Pennsylvania 2009 bill text

AN ACT

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Providing for the return of beverage containers and for the

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powers and duties of the Department of Environmental

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Protection; imposing a returnable beverage container

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assessment on distributors; providing for duties of

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returnable beverage distributors; establishing the Returnable

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Beverage Container Fund; and providing for a returnable

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deposit value on returnable beverage containers, for

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redemption of empty returnable beverage containers, for

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redemption centers, for payment of claims from the fund and

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for annual report to General Assembly.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Short title.

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This act shall be known and may be cited as the Returnable

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Beverage Container Act.

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Section 2.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Beverage."  Any of the following:

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(1)  Soda water or similar carbonated soft drink.

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(2)  Noncarbonated drink, including, but not limited to,

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mineral water, flavored and unflavored water, spring water,

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vitamin water and any other water beverage, tea, sports

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drink, isotonic drink, beer and other malt beverages.

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(3)  Any other nonalcoholic carbonated and noncarbonated

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drink in liquid form that is intended for human consumption.

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The term does not include milk or any beverage that is primarily

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derived from a dairy product, infant formula and medicine

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approved by the Food and Drug Administration.

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"Consumer."  A person who buys a beverage in a returnable

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beverage container for use or consumption and pays the deposit.

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"Dealer."  A person who engages in the sale of beverages in

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returnable beverage containers to a consumer for off-premises

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consumption in this Commonwealth.

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"Department."  The Department of Environmental Protection of

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the Commonwealth.

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"Fund."  The Returnable Beverage Container Fund established

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under section 5.

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"On-premises consumption."  The consumption of returnable

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beverages by a patron immediately and within the area under

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control of an establishment, including, but not limited to, a

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bar, restaurant, passenger ship or airplane.

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"Patron."  A person who buys a beverage in a returnable

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beverage container for use or consumption and does not pay the

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deposit.

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"Person."  An individual, partnership, firm, association,

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public or private corporation, Federal agency, the Commonwealth

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or any of its political subdivisions, trust or any other legal

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entity.

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"Recycling facility."  The contiguous land and structures and

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other appurtenances and improvements on the land used for the

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collection, separation, recovery and sale or reuse of secondary

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resources that would otherwise be disposed of as solid waste and

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are an integral part of a manufacturing process aimed at

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producing a marketable product made of postconsumer material.

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"Redeemer."  A person, other than a dealer or distributor,

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who demands the refund value in exchange for an empty returnable

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beverage container.

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"Redemption center."  An operation that accepts from

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consumers and provides the refund value for empty returnable

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beverage containers intended to be recycled and ensures that the

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empty returnable beverage containers are properly recycled.

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"Redemption rate."  The percentage of returnable beverage

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containers redeemed over a reporting period. The percentage is

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calculated by dividing the number of returnable beverage

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containers redeemed by the number of returnable beverage

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containers sold and then multiplying that number by one hundred.

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"Refillable beverage container."  Any returnable beverage

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container that ordinarily is returned to the manufacturer to be

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refilled and resold.

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"Returnable beverage container."  Any sealable bottle, can,

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jar or carton which is primarily composed of glass, metal,

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plastic or any combination of those materials and is produced

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for the purposes of containing a beverage which, at the time of

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sale, contains 28 ounces or less of a beverage. The term does

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not include any sealable bottle, can, jar or carton which is

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composed of paper-based biodegradable material and aseptic

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multimaterial packaging.

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"Returnable beverage distributor" or "distributor."  A person

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who:

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(1)  is a manufacturer of beverages in returnable

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beverage containers in this Commonwealth; or

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(2)  imports and engages in the sale of filled returnable

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beverage containers to a dealer or consumer in this

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Commonwealth.

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The term includes a Federal agency and military distributor but

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does not include an airline or shipping company that merely

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transports returnable beverage containers.

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Section 3.  Returnable beverage container assessment on

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distributors.

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(a)  General rule.--Beginning January 1, 2010, a returnable

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beverage distributor shall pay to the department, on a monthly

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basis, a returnable beverage container assessment on each

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returnable beverage container manufactured in or imported into

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this Commonwealth. The returnable beverage container assessment

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shall not apply to returnable beverage containers exported for

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sale outside of this Commonwealth.

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(b)  Amount of assessment.--The returnable beverage container

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assessment shall be 5¢ per returnable beverage container and may

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be imposed only once on the same returnable beverage container.

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(c)  State preemption.--No municipality may impose or collect

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any assessment or fee on returnable beverage containers for the

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same or similar purpose that is the subject of this act.

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Section 4.  Returnable beverage distributors.

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(a)  Duty to register.--

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(1)  On or before September 1, 2009, each returnable

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beverage distributor shall register with the department,

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using forms prescribed by the department, and shall notify

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the department of any change in address or other information

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previously submitted.

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(2)  After September 1, 2009, any person who desires to

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conduct business in this Commonwealth as a returnable

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beverage distributor shall register with the department no

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later than one month prior to the commencement of the

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business.

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(b)  Maintenance of records.--

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(1)  A returnable beverage distributor shall maintain

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records reflecting the manufacture of beverages in returnable

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beverage containers or the importation and the sale of filled

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returnable beverage containers, as applicable.

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(2)  The records shall be made available, upon request,

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for inspection by the department; provided that any

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proprietary information obtained by the department shall be

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kept confidential and shall not be disclosed to any other

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person, except:

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(i)  as may be reasonably required in an

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administrative or judicial proceeding to enforce any

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provision of this act or any rule adopted pursuant to

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this act; or

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(ii)  under an order issued by a court.

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Section 5.  Returnable Beverage Container Fund.

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(a)  Establishment.--The Returnable Beverage Container Fund

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is established in the State Treasury. All revenues generated

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from the returnable beverage container assessment shall be

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deposited into the fund.

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(b)  Use of fund.--

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(1)  The moneys in the fund shall be used to pay valid

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returnable deposit claims submitted by returnable beverage

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distributors and redemption centers under section 14.

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(2)  After the payment of claims under paragraph (1), 75%

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of the fund shall be transferred on a monthly basis to the

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Hazardous Sites Cleanup Fund established under section 901 of

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the act of October 18, 1988 (P.L.756, No.108), known as the

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Hazardous Sites Cleanup Act.

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Section 6.  Inventory report.

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(a)  General rule.--Except as otherwise provided under

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subsection (e), beginning February 1, 2010, and continuing each

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month thereafter, a returnable beverage distributor shall file

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an inventory report with the department.

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(b)  Content.--The inventory report required under subsection

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(a) shall include documentation in sufficient detail to

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identify:

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(1)  The number of beverages in returnable beverage

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containers, by container size and type, manufactured in or

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imported into this Commonwealth during the reporting period.

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(2)  The number of these returnable beverage containers,

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by container size and type, exported and intended for

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consumption outside this Commonwealth during the reporting

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period.

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All information contained in an inventory report, including

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confidential commercial and financial information, shall be

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deemed confidential and protected from public disclosure to the

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extent allowed by law.

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(c)  Calculation of payment.--The payment due from a

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returnable beverage distributor for the assessment imposed under

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section 3 shall be equal to the net number of returnable

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beverage containers imported or manufactured into this

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Commonwealth, the total number of containers imported or

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manufactured less the total number of containers exported for

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consumption outside this Commonwealth, multiplied by 5¢.

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(d)  Filing deadline.--The inventory report and payment shall

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be filed with the department no later than the 15th day of the

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month following the end of the payment period of the previous

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month.

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(e)  Semiannual reporting.--A returnable beverage distributor

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who annually imports or manufactures in this Commonwealth less

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than 100,000 returnable beverage containers may submit reports

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and payments required under this act on a semiannual basis;

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provided that the semiannual report and payment period shall end

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on June 30 and December 31 of each year.

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Section 7.  Returnable deposit value of returnable beverage

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containers.

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Beginning January 1, 2010, each returnable beverage container

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sold in this Commonwealth shall have a returnable deposit value

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of 5¢, and the returnable deposit value shall be clearly

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indicated on it as provided under section 9.

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Section 8.  Sales of beverages in returnable beverage

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containers.

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(a)  Pass-through from distributors.--Beginning January 1,

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2010, a returnable beverage distributor who pays the returnable

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beverage container assessment to the department may add the

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amount of the assessment to the cost of each returnable beverage

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container paid by the dealer or consumer. The addition of the

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amount of the assessment may appear as a separate line item on

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the invoice prepared by the distributor.

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(b)  Pass-through from dealers.--Beginning January 1, 2010, a

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dealer who purchased a returnable beverage container from a

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distributor who added the amount of the returnable beverage

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container assessment to the cost of the returnable beverage

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container paid by the dealer and which dealer sells the

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returnable beverage container to a consumer may indicate the

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cost of the assessment as a separate line item on the invoice

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prepared by the dealer.

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Section 9.  Returnable beverage container requirements.

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(a)  General rule.--Except as provided in subsection (b),

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each returnable beverage container sold in this Commonwealth

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shall clearly indicate the returnable deposit value of the

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container and the word "Pennsylvania" or the letters "PA." The

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names or letters representing the names of other states with

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comparable deposit laws may also be included in the indication

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of the returnable deposit value. The returnable deposit value on

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every returnable beverage container shall be clearly,

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prominently and indelibly marked by painting, printing, scratch

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embossing, raised letter embossing or securely affixed stickers

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and shall appear on the top or side of the container in letters

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at least one-eighth inch in size.

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(b)  Nonapplicability.--Subsection (a) shall not apply to any

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type of refillable glass returnable beverage container that has

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a brand name permanently marked on it and the equivalent of a

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refund value of at least 5¢ which is paid upon receipt of the

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container by a dealer or returnable beverage distributor.

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Section 10.  Redemption of empty returnable beverage containers.

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(a)  General rule.--Except as provided in subsection (b), a

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dealer shall:

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(1)  Operate a redemption center by July 1, 2010, and

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shall accept all types of empty returnable beverage

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containers that bear a valid returnable deposit value for

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this Commonwealth under this act.

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(2)  Pay to any person who presents an empty returnable

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beverage container, except as otherwise provided under

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section 13, the amount of the returnable deposit value for

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the returnable beverage container, if it bears a valid

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returnable deposit value for this Commonwealth under this

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act.

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(3)  Ensure each returnable beverage container collected

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is recycled and forward documentation necessary to support

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claims for payment from the fund as stated in section 14 or

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the regulations adopted under this act.

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(b)  Nonapplicability.--Subsection (a) shall not apply to any

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dealer:

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(1)  who is located in a high density population area as

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defined by regulation of the department and within two miles

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of a certified redemption center that is operated

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independently of a dealer;

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(2)  who is located in a rural area as defined by

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regulation of the department;

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(3)  who subcontracts with a certified redemption center

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to be operated on the dealer's premises;

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(4)  whose sales of returnable beverage containers are

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only via vending machines;

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(5)  whose place of business is less than 5,000 square

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feet of interior space;

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(6)  who can demonstrate physical or financial hardship,

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or both, based on specific criteria established by regulation

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of the department; or

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(7)  who meets other criteria established by the

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department.

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Notwithstanding the provisions of paragraphs (1) and (2), the

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department may allow the placement of redemption centers at

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greater than prescribed distances to accommodate geographical

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features while ensuing adequate consumer convenience.

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(c)  Signs of closest redemption center.--Regardless of the

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square footage of a dealer's place of business, a dealer that is

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not a redemption center or has not subcontracted with a

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redemption center shall post a clear and conspicuous sign at the

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primary public entrance of the dealer's place of business that

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specifies the name, address and hours of operation of the

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closest redemption center location.

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(d)  On-premise consumption.--A person engaged in the

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business of selling beverages in returnable beverage containers

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for on-premises consumption shall collect the used returnable

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beverage containers from its patrons and either use a certified

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redemption center for the collection of containers or become a

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certified redemption center.

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Section 11.  Redemption centers.

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(a)  Certification required.--Prior to operation, a

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redemption center must be certified by the department.

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(b)  Applications.--An application for certification as a

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redemption center shall be filed with the department on forms

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prescribed by the department.

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(c)  Discretionary review of certification.--The department,

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at any time, may review the certification of a redemption

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center. After written notice to the person responsible for the

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establishment and operation of the redemption center and to the

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dealers served by the redemption center, the department, after

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it has afforded the person a hearing in accordance with

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applicable law, may withdraw the certification of the center if

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it finds that there has not been compliance with applicable

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laws, rules, permit conditions or certification requirements.

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(d)  Duties of redemption centers.--A redemption center

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shall:

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(1)  Accept all types of empty returnable beverage

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containers from consumers or other persons, unless excepted

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under section 13.

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(2)  Pay to any consumer or other person who presents an

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empty returnable beverage container, except as otherwise

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provided under section 13, the amount of the returnable

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deposit value for the returnable beverage container, if it

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bears a valid returnable deposit value for this Commonwealth

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under this act.

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(3)  Ensure each returnable beverage container collected

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is recycled and forward documentation necessary to support

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claims for payment from the fund as stated in section 14 or

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the regulations adopted under this act.

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(e)  Compliance with laws.--The redemption area of a

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redemption center shall be maintained in full compliance with

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applicable laws and with the orders and rules of the department,

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including permitting requirements, if deemed necessary by the

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department.

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Section 12.  Development of procedures.

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The department shall develop procedures to facilitate the

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exchange of information between returnable beverage container

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manufacturers, distributors and retailers and certified

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redemption centers. The procedures developed by the department

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shall allow for a reasonable time period between the

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introduction of a new returnable beverage product and the

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deadline for submitting universal product code information to

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certified redemption centers operating reverse vending machines.

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Section 13.  Refusal of refund value payment for a returnable

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beverage container.

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A retailer or redemption center may refuse to pay the

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returnable deposit value on any broken, corroded or dismembered

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returnable beverage container or any returnable beverage

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container that:

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(1)  contains a free-flowing liquid;

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(2)  does not properly indicate a refund value; or

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(3)  contains a significant amount of foreign material.

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Section 14.  Claims for reimbursement from the fund.

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(a)  General rule.--A dealer or redemption center that

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accepts a returnable beverage container from a consumer or other

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person and pays the returnable deposit value to the consumer or

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other person may submit to the department a claim for

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reimbursement from the fund.

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(b)  Amount of claim.--The department shall pay to each

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dealer or redemption center that submits a claim under

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subsection (a) 2¢ for each returnable beverage container that is

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not returned.

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(c)  Alternative payment approach.--The department may choose

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to pay the reimbursement amount on the basis of the total weight

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of the containers received by material type and the average

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weight of each container type, rather than on a per returnable

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beverage container basis.

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(d)  Limitation.--Reimbursement from the fund may only occur

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once for each returnable beverage container.

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Section 15.  Redemption center reporting.

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In order for its claim to be approved by the department, a

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dealer or redemption center shall submit to the department the

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following information on forms prescribed by the department.

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(1)  The number or weight of returnable beverage

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containers of each material type accepted at the redemption

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center for the reporting period.

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(2)  The amount of refunds paid out by material type.

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(3)  The number or weight of returnable beverages

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containers of each material type transported out of this

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Commonwealth or to a permitted recycling facility.

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(4)  Copies of out-of-Commonwealth transport and weight

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receipts or acceptance receipts from permitted recycling

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facilities. If the redemption center and the recycling

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facility are the same entity, copies of out-of-Commonwealth

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transport and weight receipts, or documentation of end use

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accepted by the department, shall also be included.

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(5)  Any other information deemed necessary by the

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department.

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Section 16.  Departmental inspections.

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The records of a returnable beverage distributor, dealer,

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redemption center and recycling facility shall be made

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available, upon request, for inspection by the department or a

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duly authorized agent of the department. Any proprietary

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information obtained during the inspection shall be kept

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confidential and shall not be disclosed to any other person,

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except:

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(1)  as may be reasonably required in an administrative

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or judicial proceeding to enforce any provision of this act

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or any regulation adopted pursuant to this act; or

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(2)  under an order issued by a court.

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Section 17.  Annual report to General Assembly.

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The department shall file a report with the General Assembly

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on an annual basis. The report shall include:

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(1)  Information on the administration of this act.

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(2)  Detailed financial information on the payment of

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claims from the Returnable Beverage Container Fund and the

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monthly transfers to the Hazardous Sites Cleanup Fund.

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(3)  Recommendations from the department as to whether

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the actual claim experience of the Returnable Beverage

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Container Fund necessitates adjustment of the percentage of

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monthly transfers set forth in section 5(b)(2) in order for

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the Returnable Beverage Container Fund to be fiscally sound

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for the continued payment of claims pursuant to this act.

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Section 18.  Regulations.

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The department may promulgate rules and regulations to

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administer and enforce this act.

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Section 19.  Effective date.

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This act shall take effect immediately.