THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY RAFFERTY, EICHELBERGER, FERLO, BROWNE, ORIE, WASHINGTON, BRUBAKER, ERICKSON, GREENLEAF, VANCE, WAUGH AND BOSCOLA, MARCH 6, 2009

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, MARCH 6, 2009  

AN ACT

Providing for the return of beverage containers and for the

powers and duties of the Department of Environmental

Protection; imposing a returnable beverage container

assessment on distributors; providing for duties of

returnable beverage distributors; establishing the Returnable

Beverage Container Fund; and providing for a returnable

deposit value on returnable beverage containers, for

redemption of empty returnable beverage containers, for

redemption centers, for payment of claims from the fund and

for annual report to General Assembly.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

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

Beverage Container Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Beverage."  Any of the following:

(1)  Soda water or similar carbonated soft drink.

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

mineral water, flavored and unflavored water, spring water,

vitamin water and any other water beverage, tea, sports

drink, isotonic drink, beer and other malt beverages.

(3)  Any other nonalcoholic carbonated and noncarbonated

drink in liquid form that is intended for human consumption.

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

derived from a dairy product, infant formula and medicine

approved by the Food and Drug Administration.

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

beverage container for use or consumption and pays the deposit.

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

returnable beverage containers to a consumer for off-premises

consumption in this Commonwealth.

"Department."  The Department of Environmental Protection of

the Commonwealth.

"Fund."  The Returnable Beverage Container Fund established

under section 5.

"On-premises consumption."  The consumption of returnable

beverages by a patron immediately and within the area under

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

bar, restaurant, passenger ship or airplane.

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

beverage container for use or consumption and does not pay the

deposit.

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

public or private corporation, Federal agency, the Commonwealth

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

entity.

"Recycling facility."  The contiguous land and structures and

other appurtenances and improvements on the land used for the

collection, separation, recovery and sale or reuse of secondary

resources that would otherwise be disposed of as solid waste and

are an integral part of a manufacturing process aimed at

producing a marketable product made of postconsumer material.

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

who demands the refund value in exchange for an empty returnable

beverage container.

"Redemption center."  An operation that accepts from

consumers and provides the refund value for empty returnable

beverage containers intended to be recycled and ensures that the

empty returnable beverage containers are properly recycled.

"Redemption rate."  The percentage of returnable beverage

containers redeemed over a reporting period. The percentage is

calculated by dividing the number of returnable beverage

containers redeemed by the number of returnable beverage

containers sold and then multiplying that number by one hundred.

"Refillable beverage container."  Any returnable beverage

container that ordinarily is returned to the manufacturer to be

refilled and resold.

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

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

plastic or any combination of those materials and is produced

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

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

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

composed of paper-based biodegradable material and aseptic

multimaterial packaging.

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

who:

(1)  is a manufacturer of beverages in returnable

beverage containers in this Commonwealth; or

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

beverage containers to a dealer or consumer in this

Commonwealth.

The term includes a Federal agency and military distributor but

does not include an airline or shipping company that merely

transports returnable beverage containers.

Section 3.  Returnable beverage container assessment on

distributors.

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

beverage distributor shall pay to the department, on a monthly

basis, a returnable beverage container assessment on each

returnable beverage container manufactured in or imported into

this Commonwealth. The returnable beverage container assessment

shall not apply to returnable beverage containers exported for

sale outside of this Commonwealth.

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

assessment shall be 5¢ per returnable beverage container and may

be imposed only once on the same returnable beverage container.

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

any assessment or fee on returnable beverage containers for the

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

Section 4.  Returnable beverage distributors.

(a)  Duty to register.--

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

beverage distributor shall register with the department,

using forms prescribed by the department, and shall notify

the department of any change in address or other information

previously submitted.

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

conduct business in this Commonwealth as a returnable

beverage distributor shall register with the department no

later than one month prior to the commencement of the

business.

(b)  Maintenance of records.--

(1)  A returnable beverage distributor shall maintain

records reflecting the manufacture of beverages in returnable

beverage containers or the importation and the sale of filled

returnable beverage containers, as applicable.

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

for inspection by the department; provided that any

proprietary information obtained by the department shall be

kept confidential and shall not be disclosed to any other

person, except:

(i)  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 act; or

(ii)  under an order issued by a court.

Section 5.  Returnable Beverage Container Fund.

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

is established in the State Treasury. All revenues generated

from the returnable beverage container assessment shall be

deposited into the fund.

(b)  Use of fund.--

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

returnable deposit claims submitted by returnable beverage

distributors and redemption centers under section 14.

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

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

Hazardous Sites Cleanup Fund established under section 901 of

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

Hazardous Sites Cleanup Act.

Section 6.  Inventory report.

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

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

month thereafter, a returnable beverage distributor shall file

an inventory report with the department.

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

(a) shall include documentation in sufficient detail to

identify:

(1)  The number of beverages in returnable beverage

containers, by container size and type, manufactured in or

imported into this Commonwealth during the reporting period.

(2)  The number of these returnable beverage containers,

by container size and type, exported and intended for

consumption outside this Commonwealth during the reporting

period.

All information contained in an inventory report, including

confidential commercial and financial information, shall be

deemed confidential and protected from public disclosure to the

extent allowed by law.

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

returnable beverage distributor for the assessment imposed under

section 3 shall be equal to the net number of returnable

beverage containers imported or manufactured into this

Commonwealth, the total number of containers imported or

manufactured less the total number of containers exported for

consumption outside this Commonwealth, multiplied by 5¢.

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

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

month following the end of the payment period of the previous

month.

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

who annually imports or manufactures in this Commonwealth less

than 100,000 returnable beverage containers may submit reports

and payments required under this act on a semiannual basis;

provided that the semiannual report and payment period shall end

on June 30 and December 31 of each year.

Section 7.  Returnable deposit value of returnable beverage

containers.

Beginning January 1, 2010, each returnable beverage container

sold in this Commonwealth shall have a returnable deposit value

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

indicated on it as provided under section 9.

Section 8.  Sales of beverages in returnable beverage

containers.

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

2010, a returnable beverage distributor who pays the returnable

beverage container assessment to the department may add the

amount of the assessment to the cost of each returnable beverage

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

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

the invoice prepared by the distributor.

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

dealer who purchased a returnable beverage container from a

distributor who added the amount of the returnable beverage

container assessment to the cost of the returnable beverage

container paid by the dealer and which dealer sells the

returnable beverage container to a consumer may indicate the

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

prepared by the dealer.

Section 9.  Returnable beverage container requirements.

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

each returnable beverage container sold in this Commonwealth

shall clearly indicate the returnable deposit value of the

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

names or letters representing the names of other states with

comparable deposit laws may also be included in the indication

of the returnable deposit value. The returnable deposit value on

every returnable beverage container shall be clearly,

prominently and indelibly marked by painting, printing, scratch

embossing, raised letter embossing or securely affixed stickers

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

at least one-eighth inch in size.

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

type of refillable glass returnable beverage container that has

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

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

container by a dealer or returnable beverage distributor.

Section 10.  Redemption of empty returnable beverage containers.

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

dealer shall:

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

shall accept all types of empty returnable beverage

containers that bear a valid returnable deposit value for

this Commonwealth under this act.

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

beverage container, except as otherwise provided under

section 13, the amount of the returnable deposit value for

the returnable beverage container, if it bears a valid

returnable deposit value for this Commonwealth under this

act.

(3)  Ensure each returnable beverage container collected

is recycled and forward documentation necessary to support

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

the regulations adopted under this act.

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

dealer:

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

defined by regulation of the department and within two miles

of a certified redemption center that is operated

independently of a dealer;

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

regulation of the department;

(3)  who subcontracts with a certified redemption center

to be operated on the dealer's premises;

(4)  whose sales of returnable beverage containers are

only via vending machines;

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

feet of interior space;

(6)  who can demonstrate physical or financial hardship,

or both, based on specific criteria established by regulation

of the department; or

(7)  who meets other criteria established by the

department.

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

department may allow the placement of redemption centers at

greater than prescribed distances to accommodate geographical

features while ensuing adequate consumer convenience.

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

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

not a redemption center or has not subcontracted with a

redemption center shall post a clear and conspicuous sign at the

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

specifies the name, address and hours of operation of the

closest redemption center location.

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

business of selling beverages in returnable beverage containers

for on-premises consumption shall collect the used returnable

beverage containers from its patrons and either use a certified

redemption center for the collection of containers or become a

certified redemption center.

Section 11.  Redemption centers.

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

redemption center must be certified by the department.

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

redemption center shall be filed with the department on forms

prescribed by the department.

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

at any time, may review the certification of a redemption

center. After written notice to the person responsible for the

establishment and operation of the redemption center and to the

dealers served by the redemption center, the department, after

it has afforded the person a hearing in accordance with

applicable law, 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.

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

shall:

(1)  Accept all types of empty returnable beverage

containers from consumers or other persons, unless excepted

under section 13.

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

empty returnable beverage container, except as otherwise

provided under section 13, the amount of the returnable

deposit value for the returnable beverage container, if it

bears a valid returnable deposit value for this Commonwealth

under this act.

(3)  Ensure each returnable beverage container collected

is recycled and forward documentation necessary to support

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

the regulations adopted under this act.

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

redemption center shall be maintained in full compliance with

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

including permitting requirements, if deemed necessary by the

department.

Section 12.  Development of procedures.

The department shall develop procedures to facilitate the

exchange of information between returnable beverage container

manufacturers, distributors and retailers and certified

redemption centers. The procedures developed by the department

shall allow for a reasonable time period between the

introduction of a new returnable beverage product and the

deadline for submitting universal product code information to

certified redemption centers operating reverse vending machines.

Section 13.  Refusal of refund value payment for a returnable

beverage container.

A retailer or redemption center may refuse to pay the

returnable deposit value on any broken, corroded or dismembered

returnable beverage container or any returnable beverage

container that:

(1)  contains a free-flowing liquid;

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

(3)  contains a significant amount of foreign material.

Section 14.  Claims for reimbursement from the fund.

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

accepts a returnable beverage container from a consumer or other

person and pays the returnable deposit value to the consumer or

other person may submit to the department a claim for

reimbursement from the fund.

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

dealer or redemption center that submits a claim under

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

not returned.

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

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

of the containers received by material type and the average

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

beverage container basis.

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

once for each returnable beverage container.

Section 15.  Redemption center reporting.

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

dealer or redemption center shall submit to the department the

following information on forms prescribed by the department.

(1)  The number or weight of returnable beverage

containers of each material type accepted at the redemption

center for the reporting period.

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

(3)  The number or weight of returnable beverages

containers of each material type transported out of this

Commonwealth or to a permitted recycling facility.

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

receipts or acceptance receipts from permitted recycling

facilities. If the redemption center and the recycling

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

transport and weight receipts, or documentation of end use

accepted by the department, shall also be included.

(5)  Any other information deemed necessary by the

department.

Section 16.  Departmental inspections.

The records of a returnable beverage distributor, dealer,

redemption center and recycling facility shall be made

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

duly authorized agent of the department. Any proprietary

information obtained during the inspection 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 regulation adopted pursuant to this act; or

(2)  under an order issued by a court.

Section 17.  Annual report to General Assembly.

The department shall file a report with the General Assembly

on an annual basis. The report shall include:

(1)  Information on the administration of this act.

(2)  Detailed financial information on the payment of

claims from the Returnable Beverage Container Fund and the

monthly transfers to the Hazardous Sites Cleanup Fund.

(3)  Recommendations from the department as to whether

the actual claim experience of the Returnable Beverage

Container Fund necessitates adjustment of the percentage of

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

the Returnable Beverage Container Fund to be fiscally sound

for the continued payment of claims pursuant to this act.

Section 18.  Regulations.

The department may promulgate rules and regulations to

administer and enforce this act.

Section 19.  Effective date.

This act shall take effect immediately.