SF 2975

as introduced - 88th Legislature (2013 - 2014) Posted on 05/05/2014 09:33am

A bill for an act
relating to environment; establishing product stewardship program for primary
batteries; providing civil penalties; amending Minnesota Statutes 2013
Supplement, section 115A.142; 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.1416] PRIMARY BATTERIES; PRODUCT STEWARDSHIP
PROGRAM; STEWARDSHIP PLAN.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For purposes of this section, the following terms have
the meanings given:
new text end

new text begin (1) "brand" means a name, symbol, word, or traceable mark that identifies:
new text end

new text begin (i) a primary battery and attributes the primary battery to the owner or licensee
of the brand as the producer; or
new text end

new text begin (ii) a primary battery-containing product and attributes the primary battery to the
owner or licensee of the primary battery-containing product as the producer;
new text end

new text begin (2) "calendar year" means the period commencing January 1 and ending December
31 of the same calendar year;
new text end

new text begin (3) "collection rate" means a percentage by weight that each producer or stewardship
organization collects by an established date. The collection rate is calculated by weight
based on the percentage of primary batteries, including primary batteries taken from
primary battery-containing products, that are collected during a calendar year, as compared
to the average weight of primary batteries, including those in primary battery-containing
products, that were estimated to have been sold in the state by participating producers
during the three previous calendar years. Estimates of primary batteries sold in the state
may be based on a reasonable pro rata calculation based on national sales;
new text end

new text begin (4) "consumer" means a person who presents or delivers any number of primary
batteries to a collection facility that is included in an approved primary battery stewardship
plan;
new text end

new text begin (5) "discarded primary battery" means a primary battery that is no longer used for
its manufactured purpose;
new text end

new text begin (6) "easily removable" means readily detachable by a person without the use of tools
or with the use of common household tools;
new text end

new text begin (7) "primary battery" means a nonrechargeable battery weighing two kilograms or
less, including alkaline, carbon-zinc, lithium metal, and other batteries typically generated
as waste;
new text end

new text begin (8) "primary battery-containing product" means a primary battery contained in or
packed with products such as cameras, watches, calculators, flashlights, lanterns, portable
radios, toys, and clocks. Primary battery-containing product does not include:
new text end

new text begin (i) a primary battery that is sold in a covered electronic device, as defined in section
115A.1310, subdivision 7;
new text end

new text begin (ii) a primary battery that is not easily removable or is not intended or designed to be
removed from the product, other than by the manufacturer; or
new text end

new text begin (iii) a primary battery that is sold or used in an implanted medical device, as defined
in the federal Food, Drug, and Cosmetic Act, United States Code, title 21, section 321,
paragraph (h);
new text end

new text begin (9) "primary battery stewardship organization" or "stewardship organization" means
an organization appointed by one or more producers to act as an agent on behalf of a
producer or producers to design, submit, implement, and administer a primary battery
stewardship plan under this section;
new text end

new text begin (10) "primary battery stewardship plan" or "plan" means a plan submitted to the
agency under subdivision 3 by an individual producer or a primary battery stewardship
organization;
new text end

new text begin (11) "producer" means one of the following with regard to a primary battery or a
primary battery-containing product that is sold, offered for sale, or distributed in the state:
new text end

new text begin (i) a person that manufactures a primary battery or a primary battery-containing
product and that sells, offers for sale, or distributes the primary battery or the primary
battery-containing product in the state under the person's own name or brand;
new text end

new text begin (ii) if item (i) does not apply, a person that owns or licenses a trademark or brand
under which a primary battery or primary battery-containing product is sold, offered for
sale, or distributed in the state, whether or not the trademark is registered; or
new text end

new text begin (iii) if item (i) or (ii) does not apply, a person that imports a primary battery or a
primary battery-containing product into the state for sale or distribution.
new text end

new text begin Producer does not include a person that manufactures, sells, offers for sale, or imports
a primary battery-containing product in the state if the person affirms that the person
only uses primary batteries supplied by a producer participating in an approved primary
battery stewardship program and reports to the agency the estimated number of primary
batteries in the person's primary battery-containing products estimated to be sold in the
state. Estimates of primary batteries contained in primary battery-containing products
sold in the state may be based on a reasonable pro rata calculation of national sales of
the primary battery-containing products;
new text end

new text begin (12) "program" or "stewardship program" means a system for the collection,
transportation, recycling, and disposal of primary batteries implemented under an
approved primary battery stewardship plan;
new text end

new text begin (13) "recycling" means any process by which discarded products, components, and
by-products are transformed into new usable or marketable materials in a manner in
which the original products may lose their identity, but does not include energy recovery
or energy generation by means of combusting discarded products, components, and
by-products with or without other waste products;
new text end

new text begin (14) "retailer" means a person who offers a primary battery or a primary
battery-containing product for sale to any consumer or business at retail in the state; and
new text end

new text begin (15) "sale" or "sell" means transfer of title of a primary battery or primary
battery-containing product for consideration, including a remote sale conducted through a
sales outlet, catalog, Web site, or similar electronic means. Sale or sell includes a lease
through which a primary battery or primary battery-containing product is provided to a
consumer by a producer, manufacturer, assembler, wholesaler, or retailer.
new text end

new text begin Subd. 2. new text end

new text begin Sale of primary battery or primary battery-containing product. new text end

new text begin (a)
Beginning January 1, 2016, except as provided under paragraphs (b) and (c), a producer of
a primary battery or primary battery-containing product must not sell, offer for sale, or
deliver to a retailer for subsequent sale a primary battery or primary battery-containing
product unless:
new text end

new text begin (1) the producer or the stewardship organization in which the producer participates
is registered under an approved and implemented primary battery stewardship plan;
new text end

new text begin (2) the producer or stewardship organization has paid the fee under subdivision
10; and
new text end

new text begin (3) the name of the producer and the producer's brand are designated on the agency's
Web site as covered by an approved primary battery stewardship plan.
new text end

new text begin (b) A producer who, after January 1, 2015, seeks to sell, offer for sale, or offer
for promotional purposes in the state a primary battery or primary battery-containing
product not previously sold in the state must notify the agency before selling or offering a
product not covered by a stewardship plan in the state. The agency shall list a producer
who supplies notice under this paragraph as a new producer on the agency's Web site.
A producer that supplies notice under this paragraph has 90 days to join an existing
primary battery stewardship organization or submit a primary battery stewardship plan for
approval to the agency.
new text end

new text begin (c) A producer who annually sells, offers for sale, distributes, or imports into the
state primary batteries or primary battery-containing products with a total retail value of
less than $500 is exempt from this section.
new text end

new text begin Subd. 3. new text end

new text begin Primary battery stewardship plan. new text end

new text begin (a) On or before April 1, 2015,
a producer selling, offering for sale, or offering for promotional purposes a primary
battery or primary battery-containing product in the state must individually or as part of
a primary battery stewardship organization submit a primary battery stewardship plan
to the agency for review.
new text end

new text begin (b) Each primary battery stewardship plan must, at a minimum:
new text end

new text begin (1) provide a list of all participating producers, contact information for each of the
participating producers, and the brands of primary batteries covered by the plan;
new text end

new text begin (2) provide for free collection of primary batteries from consumers. A producer
shall not refuse the collection of a primary battery based on the brand or manufacturer of
the primary battery;
new text end

new text begin (3) allow all retailers that sell primary batteries or primary battery-containing
products covered under the plan and all municipalities to opt to be a collection facility;
new text end

new text begin (4) provide no fewer than two collection facilities in each county in the state;
new text end

new text begin (5) provide for acceptance from a consumer of up to 20 primary batteries per visit. A
collection facility may agree to accept more than 20 batteries per visit from a consumer;
new text end

new text begin (6) include a description of the method that will be used to responsibly manage
discarded primary batteries to ensure that the components of the discarded primary
batteries, to the extent economically and technically feasible, are recycled;
new text end

new text begin (7) list all key participants in the primary battery collection chain, including:
new text end

new text begin (i) the number and name of the collection facilities accepting primary batteries under
the plan, including the address and contact information for each facility;
new text end

new text begin (ii) the name and contact information of the transporters or contractors collecting
primary batteries from collection facilities; and
new text end

new text begin (iii) the name, address, and contact information of the recycling facilities that
process the collected primary batteries;
new text end

new text begin (8) include an education and outreach program. The education and outreach
program may include media advertising, retail displays, articles in trade journals and other
publications, and other public educational efforts. The education and outreach program
shall describe the outreach procedures that will be used to provide notice of the program
to businesses, municipalities, retailers, wholesalers, and haulers. At a minimum, the
education and outreach program shall notify the public:
new text end

new text begin (i) that there is a free collection program for all primary batteries; and
new text end

new text begin (ii) the location of collection points and how to access the collection program; and
new text end

new text begin (9) include provisions for implementing the program in conjunction with those
retailers and municipalities acting as collection facilities under a program. Implementation
of the program must be at no cost to retailers or municipalities acting as collection
facilities under a program. A producer or a primary battery stewardship organization
must provide retailers and municipalities acting as collection facilities with products or
equipment for setting up a collection point and for providing for the pickup of collected
primary batteries, including arranging for the management of those primary batteries.
new text end

new text begin Subd. 4. new text end

new text begin Annual report; plan audit. new text end

new text begin (a) On or before April 1, 2017, and annually
thereafter, a producer or a primary battery stewardship organization must submit a report
to the agency that:
new text end

new text begin (1) provides the weight of primary batteries collected by the producer or the
stewardship organization in the prior calendar year;
new text end

new text begin (2) provides the collection rate achieved in the prior calendar year;
new text end

new text begin (3) specifies the collection facilities that failed in the previous calendar year to
collect a minimum of 100 pounds by weight of primary batteries and whether these
collection facilities will be eliminated from the producer's or primary battery stewardship
organization's plan;
new text end

new text begin (4) lists the locations for all collection points set up by the producers covered by the
plan and contact information for each location;
new text end

new text begin (5) gives examples and a description of educational materials used to increase
collection;
new text end

new text begin (6) describes the manner in which the collected primary batteries were managed;
new text end

new text begin (7) describes any material change to the primary battery stewardship plan; and
new text end

new text begin (8) provides the cost of implementation of the program, including the costs of
collection, recycling, education, and outreach.
new text end

new text begin (b) Once every five years, a producer or stewardship organization must hire an
independent third party to audit the plan and plan operation. The auditor must examine
the effectiveness of the program in collecting and recycling primary batteries. The
independent auditor must examine the cost-effectiveness of the program and compare it to
that of collection programs for primary batteries in other jurisdictions. The independent
auditor must make recommendations to the agency on ways to increase program efficacy
and cost-effectiveness.
new text end

new text begin Subd. 5. new text end

new text begin Primary battery stewardship organization; requirements; registration.
new text end

new text begin (a) A producer may meet the requirements of this section by participating in a primary
battery stewardship organization that undertakes the producer's responsibilities under
subdivisions 2 to 4.
new text end

new text begin (b) To qualify as a stewardship organization under this section, an organization must:
new text end

new text begin (1) commit to assume the responsibilities, obligations, and liabilities of all producers
participating in the stewardship organization;
new text end

new text begin (2) not create unreasonable barriers for participation by producers in the stewardship
organization; and
new text end

new text begin (3) maintain a public Web site that lists all producers and producers' brands covered
by the primary battery stewardship organization's approved collection plan.
new text end

new text begin (c) Beginning January 1, 2015, and annually thereafter, a stewardship organization
must register with the agency on a form provided by the agency. The registration form
must include:
new text end

new text begin (1) a list of the producers participating in the stewardship organization;
new text end

new text begin (2) a list of the brands of primary batteries and primary battery-containing products
of each producer participating in the stewardship organization;
new text end

new text begin (3) the name, address, and contact information of a person responsible for ensuring
producers' compliance with this section;
new text end

new text begin (4) a description of how the stewardship organization meets the requirements of
paragraph (b), including any reasonable requirements for participation in the stewardship
organization; and
new text end

new text begin (5) the name, address, and contact information of a person for a nonmember
manufacturer to contact regarding how to participate in the stewardship organization
to satisfy the requirements of this section.
new text end

new text begin (d) A renewal of a registration without changes may be accomplished by notifying
the agency on a form provided by the agency.
new text end

new text begin (e) Producers of battery-containing products that choose to fulfill the requirements of
this section by participation in a stewardship organization under paragraph (a) must notify
each product stewardship organization operating an approved program that the primary
batteries contained within or packaged with the person's products are covered by a primary
battery producer participating in a stewardship program and must provide the name of
the products, the identity of the person's primary battery supplier, the brand, weight,
chemistry, and estimated number of batteries contained in or packaged with the products
sold in the state, and any other details the primary battery stewardship organization may
reasonably require. A primary battery stewardship organization in which the primary
battery supplier is participating shall, as part of the list submitted under subdivision
3, paragraph (b), include the producer of the primary battery-containing product as a
participant in its program, subject to any limitations or exceptions as may be indicated by
the information submitted by the primary battery-containing product producer.
new text end

new text begin Subd. 6. new text end

new text begin Agency responsibilities; approval of plans. new text end

new text begin (a) Within 90 days after
receipt of a proposed stewardship plan, the agency shall determine whether the plan
complies with subdivision 3. 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 is rejected by the agency shall submit a revised plan to the agency within 45 days
of receiving notice of rejection.
new text end

new text begin (b) Any changes to a proposed stewardship plan must be approved by the agency in
writing. The agency, at the commissioner's discretion or at the request of a producer, may
require a producer or a primary battery stewardship organization to amend an approved
plan.
new text end

new text begin (c) The agency shall post all proposed and approved primary battery stewardship
plans on the agency's Web site, subject to the confidentiality provisions of subdivision 8.
new text end

new text begin (d) The agency shall establish a process under which a primary battery stewardship
plan, prior to plan approval or amendment, is available for public review and comment.
new text end

new text begin (e) The agency shall accept, review, and approve or deny primary battery
stewardship organization registrations submitted under subdivision 5.
new text end

new text begin (f) The agency shall maintain a Web site that includes the names of producers
with approved plans or participation in approved plans. The Web site shall list all of an
approved producer's brands covered by the stewardship plan filed with the agency. The
agency shall update information on the Web site within ten days of receipt of notice
of any change to the listed information.
new text end

new text begin (g) A primary battery stewardship plan approved by the agency under this
subdivision has a term not to exceed five years, provided that the producer remains in
compliance with the requirements of this section and the terms of the approved plan.
new text end

new text begin Subd. 7. new text end

new text begin Retailer obligations. new text end

new text begin (a) Except as provided under paragraph (b),
beginning January 1, 2016, no retailer shall sell or offer for sale a primary battery or
primary battery-containing product unless the retailer has reviewed the agency's Web site
required in subdivision 6, paragraph (f), to determine that the producer of the primary
battery or primary battery-containing product is implementing an approved collection plan
or is a member of a stewardship organization.
new text end

new text begin (b) A retailer is not responsible for an unlawful sale of a primary battery or primary
battery-containing product under this subdivision if:
new text end

new text begin (1) the retailer purchased the primary battery or primary battery-containing product
before January 1, 2016, and sells the battery or product on or before January 1, 2017; or
new text end

new text begin (2) the producer's stewardship plan expired or was revoked, and the retailer took
possession of the in-store inventory of primary batteries or primary battery-containing
products before the expiration or revocation of the producer's stewardship plan.
new text end

new text begin Subd. 8. new text end

new text begin Confidentiality of submitted data. new text end

new text begin (a) Reports and data submitted under
this section are available for public inspection and copying, except that information
deemed trade secret information as defined under section 13.37 is not available for public
inspection and copying. The agency may publish confidential information in a summary
or aggregated form that does not directly or indirectly identify individual producers,
distributors, or retailers.
new text end

new text begin (b) The agency may require, as part of a report submitted under this section, that the
producer or stewardship organization submit a report that does not contain trade secret
information and is available for public inspection and review.
new text end

new text begin (c) The total weight of batteries collected under an approved primary battery
stewardship plan is not confidential business information under the Uniform Trade Secrets
Act, or trade secret information as defined under section 13.37.
new text end

new text begin Subd. 9. new text end

new text begin Antitrust; conduct authorized. new text end

new text begin (a) A producer, group of producers, or
stewardship organization implementing or participating in an approved stewardship plan
under this section for the collection, transport, processing, and end-of-life management
of primary batteries are individually or jointly immune from liability for the conduct
under state laws relating to antitrust, restraint of trade, unfair trade practices, and other
regulation of trade or commerce, to the extent that the conduct is reasonably necessary
to plan, implement, and comply with the producer's, group of producers', or stewardship
organization's chosen system for managing discarded primary batteries. This subdivision
applies to conduct of a retailer or wholesaler participating in a producer's or stewardship
organization's approved plan when the conduct is necessary to plan and implement the
producer's or stewardship organization's organized collection or recycling system for
discarded primary batteries.
new text end

new text begin (b) Paragraph (a) does not apply to an agreement among producers, groups of
producers, retailers, wholesalers, or stewardship organizations affecting the price of
primary batteries or primary battery-containing products or any agreement restricting
the geographic area in which, or customers to whom, primary batteries or primary
battery-containing products shall be sold.
new text end

new text begin Subd. 10. new text end

new text begin Administrative fee. new text end

new text begin (a) A producer or stewardship organization shall
pay a fee of $15,000 annually for operation under a stewardship plan approved by the
agency under subdivision 6.
new text end

new text begin (b) The fees collected under paragraph (a) shall be deposited in the environmental
fund.
new text end

new text begin Subd. 11. new text end

new text begin Private right of action. new text end

new text begin (a) A producer or a primary battery stewardship
organization implementing an approved plan in compliance with this section may bring a
civil action against another producer or stewardship organization for damages when:
new text end

new text begin (1) the plaintiff producer or stewardship organization incurs more than $3,000 in
actual direct costs collecting, handling, recycling, or properly disposing of primary
batteries sold or offered for sale in the state by another producer; and
new text end

new text begin (2) the producer from whom damages are sought:
new text end

new text begin (i) can be identified as the producer of the collected batteries from a brand or
marking on the discarded battery or from other information available to the plaintiff
producer or stewardship organization; and
new text end

new text begin (ii) does not operate an approved primary battery stewardship program in the state.
new text end

new text begin (b) As used in this subdivision, "damages" means:
new text end

new text begin (1) the actual, direct costs a plaintiff producer incurs in collecting, handling,
recycling, or properly disposing of primary batteries reasonably identified as having
originated from a noncompliant producer;
new text end

new text begin (2) exemplary damages not exceeding three times the costs incurred under clause
(1); and
new text end

new text begin (3) the prevailing plaintiff producer's attorney fees and costs of bringing the action.
new text end

new text begin Subd. 12. new text end

new text begin Preemption. new text end

new text begin It is the intent of the legislature that this section fully
occupies and preempts the entire field of stewardship of primary batteries. Cities, towns,
counties, or other municipalities in the state may not adopt ordinances that regulate
disposal of primary batteries or require reporting by producers of primary batteries or
primary battery stewardship programs. Any such local laws and ordinances shall not be
enacted and are preempted and repealed, regardless of the nature of the code or charter or
home rule status of the city, town, county, or municipality.
new text end

new text begin Subd. 13. new text end

new text begin Penalty. new text end

new text begin A producer who violates this section is subject to a civil penalty
not to exceed $1,000 per day for each day of noncompliance.
new text end

Sec. 2.

Minnesota Statutes 2013 Supplement, section 115A.142, is amended to read:

115A.142 REPORT TO LEGISLATURE AND GOVERNOR.

As part of the report required under section 115A.121, the commissioner of the
Pollution Control Agency shall provide a report to the governor and the legislature on the
implementation of deleted text begin section deleted text end new text begin sections new text end 115A.1415 new text begin and 115A.1416 new text end .

Sec. 3. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 and 2 are effective August 1, 2014.
new text end