Tennessee 2009 bill text

HB 1169 (Companion Bill: SB 1404)

Tennessee Deposit Beverage Container Recycling Act of 2009

The following text was found at http://www.capitol.tn.gov/Bills/106/Bill/HB1167.pdf

AN ACT to amend Tennessee Code Annotated, Title 68,
Chapter 211 and Chapter 86 of the Public Acts of
2005, to enact the “Tennessee Beverage
Container Recycling Act”.
WHEREAS, the general assembly finds that recycling is an important element of an
integrated solid waste management system, which can protect and preserve natural resources,
conserve energy and reduce economic costs to residents, businesses and local governments
within the state; and
WHEREAS, the general assembly finds that reducing litter is important for the promotion
of tourism and enhancing the quality of life for the residents of this state; and
WHEREAS, the general assembly finds a need to expand participation in recycling
programs; to maximize the economic benefits of such programs to businesses, government and
residents; and to reduce litter; and
WHEREAS, the purposes of this act are to increase recycling rates for specified deposit
beverage containers, to encourage recycling in general, to reduce litter, and to provide a
connection between manufacturing decisions and recycling program management; now,
therefore,
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 68, Chapter 211, is amended by adding
Sections 2 through 29 of this act as a new, appropriately designated part.
SECTION 2. This part shall be known as and may be cited as the “Tennessee Beverage
Container Recycling Act”.
SECTION 3.
As used in this part, unless the context requires otherwise:
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(1) “Administrative fee” means an amount paid by the state to a certified
processor to defray administrative costs;
(2) “Board” means the solid waste disposal control board created pursuant to §
68-211-111;
(3) “Cancel” means to crush, flatten, shred or otherwise render a deposit
beverage container unfit for redemption;
(4) “Certified processor” means a facility designed for the collection, processing,
and sale or reuse of secondary resources that would otherwise be disposed of as
municipal solid waste, and that has been certified by the department to purchase,
quantify, document, cancel, process and reuse or sell for reuse, deposit beverage
containers that have been collected at certified redemption centers;
(5) “Certified redemption center” means an operation that has been certified by
the department to accept empty deposit beverage containers from consumers; sort the
containers according to material type and, if applicable, color and size; pay no less than
the established refund value either to the consumer or to a recipient designated or
intended by the consumer; ensure that the properly sorted containers are received by a
certified processor; and, where authorized, cancel the empty containers. A certified
redemption center may be:
(A) A dedicated storefront facility;
(B) A facility that is operated by and is a part of:
(i) A grocery store or other retailer;
(ii) A nonprofit agency or facility, such as a homeless shelter;
(iii) A recycling program operated by, or on behalf of, a county,
municipal or metropolitan government, including a recycling convenience
center, a waste transfer station, a materials recovery facility, or a landfill;
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or
(iv) A certified processor;
(C) A portable microsite redemption center;
(D) A mobile redemption center;
(E) A reverse vending machine; or
(F) A drop-off redemption center operating in conjunction with an
electronic certified processor.
(6) “Commissioner” means the commissioner of environment and conservation;
(7) “Comptroller” means the office of the comptroller of the treasury;
(8) “Consumer” means a person who buys a beverage in a deposit beverage
container for use or consumption and pays the deposit;
(9) “Container recovery fee” means an amount paid to the state by a deposit
beverage distributor to defray the costs of collecting and recycling deposit beverage
containers and administering the deposit program;
(10) “Dealer” means a person who engages in the sale of beverages in deposit
beverage containers to a consumer for off-premises consumption in the state;
(11) “Department” means the department of environment and conservation;
(12) “Deposit beverage” means beer, ale, or other drink produced by fermenting
malt; carbonated soft drinks; carbonated and noncarbonated water, including flavored
water; tea and coffee drinks regardless of dairy-derived product content; juices, including
one hundred percent (100%) juices and juice blends; wine coolers, flavored malt
beverages and any other juice-based beverage with an alcohol content of not more than
seven percent (7%) by volume; and all nonalcoholic drinks in liquid form and intended for
internal human consumption that are contained in a deposit beverage container.
“Deposit beverage” excludes the following:
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(A) A liquid which is:
(i) A syrup;
(ii) In a concentrated form; or
(iii) Typically added as a minor flavoring ingredient in food
or drink, such as extracts, cooking additives, sauces, or
condiments;
(B) A liquid which is a drug, medical food, or infant formula as
defined by the Federal Food, Drug, and Cosmetic Act 21 U.S.C. § 301 et
seq.;
(C) A liquid which is designed and consumed only as a dietary
supplement and not as a beverage as defined in the Dietary Supplement
Health and Education Act of 1994 (Public Law 103-417);
(D) Products frozen at the time of sale to the consumer, or, in the
case of institutional users such as hospitals and nursing homes, at the
time of sale to the users;
(E) Products designed to be consumed in a frozen state;
(F) Instant drink powders;
(G) Seafood, meat, or vegetable broths, or soups, but not juices;
(H) Milk and all other dairy-derived products, except tea and
coffee drinks containing such products; and
(I) Unmixed wine and spirits;
(13) “Deposit beverage container” means an individual, separate, sealed,
container that is not considered a refillable beverage container according to subdivision
(27), and that is made of glass, aluminum, steel, bimetal, or plastic, including
polyethylene terephthalate (PET), high-density polyethylene (HDPE) and all other plastic
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types and grades, in sizes less than or equal to two (2) liters, and used for containing, at
the time of sale to the consumer, a deposit beverage intended for use or consumption in
this state;
(14) “Deposit beverage container fund,” hereinafter the “fund,” means a fund
created in the state treasury by the department of revenue, into which are deposited all
program fees, deposits, fines and interest, and out of which are paid all program costs,
refund values, handling fees, administrative fees, disposal costs and other allocations;
(15) “Deposit beverage container program,” hereinafter the “program,” means an
administrative entity created within the division of solid waste management of the
department of environment and conservation, to carry out the requirements of this part;
(16) “Deposit beverage distributor” means a person who is a manufacturer of
beverages in deposit beverage containers sold in this state, or who imports and engages
in the sale of filled deposit beverage containers to a dealer or consumer, and includes
federal agencies and military distributors, but does not include airlines and shipping
companies that merely transport deposit beverage containers;
(17) “Drop-off redemption center” means a certified redemption center, typically
located adjacent to a participating grocery store, and operating in conjunction with an
electronic certified processor as defined in subdivision (18). Drop-off redemption centers
accept bags of deposit beverage containers from participating consumers; provide barcoded
labels for the bags; ensure that the labeled bags are transported to and
processed by an electronic certified processor; and provide automated teller machines
wherein participants may review their redemption accounts and print credit slips to be
redeemed inside the participating grocery store;
(18) “Electronic certified processor” means a type of certified processor operating
in conjunction with one (1) or more drop-off redemption centers. Electronic certified
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processors automatically scan, sort, and cancel empty deposit beverage containers that
have been received from participating consumers at drop-off redemption centers;
electronically record all transaction information, including quantities, materials and
refund amounts due; and post the refund amounts to consumers’ redemption accounts;
(19) “Fiscal year” means the twelve-month period beginning on any July 1 and
ending on the following June 30;
(20) “Handling fee” means an amount paid by the state to a certified redemption
center to defray the costs of, and provide a reasonable financial return for, receiving,
quantifying, sorting, storing, documenting, canceling (if authorized) and ensuring that
redeemed deposit beverage containers are received by a certified processor;
(21) “Import” means to buy, bring, or accept delivery of deposit beverage
containers from an address, supplier, or any entity outside of the state;
(22) “Importer” means any person who buys, brings, or accepts delivery of
deposit beverage containers from outside the state for sale or use within the state;
(23) "Microsite redemption center” means a portable, attended roll-off trailer
designed and equipped to serve as a certified redemption center, and typically located in
the parking lot of a host grocery store or other retailer. Redemption refunds are typically
issued in the form of a credit slip that the consumer may redeem for cash or apply
toward purchases inside the host grocery store or retailer;
(24) “Mobile redemption center” means a certified redemption center designed to
bring redemption services to residences, institutions, conventions, businesses and other
entities, either on a one-time or on-going basis. Mobile redemption centers may operate
independently, or they may be operated in conjunction with another certified redemption
center or a certified processor;
(25) “On-premises consumption” means consumption of a deposit beverage by a
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consumer immediately and within the area under control of the establishment, including
bars, restaurants, passenger ships, and airplanes;
(26) "Person” means an individual, partnership, firm, association, public or private
corporation, federal agency, the state or any of its political subdivisions, trust, estate, or
any other legal entity;
(27) “Refillable beverage container” means a beverage container that is intended
to be returned intact to the manufacturer or distributor to be washed, refilled and resold;
that is sold in a container which has a brand name permanently marked on it; and that
bears a manufacturers’ refund value of at least five cents (5¢); and
(28) “Reverse vending machine” means a self-service certified redemption
center, typically located adjacent to a grocery store, into which a consumer feeds empty
deposit beverage containers. The machine electronically scans the container’s bar code,
sorts and cancels the container, records the transaction information, and issues a refund
in the form of a redeemable credit slip, cash or donation to a designated charity.
SECTION 4.
(a) By September 1, 2009, all deposit beverage distributors operating within the
state shall register with the department of revenue in a manner and form prescribed by
the department of revenue. After September 1, 2009, any person who desires to conduct
business in the state as a deposit beverage distributor shall register with the department
of revenue no later than one month prior to the commencement of the business.
(b) All deposit beverage distributors shall maintain records reflecting the
manufacture and importation of beverages in deposit beverage containers as well as in
refillable beverage containers. The records shall be made available, upon request, for
inspection by the department of revenue and the department of environment and
conservation; provided, that any proprietary information obtained by either department
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shall be kept confidential and shall not be disclosed to any other person, except:
(1) As may be reasonably required in an administrative or judicial
proceeding to enforce any provision of this act or any rule adopted pursuant to
this part; or
(2) Under an order issued by a court or administrative agency hearings
officer.
SECTION 5.
(a) Beginning on October 1, 2009, every deposit beverage distributor shall pay
to the department of revenue a container recovery fee for each deposit beverage
container manufactured in or imported into the state. The fee shall be imposed only once
on the same deposit beverage container, and shall be implemented in phases as
follows:
(1) The amount of the container recovery fee from October 1, 2009, until
March 31, 2011, shall be one-quarter of one cent (0.25¢) per deposit beverage
container;
(2) Beginning on April 1, 2011, the amount of the container recovery fee
shall increase to one-half of one cent (0.5¢) per deposit beverage container and
shall remain at that level until December 31, 2011; and
(3) Beginning on January 1, 2012, the amount of the container recovery
fee shall increase to one cent (1¢) per deposit beverage container, and shall
remain at that level until changed by an act of the general assembly.
(b) Payment shall be accompanied by an inventory report, in a manner and form
prescribed by the department of revenue, that identifies the number of beverages in
deposit beverage containers, by container size and type, manufactured in or imported
into the state during the reporting period.
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(c) All inventory reports and payments shall be made monthly and received no
later than the fifteenth day of the month following the end of the reporting period.
(d) Payment shall be made by check or money order payable to the "Department
of Revenue, State of Tennessee”.
(e) No local government shall impose or collect any assessment or fee on
deposit beverage containers for the same or similar purpose that is the subject of this
part.
SECTION 6.
(a) Beginning March 1, 2011, every deposit beverage distributor shall pay to the
department of revenue a deposit on each deposit beverage container manufactured in or
imported into the state.
(b) The deposit shall be five cents (5¢), and shall remain at that level until
changed by an act of the general assembly.
(c) Payment of the deposit shall be made simultaneously with, and according to
the same terms as, payment of the container recovery fee as described in Section 5(b)-
(e).
SECTION 7.
(a) Beginning April 1, 2011, every deposit beverage distributor shall charge the
dealer or consumer a deposit equal to the refund value for each deposit beverage
container sold in Tennessee. The deposit charge shall appear as a separate line item on
any invoice or sales receipt. None of the deposit charge shall be subject to any state tax
under title 67.
(b) Beginning April 1, 2011, every dealer shall charge the consumer at the point
of sale a deposit equal to the refund value for each deposit beverage container sold in
Tennessee, except on beverages intended for on-premises consumption. The deposit
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charge shall appear as a separate line item on any sales receipt or invoice. None of the
deposit charge shall be subject to any state tax under title 67.
SECTION 8.
(a) Beginning April 1, 2011, every deposit beverage container sold in this state
shall have a Tennessee refund value of five cents (5¢). The refund value is the amount
of the deposit required. Once a refund value has been applied to a deposit beverage
container, the deposit on that container may not be changed, and may not be collected
more than once.
(b) The refund value shall be clearly printed, embossed, stamped, labeled, or
otherwise marked on the container, along with the word “Tennessee” or the letters “TN”.
The names or letters representing other states with comparable deposit legislation may
also be included in the indication of refund value. Other indications may be required as
specified in rules, and in a form and manner prescribed by the board.
(c) Each deposit beverage container shall encode within the universal product
code or similar machine-readable indicia, information regarding the size and type of
container and the refund value of the container in the states in which the container is
intended to be sold.
(d) Inventory already in circulation on April 1, 2011, shall be affixed or sold with
an adhesive sticker bearing the refund value of the container, the words "Tennessee" or
the letters "TN," and a bar code bearing the redemption information. These stickers shall
be purchased from the department of revenue by the beverage distributors, who shall
pay the deposit value of five cents (5¢) per sticker.
(e) This section does not apply to any type of refillable beverage container.
SECTION 9.
(a) There is established in the state treasury by the department of revenue the
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“deposit beverage container fund”, hereafter “fund”, into which shall be deposited all:
(1) Revenues generated from the container recovery fee;
(2) Revenues generated from the deposit beverage container deposit;
(3) Accrued interest from this fund; and
(4) Fines and penalties assessed for violations of this part.
(b) Moneys in the fund shall be used to:
(1) Reimburse refund values for deposit beverage containers redeemed
by certified redemption centers pursuant to Section 17;
(2) Pay handling fees for deposit beverage containers redeemed by
certified redemption centers pursuant to Section 21;
(3) Pay administrative fees to certified processors pursuant to Section 22;
(4) Reimburse disposal costs to certified processors pursuant to Section
20;
(5) Pay certified redemption centers or certified processors their share of
fines collected pursuant to Section 29;
(6) Fund all administrative, accounting, auditing, and compliance activities
associated with the deposit beverage container program;
(7) Employ personnel to oversee the implementation of the deposit
beverage container program, including permitting and enforcement activities; and
(8) Defray associated office expenses.
(c) Pursuant to Section 10, monies deposited in the fund shall also be used to:
(1) Reimburse the department of transportation for the loss of funding of
the existing county litter grants program provided for in §§ 41-2-123, 57-5-201,
and 67-4-402, and pursuant to subsection (a) of Section 10;
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(2) Reimburse local governments for any loss in additional revenue that is
not provided for in subdivision (c)(1) and, pursuant to Section 31, that is
attributable to the repeal of Chapter 86 of the Public Acts of 2005 relative to tax
increases imposed by Chapter 307 of the Public Acts of 1981, and extended by
Chapter 769 of the Public Acts of 1984, Chapter 33 of the Public Acts of 1987,
Chapter 30 of the Public Acts of 1991, Chapter 2 of the Public Acts of 1995,
Chapter 81 of the Public Acts of 1999; and Chapter 86 of the Public Acts of 2005.
(d) Monies deposited in the fund may also be used to:
(1) Establish or support certified redemption centers, or both establish
and support such centers, including microsite certified redemption centers,
pursuant to Section 16;
(2) Support certified processors; and
(3) Provide grants to local governments for solid waste management,
recycling, litter control, and other programs and activities related to the purposes
of this part.
(e) Any moneys remaining in the fund at the end of any fiscal year shall escheat
to the state, shall remain in reserve until expended for purposes consistent with or
authorized by this act, and shall not revert to the general fund on any June 30. Any
excess revenues from interest earned by such revenues shall not revert on any June 30,
but shall remain available for expenditure in subsequent fiscal years. Any unexpended
allocation from such reserve shall not revert to the general fund on any June 30, but
shall remain available for expenditure in subsequent fiscal years.
SECTION 10.
The following annual allocations shall be made from the fund by the department of
revenue:
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(1) A sum sufficient shall be allocated annually from the fund to reimburse the
department of transportation for the loss of funding of the existing county litter grants
program, including funding for litter education and eradication activities by county
governments and Keep Tennessee Beautiful, provided in §§ 41-2-123, 57-5-201, and
67-4-402.
(A) Payment shall be made annually to the department of transportation,
no later than September 1 of each year. The first payment shall be made no later
than September 1, 2010;
(B) The amount of payment shall be based on sales of malt beverages
and soft drinks in Tennessee during the preceding fiscal year, as determined by
tax returns filed with the department of revenue by manufacturers, bottlers,
importers or distributors of malt beverages and soft drinks;
(C) The payment amount shall be equal to the sum of the products of the
following calculations:
(i) Fifty cents ($0.50) per taxable 31-gallon barrel or partial barrel of malt
beverage sold during the payment period; and
(ii) Four-tenths of one percent (0.4%) of taxable gross receipts of soft
drinks sold during the payment period; and
(2) A sum sufficient shall be allocated annually to reimburse local governments
for any loss in additional revenue that is not provided for in subdivision (1) of this section
and pursuant to Section 31, that is attributable to the repeal of chapter 86 of the Public
Acts of 2005 of the tax increases imposed by Chapter 307 of the Public Acts of 1981,
and extended by Chapter 769 of the Public Acts of 1984, Chapter 33 of the Public Acts
of 1987, Chapter 30 of the Public Acts of 1991, Chapter 2 of the Public Acts of 1995,
Chapter 81 of the Public Acts of 1999; and Chapter 86 of the Public Acts of 2005.
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SECTION 11.
(a) The deposit beverage container program shall be administered by the
division of solid waste management within the department of environment and
conservation, with accounting functions performed by the department of revenue.
(b) The board shall create a separate administrative entity within the division of
solid waste management, with dedicated positions funded by the deposit beverage
container fund. This entity shall be known as the deposit beverage container program.
(c) The commissioner of revenue may contract the accounting services of a third
party to meet the accounting requirements of the deposit beverage container program.
The costs for this service shall be reimbursed by the deposit beverage container fund.
(d) The department may produce brochures, websites, videos and other
promotional materials that the board determines to be necessary to inform the public
about the goals, operations, benefits and outcomes of the deposit beverage container
program.
SECTION 12. The comptroller of the treasury shall conduct a management and financial
audit of the deposit beverage container program for fiscal years 2010-2011 and 2011-2012, and
for each fiscal year thereafter ending in an even-numbered year. The comptroller of the treasury
shall submit the audit report, including the amount of unredeemed refund value and
recommendations, to the general assembly and the departments of revenue and environment
and conservation on or before January 2 following the end of the preceding reporting period.
The costs incurred by the comptroller of the treasury for the audit shall be reimbursed by the
deposit beverage container fund. The comptroller of the treasury may contract the audit services
of a third party to conduct the audit.
SECTION 13. The board and the department of revenue are authorized to promulgate
rules and regulations to effect the purposes of this act. All such rules and regulations shall be
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promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4,
chapter 5.
SECTION 14. Full implementation of the deposit beverage container program shall
commence on April 1, 2011.
SECTION 15. Every dealer shall post a clear and conspicuous sign at each public
entrance to the dealer's place of business, which specifies the name, address, phone number
and hours of operation of the closest certified redemption centers.
SECTION 16. The board shall promulgate by rule the definition of an underserved area
with regard to certified redemption centers. If an area is underserved according to this definition,
the department, with input from the affected county, shall use its best efforts to see that a
certified redemption center or microsite certified redemption center is established in that area. If
no other funding is available, monies from the deposit beverage container fund may be used to
establish and support the certified redemption center or microsite certified redemption center.
SECTION 17.
(a) Prior to participating in the program, any redemption center wishing to
operate in Tennessee shall be certified by the department according to regulations
promulgated by the board. These regulations shall require that all information submitted
to the department be under penalty of perjury. Applications for certification shall be filed
with the department, in a form and manner prescribed by the board.
(b) Municipal, metropolitan, and county governments, nonprofit organizations,
dealers, businesses, existing processors, and individual persons are eligible to apply for
certification to operate a certified redemption center.
(c) The department shall establish criteria to determine the number of certified
redemption centers needed to adequately serve each county, based on population
density, population distribution, consultation with the respective counties and other
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factors. The department may use these criteria in issuing certifications.
(d) The department may, at any time, review the certification of a certified
redemption center. After written notice to the person responsible for the establishment
and operation of the certified redemption center, the department, after it has afforded the
certified redemption center operator a hearing in accordance with the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5, may withdraw the
certification of the center if it finds that there has not been compliance with applicable
laws, rules, permit conditions, or certification requirements.
(e) All certified redemption centers shall:
(1) Accept all types of empty deposit beverage containers on which a
Tennessee deposit has been paid;
(2) Accept deposit beverage containers from the public a minimum
number of hours or days per week, according to rules promulgated by the board;
(3) Maintain redemption areas in full compliance with applicable laws and
according to orders and rules established by the board, including permitting and
certification requirements;
(4) Take reasonable actions to identify, and prevent payment of a refund
value on, any beverage container or other product on which a Tennessee deposit
has not been paid, including containers that the certified redemption center
knows, or ought to know, have been brought into the state from another state;
(5) Determine the quantities of deposit beverage containers by manual
count, electronic scan, weight, volume or other method authorized by the board,
and in a form and manner prescribed by the board;
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(6) Pay either to the consumer, or to a charity or other recipient
designated by or intended by the consumer, an amount not less than the
established refund value for all valid deposit beverage containers;
(7) Maintain a log of consumer transactions, including amounts donated
to charity or other designated organization, and the name and address of the
charity or organization;
(8) Sort, consolidate, and, if authorized by the department, cancel the
redeemed deposit beverage containers according to rules promulgated by the
board;
(9) Take reasonable precautions to ensure that redeemed deposit
beverage containers are placed in a secure area while awaiting purchase by a
certified processor;
(10) Ensure that all redeemed deposit beverage containers are
purchased by a certified processor, at prices consistent with prevailing market
scrap values, transportation costs and other factors. If a container material has a
market scrap value of zero or less than zero, the negative value shall be noted
on any transaction receipts, and the payment entered as zero;
(11) Provide to the certified processor, or the processor’s agent, a
shipping report, in a form and manner prescribed by the board, and including but
not limited to the following information:
(A) The individual-unit quantities, by container type and collectively, of all
deposit beverage containers being shipped to the certified processor, and
whether quantities in each instance were determined by manual count, electronic
scan, weight, volume, or a combination thereof;
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(B) The amounts paid in refund values for the redeemed deposit
beverage containers, by container type and collectively;
(C) Weight tickets, if applicable;
(D) Printouts of electronic transaction logs, if applicable;
(12) Prepare, maintain, and provide to the department upon request, all
records and documentation of redemption activity, including but not limited to
consumer transaction logs, shipping reports, weight tickets, transaction receipts
received from certified processors, electronic transaction printouts as applicable,
and any documents authorizing the canceling of redeemed deposit beverage
containers; and
(13) Provide to the department, in a form and manner prescribed by the
board, and no later than October 1 of each year, a summary of redemptioncenter
activity for the preceding fiscal year, including but not limited to, quantities
of deposit beverage containers redeemed, by container type and collectively; the
amount of charitable donations made, and the name and address of the receiving
charities.
(f) Any certified redemption center that wishes to cancel redeemed deposit
beverage containers as part of its regular handling procedures, must apply for and
receive authorization to do so from the department, and shall perform and document the
cancellations in a form and manner prescribed by the board.
(g) Any certified redemption center that wishes to accept refillable beverage
containers from consumers shall do the following:
(1) Pay to the consumer the manufacturer’s refund value for the refillable
beverage container;
(2) Record the transaction in the consumer transaction log;
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(3) Ensure that the refillable beverage container is received by a certified
processor, willing purchaser or originating beverage distributor, who shall
reimburse the manufacturer’s refund value to the certified redemption center. The
certified redemption center may negotiate a handling fee for the return of these
containers.
(h) The quantity of beverage containers, including refillable beverage containers,
recycled by a certified redemption center shall be credited to the local government where
the certified redemption center is located for purposes of calculating solid waste
diversion amounts and meeting regional solid waste reduction goals.
SECTION 18. Reverse vending machines may be used to satisfy the requirements of
Section 17, except that that reverse vending machines are not required to accept refillable
beverage containers; and provided that:
(1) The machines accept all types of empty deposit beverage containers that
bear a valid Tennessee refund value;
(2) The machines pay out the full amount of the refund value via cash, credit
slip, electronic credit or designated donation;
(3) The machines are monitored during operating hours by an attendant;
(4) The machines are routinely serviced to ensure proper operation and
continuous acceptance of containers and payment of refunds; and
(5) Should the reverse vending machine fail to accept, recognize or process a
Tennessee deposit beverage container that is otherwise valid, the attendant shall
manually accept the container and issue the appropriate refund value. The reverse
vending machine shall display a toll-free phone number and mailing address that the
consumer may contact if the conflict cannot be resolved, or if no attendant is available.
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SECTION 19. Certified redemption centers may refuse to pay the refund value on any
deposit beverage container which:
(1) Is broken, corroded, dismembered or flattened;
(2) Contains a free-flowing liquid;
(3) Does not properly indicate a refund value; or
(4) Contains or bears a significant amount of foreign material.
SECTION 20.
(a) Prior to participating in the program, processors shall be certified by the
department and registered with the department of revenue according to regulations
promulgated by the board. These regulations shall require that all information submitted
to the department or to the department of revenue be under penalty of perjury.
Applications for certification shall be filed with the department, in a form and manner
prescribed by the board. Applications for registration shall be filed with the department of
revenue, in a form and manner prescribed by the commissioner of revenue.
(b) The department may, at any time, review the certification of a certified
processor. After written notice to the person of record responsible for the establishment
and operation of the certified processor, the department, after it has afforded the certified
processor operator a hearing in accordance with the Uniform Administrative Procedures
Act, compiled in title 4, chapter 5, may withdraw the certification of the facility if it finds
that there has not been compliance with applicable laws, rules, permit conditions, or
certification requirements.
(c) Certified processors shall:
(1) Accept from certified redemption centers all types of deposit beverage
containers that have been redeemed, quantified, sorted and, if authorized,
canceled in accordance with program rules, and that are accompanied by a
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shipping report prepared by the certified redemption center in accordance with
program rules;
(2) Independently determine quantities of each type of deposit beverage
container, either by manual count, electronic scan, volume, weight, or a
combination of these methods, according to standards, averages and rules
prescribed by the board; and document the quantities in a form and manner
prescribed by the board;
(3)
(A) Perform a random sampling or samplings, in a form and
manner prescribed by the board, of the redeemed deposit beverage
containers, to ascertain that they bear a valid Tennessee refund value;
(B) If a significant discrepancy exists between the redemption
quantities stated on the shipping report prepared by the certified
redemption center, and the results of the independent quantification
performed by the certified processor; or if a random sampling of
redeemed beverage containers shows a significant proportion of
beverage containers that do not bear a valid Tennessee refund value, the
certified processor may withhold payment to the certified redemption
center, or the department of revenue may withhold payment to the
certified processor, pending further investigation by the department,
according to procedures prescribed by the board. The board shall
establish by rule what constitutes “significant discrepancy” and “significant
proportion” relative to this section;
(4) Cancel the redeemed deposit beverage containers, if they have not
already been canceled;
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(5)
(A) Process the containers as needed for remanufacturing or sale
to a willing purchaser;
(B) If, after making a good-faith effort, a certified processor is
unable to locate a willing purchaser for beverage container material, the
certified processor shall submit to the department a disposal request
form, in a form and manner prescribed by the department, that describes
the material and quantities, details efforts made to find a willing
purchaser, and specifies the intended manner and location of disposal.
The material shall not be disposed of without a written authorization to do
so by the department. All rejected loads of deposit beverage containers
shall be available for and subject to inspection by the department. The
certified processor may recover costs associated with handling and
disposing of the rejected material, by presenting to the department of
revenue a written request for reimbursement, in a form and manner
prescribed by the board, and accompanied by the disposal authorization
and all associated receipts. The board shall establish by rule what
constitutes “good-faith effort” relative to this section;
(6)
(A) Issue payment to certified redemption centers, in an amount
that is the sum of all of the following amounts:
(i) The refund value of the redeemed deposit beverage containers
received from the certified redemption center;
(ii) The prevailing handling fee for the redeemed deposit beverage
containers, pursuant to Section 21; and
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(iii) Payment for the container materials, in an amount that reflects and is
consistent with prevailing market scrap prices, incurred transportation or delivery
costs and other factors.
(B) Payment shall be made to the certified redemption center
within ten business days, unless a significant discrepancy exists pursuant
to this subdivision (c)(6), in which case payment may be withheld pending
the outcome of an investigation by the department, according to
procedures prescribed by the board;
(7) Provide to the certified redemption center a transaction receipt,
prepared in a form and manner prescribed by the board. Information in the
transaction receipt shall include at a minimum:
(A) The individual-unit quantities, by container type and collectively, of
deposit beverage containers received from the certified redemption center, and
whether quantities in each instance were determined by manual count, electronic
scan, volume, weight, or a combination thereof;
(B) The weight, by container type and collectively, of deposit beverage
containers received from the certified redemption center;
(C) The amounts paid in refund values to the certified redemption center,
by container type and collectively;
(D) The amounts paid in handling fees to the certified redemption center,
by container type and collectively; and
(E) The amounts paid in scrap values, by unit and in total, for each type of
deposit beverage container purchased from the certified redemption center.
Containers with a market value of zero or less than zero shall be recorded, and
the market value noted, but the payment shall be entered as zero;
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(8) Submit to the department of revenue, pursuant to Section 23 and in a
form and manner prescribed by the board, a processor’s invoice for
reimbursement or payment of refund values, handling fees, and administrative
fees incurred in each separate transaction with a certified redemption center;
(9) For any refillable beverage containers received from the certified
redemption center, reimburse the manufacturer’s refund value to the certified
redemption center and ensure that the refillable beverage containers are
returned to the originating beverage distributor or sold to a willing purchaser. The
certified processor may negotiate a handling fee with the originating distributor or
willing purchaser for the return of these containers; and
(10) Maintain copies of all documentation, including but not limited to
shipping reports, weight tickets, transaction receipts, requests-for-disposal and
end-market information, and make them available, upon request, to the
departments of revenue and environment and conservation.
SECTION 21.
(a) Beginning April 1, 2011, the department of revenue shall pay to a certified
redemption center, by agency of a certified processor, a handling fee for each deposit
beverage container that has been redeemed by the certified redemption center and
received by the certified processor in accordance with regulations and standards
established by the board.
(b) For the period from April 1, 2011, through December 31, 2012, the amount of
the handling fee shall be two cents (2¢) per container.
(c) Beginning January 1, 2013, and annually thereafter on every January 1, the
handling fee shall be renewed or revised by the board, in consultation with the
commissioner of revenue, and based on review of redemption rates for the preceding
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fiscal year, the availability of funds in the deposit beverage container fund, and other
factors. The handling fee shall not be more than two cents (2¢) per container nor less
than one cent (1¢) per container. These amounts shall remain in effect until changed by
an act of the general assembly.
SECTION 22. For every redeemed deposit beverage container received by a certified
processor from a certified redemption center in accordance with rules and regulations
prescribed by the board, the department of revenue shall pay to the certified processor an
administrative fee equal to two percent (2%) of the collective refund values of the deposit
beverage containers, to defray the certified processor’s costs of complying with the
administrative requirements of this program.
SECTION 23.
(a) Beginning April 1, 2011, for every completed redemption-center transaction,
a certified processor shall submit to the department of revenue a processor’s invoice for
an amount equal to the sum of all of the following:
(1) The total amount of refund values paid by the certified processor to
the certified redemption center;
(2) The total amount of handling fees paid by the certified processor to
the certified redemption center; and
(3) The total amount of administrative fees due to the certified processor
pursuant to Section 22.
(b) The processor’s invoice shall be accompanied by supporting documentation
that shall include but not be limited to:
(1) A copy of the transaction receipt prepared by the certified processor;
(2) A copy of the shipping report prepared by the certified redemption
center; and
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(3) Where applicable, a printout of any electronic transaction logs.
(c) Certified processors may submit multiple invoices at once, provided that, the
required information and documentation are submitted for each separate redemptioncenter
transaction, and that every redemption-center transaction is invoiced within thirty
(30) days.
(d) Payment must be made by the department of revenue within ten (10)
business days of receipt and approval of an invoice and accompanying documentation.
SECTION 24. Deposit beverage distributors, certified redemption centers, and certified
processors shall, upon request, and under penalty of perjury, make their records available for
inspection by the departments of revenue and environment and conservation, duly authorized
agents of these departments, the comptroller of the treasury, or the comptroller’s auditor.
SECTION 25. The department, in consultation with the department of revenue, shall
compile a report on the deposit beverage container program for each fiscal year, except that the
first such report shall be for the period from October 1, 2009, through June 30, 2011. These
reports shall be delivered to the general assembly and the governor on January 2 following the
end of the preceding reporting period. Reports shall contain, but not be limited to:
(1) Performance indicators;
(2) Revenues and expenditures;
(3) Measures of effectiveness, including recycling rates and impacts on litter; and
(4) Economic impacts, including numbers of certified redemption centers, number
of jobs supported or created, and tonnage, market value and end uses of recovered
materials.
SECTION 26.
(a) The board shall convene an advisory committee to assist it in developing any
rules needed to implement this part. The board shall select members of the committee
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so as to obtain input on the state level, as well as from representatives of any or all of
the following:
(1) Counties;
(2) Municipalities;
(3) Metropolitan areas;
(4) Solid waste managers;
(5) Dealers;
(6) Consumers;
(7) Redemption centers;
(8) Redemption service providers;
(9) Recyclers;
(10) Manufacturing end-users;
(11) Nonprofit organizations;
(12) Keep Tennessee Beautiful;
(13) Bottlers;
(14) Distributors;
(15) Importers, and
(16) Others as recommended by the commissioner.
(b) Members of the committee shall be appointed by the commissioner and shall
serve at the commissioner’s pleasure. A simple majority of the committee members shall
constitute a quorum for the purposes of recommending rules and providing input to the
commissioner.
SECTION 27. Except as provided otherwise in Section 28, any person who violates any
provision of this part or any rule adopted pursuant to this part shall be assessed a civil penalty
of not more than ten thousand dollars ($10,000) for each separate offense. Each day of each
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violation shall constitute a separate offense. Any action taken to impose or collect the penalty
provided for in this section shall be made through administrative or civil actions.
SECTION 28.
(a) If the board determines that any person has violated or is violating any
provision of this part, any rule adopted pursuant to this part, or any term or condition of a
certification or permit issued pursuant to this part, the board may do any one (1) or more
of the following:
(1) Issue a field citation assessing an administrative penalty and ordering
corrective action immediately or within a specified time;
(2) Issue an order assessing an administrative penalty for any past or
current violation;
(3) Require compliance immediately or within a specified time; and
(4) Commence a civil action in chancery or circuit court in Davidson
County, to seek appropriate relief, including a temporary, preliminary, or
permanent injunction against violations of this act, the imposition and collection
of civil penalties or other relief.
(b) Any order issued pursuant to this section may include a suspension,
modification, or revocation of a certification or permit issued pursuant to this act and
shall state with reasonable specificity the nature of the violation.
(c) Any order issued under this part shall become final, unless the person or
persons named in the order request, in writing, and not later than twenty (20) days after
the notice of order is served, a hearing before the board. Any penalty imposed pursuant
to this part shall become due and payable twenty (20) days after the notice of penalty is
served, unless the person named therein requests in writing a hearing before the board.
Whenever a hearing is requested on any penalty imposed pursuant to this part, the
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penalty shall become due and payable upon the issuance of a final order confirming the
penalty in whole or in part.
(d) Any hearing conducted pursuant to this section shall be conducted as a
contested case pursuant to the Uniform Administrative Procedures Act, compiled in title
4, chapter 5. If, after a hearing held pursuant to this section, the board finds that a
violation or violations have occurred, the board shall:
(1) Affirm or modify any penalties imposed or modify or affirm the order
previously issued; or
(2) Issue an appropriate order or orders for the prevention, abatement, or
control of the violation involved, or for the taking of such other corrective action
as may be appropriate.
(e) If, after a hearing on an order or penalty contained in a notice, the board
finds that no violation has occurred or is occurring, it shall rescind the order or penalty.
Any order issued after a hearing may prescribe the date or dates by which the violation
or violations shall cease and may prescribe timetables for necessary action in
preventing, abating, or controlling the violation.
(f) If the amount of any penalty is not paid to the department within thirty (30)
days after an order becomes final, the board may institute a civil action in the name of
the state to collect the final penalty amount. In any proceeding to collect the
administrative penalty imposed, the board need only show that:
(1) Notice was given;
(2) A hearing was held or the time granted for requesting a hearing
expired without a request for a hearing;
(3) The administrative penalty was imposed; and
(4) The penalty remains unpaid.
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(g) In connection with any hearing held pursuant to this section, the board shall
have the power to subpoena the attendance of witnesses and the production of evidence
on behalf of all parties.
SECTION 29.
(a) The obligations to accept empty beverage containers and pay the refund
value and handling fees for such containers as described in this act apply only to
containers originally sold in this state as filled deposit beverage containers.
(b) It is an offense for a person who, during any single transaction, tenders or
tries to tender to a certified redemption center more than twenty-four (24) empty
beverage containers that the person knows or has reason to know were not originally
sold in this state as filled deposit beverage containers commits a Class A misdemeanor
with fines as provided in subsection (d).
(c) Certified redemption centers must conspicuously display a sign in letters that
are at least one inch in height with the following information:
“WARNING: Persons tendering containers for redemption that were not
originally purchased in Tennessee may be subject to a fine of the greater of one
hundred dollars ($100) per container or twenty-five thousand dollars ($25,000)
for each tender.”
(d) A person who violates this section is subject to a fine of up to the greater of
one hundred dollars ($100) for each container or twenty-five thousand dollars ($25,000)
for each tender of more than twenty-four (24) containers.
(e) The balance of each fine collected pursuant to this section, after deducting
court costs shall be placed in the deposit beverage container fund and shall remain in
the fund to be expended for activities authorized by this part; with the exception that, if
the violation was detected and reported by a certified redemption center or a certified
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processor, then the fine shall be disposed of as follows: fifty percent (50%) of the fine
shall remain in the fund to be expended for activities authorized by this act, and fifty
percent (50%) of the fine shall be awarded to the certified redemption center or certified
processor reporting the violation, as an incentive to be vigilant for and respond to illegal
tenders and/or attempts to otherwise defraud the program.
SECTION 30. The provisions of this act shall not be construed to be an appropriation of
funds and no funds shall be obligated or expended pursuant to this act unless such funds are
specifically appropriated by the general appropriations act.
SECTION 31. Section 1 of Chapter 86 of the Public Acts of 2005 is amended by deleting
the language "June 30, 2010, or until June 30 of any year following the enactment of any state
or federal law which imposes mandatory deposits by consumers on beverage containers sold in
Tennessee," and by substituting instead the language "June 30, 2009".
SECTION 32. This act shall take effect upon becoming a law, the public welfare requiring it.