substances and the subcontractor
facility locations;
new text end

new text begin (5) the degree to which policies and procedures in the product stewardship plan for
collection, transportation, processing, and final disposition of unwanted products were
followed during the preceding year and a description of, and reasons for, any deviations;
new text end

new text begin (6) the product stewardship program financing system;
new text end

new text begin (7) the promotion and outreach activities implemented, including an analysis of the
activities' effectiveness;
new text end

new text begin (8) how the product stewardship program complied with any other elements in
the plan;
new text end

new text begin (9) actions taken to reduce the life cycle impacts of the covered products, including
how product design has been improved to reduce toxicity, waste, and water and energy
use; increase recycled content; and make products more easily recyclable; and
new text end

new text begin (10) other information the agency may request. All reports submitted to the agency
must be made available to the public on the agency's Web site and at the agency's
headquarters within 30 days of receipt.
new text end

Sec. 9.

new text begin [115A.1218] FEES.
new text end

new text begin Any fees the agency is directed to establish by the legislature under section
115A.1214 must be paid to the commissioner and deposited in the account established in
section 115A.1220.
new text end

Sec. 10.

new text begin [115A.1219] ENFORCEMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Generally. new text end

new text begin Sections 115A.1410 to 115A.1423 shall be enforced in
the manner provided by section 115.071, subdivisions 1 to 6.
new text end

new text begin Subd. 2. new text end

new text begin Producer penalties. new text end

new text begin (a) Upon first determining that a producer is offering
a covered product for sale in this state but is not participating in a product stewardship
program approved by the agency, the agency shall send the producer a written warning
that the producer is in violation of section 115A.1215, subdivision 1.
new text end

new text begin (b) A producer not participating in a product stewardship program approved by the
agency whose covered product continues to be sold in this state 60 days after receiving
a written warning from the agency under paragraph (a) must be assessed a penalty of
$10,000 for each calendar day that the violation continues.
new text end

new text begin (c) If a product stewardship plan approved under section 115A.1216, subdivision
4, is not fully implemented within 30 days of the start date contained in the plan, the
agency shall assess a penalty of $5,000 and notify each producer associated with the
product stewardship program. If, after an additional 30 days, an approved plan is not fully
implemented, the agency shall issue a second violation notice and assess a penalty of
$10,000 to each producer associated with the product stewardship program. Subsequent
violations occur each 30 days that the approved plan is not fully implemented.
new text end

new text begin (d) The agency shall send a written warning to a producer that fails to submit a
product stewardship plan, update or change the plan when required, or submit an annual
report as required under sections 115A.1210 to 115A.1223. The written warning must
include compliance requirements and notification that the requirements must be met
within 60 days. If requirements are not met within 60 days, the agency shall issue a second
violation notice and assess the producer a penalty of $10,000 per day of noncompliance
starting with the first day of notice of noncompliance.
new text end

new text begin (e) A producer may appeal penalties prescribed under this section to the board.
new text end

new text begin (f) All penalties levied under this subdivision must be paid to the commissioner and
deposited in the account established in section 115A.1220.
new text end

new text begin Subd. 3. new text end

new text begin Retailer penalties. new text end

new text begin (a) The agency shall provide on its Web site a list of all
producers participating in product stewardship programs the agency has approved and a
list of all producers the agency has identified as noncompliant with sections 115A.1210
to 115A.1223.
new text end

new text begin (b) It is the responsibility of a retailer offering covered products for sale in this state
to view the agency's Web site to determine if producers of covered products the retailer is
offering for sale in this state are in compliance with sections 115A.1210 to 115A.1223.
If a retailer is unsure of the status of the producer or believes the producer is not in
compliance, the retailer shall contact the agency to determine the producer's status.
new text end

new text begin (c) The agency shall send a written notice to a retailer known to be selling a covered
product in this state from producers that are not participating in an approved product
stewardship program or that are not in compliance with other provisions of sections
115A.1210 to 115A.1223.
new text end

new text begin (d) A retailer that continues to sell a covered product from a producer that is not
participating in an approved product stewardship program 60 days after receiving a
written notice from the agency must be assessed a penalty of $10,000 for each day of
noncompliance.
new text end

new text begin (e) A retailer that continues to sell a covered product from a producer that is not in
compliance with other provisions of sections 115A.1210 to 115A.1223 must be assessed a
penalty of $1,000 for each day of noncompliance.
new text end

new text begin (f) A person primarily engaged in the business of reuse and resale of used products is
not subject to this section when selling a used covered product, for use in the same manner
and purpose for which the product was originally purchased.
new text end

new text begin (g) A retailer that sells a covered product from a physical outlet located in Minnesota
and that is in possession of an existing stock of covered products on-site on the effective
date of the product stewardship plan may exhaust the existing stock of the covered product.
new text end

new text begin (h) All penalties levied under this subdivision must be deposited in the product
stewardship program account established under section 115A.1220.
new text end

Sec. 11.

new text begin [115A.1220] PRODUCT STEWARDSHIP PROGRAM ACCOUNT.
new text end

new text begin The product stewardship program account is created in the environmental fund. The
commissioner must deposit all fees established by the legislature in section 115A.1214
and all receipts from penalties collected under section 115A.1219 into the account. Any
interest earned on the account must be credited to the account. Funds in the account
at the end of a fiscal year do not cancel to the general fund, but remain in the account.
Money from the account is appropriated annually to the commissioner for the purpose of
administering sections 115A.1210 to 115A.1223.
new text end

Sec. 12.

new text begin [115A.1222] SOLICITATION OF COMMENTS.
new text end

new text begin Beginning July 1, 2013, and every other year thereafter, the agency shall solicit
comments from local units of government, citizens, and nonprofit organizations to report
their satisfaction with the services provided by product stewardship programs. The agency
must use this information to determine the degree to which the product stewardship
programs are meeting the convenience requirements under section 115A.1216 and in
reviewing proposed updates or changes to product stewardship plans.
new text end

Sec. 13.

new text begin [115A.1223] REPORT TO LEGISLATURE.
new text end

new text begin Beginning December 1, 2014, and each year thereafter, the commissioner shall
submit a report to the chairs and ranking minority members of the senate and house of
representatives committees with primary jurisdiction over energy policy and energy
finance on the implementation and operation of sections 115A.1210 to 115A.1223. The
report must include, for each covered product for which a product stewardship program
is operating in the state:
new text end

new text begin (1) the total amount, by weight, of covered products and components that has been
collected and recycled and that has undergone final disposition;
new text end

new text begin (2) the amount of fees collected from producers;
new text end

new text begin (3) a description of the collection programs, including the location of collection sites;
new text end

new text begin (4) the costs to the agency of administering the product stewardship program and
any recommended adjustments to fees paid by producers;
new text end

new text begin (5) a summary of comments received under section 115A.1222; and
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new text begin (6) recommendations to improve the operation of product stewardship programs.
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Sec. 14. new text beginEFFECTIVE DATE.
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new text begin Sections 1 to 13 are effective the day following final enactment.
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