SP0626
LD 1578		 Session - 127th Maine Legislature
 
 LR 2574
Item 1
Bill Tracking, Additional Documents Chamber Status

An Act To Update Maine's Solid Waste Management Laws

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 38 MRSA §1611  is enacted to read:

§ 1611.  Stewardship program for small batteries

1.  Definitions.   As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A.  "Approved product" means:

(1) A covered battery or a covered battery-containing product for which its producer, individually or through a covered battery stewardship organization, has submitted a covered battery stewardship plan approved by the commissioner and the plan has been implemented to collect and recycle covered batteries or covered battery-containing products in accordance with the plan; or

(2) A covered battery-containing product that has been listed in accordance with subsection 8 as the product of a participant in a covered battery stewardship program.

B.  "Brand" means a trademark, including both a registered and an unregistered trademark, a logo, a name, a symbol, a word, an identifier or a traceable mark that identifies a covered battery or covered battery-containing product and identifies as the producer of the battery or product the owner or licensee of the brand.
C.  "Covered battery" means a new or unused primary battery or a small rechargeable battery.
D.  "Covered battery-containing product" means a new or unused primary battery-containing product or a rechargeable battery-containing product.
E.  "Covered battery stewardship organization" or "organization" means an organization appointed by more than one producer to design, submit a plan for, implement and administer a covered battery stewardship program in accordance with this section and that has accepted that appointment.
F.  "Covered battery stewardship plan" or "plan" means a plan submitted to the commissioner in accordance with subsection 3 by a producer or a covered battery stewardship organization.
G.  "Covered battery stewardship program" or "program" means a system implemented for the collection, transportation, recycling and disposal of covered batteries in accordance with a covered battery stewardship plan approved under subsection 4.
H.  "Discarded covered battery" means a covered battery that a user discarded, abandoned or sent for recycling or intended to discard, abandon or send for recycling.
I.  "Operator" means a producer or covered battery stewardship organization that implements and administers a covered battery stewardship program.
J.  "Participant" means a producer that establishes or participates in a covered battery stewardship program individually or by appointing and having that appointment accepted by a covered battery stewardship organization to operate the program on the producer's behalf.
K.  "Primary battery" means a nonrechargeable battery that weighs 2 kilograms or less, including, but not limited to, nonrechargeable alkaline, carbon-zinc and lithium metal batteries.
L.  "Primary battery-containing product" means a product that contains or is packaged with a primary battery. "Primary battery-containing product" does not include:

(1) A product from which a primary battery is not easily removed or is not intended or designed to be removed from the product other than by the manufacturer; or

(2) A medical device, as described in the Federal Food, Drug and Cosmetic Act, 21 United States Code, Section 360(c) (2012), if, when the device or battery within the device is discarded, it must be treated as biomedical waste or if changing the supplier of the battery contained in the medical device would change the registration status of the device with the United States Food and Drug Administration pursuant to the Federal Food, Drug and Cosmetic Act, 21 United States Code, Section 360 (2012).

M.  "Producer" means, with respect to a covered battery or covered battery-containing product that is sold, offered for sale or distributed for sale in the State, the following:

(1) The person that manufactures the covered battery or covered battery-containing product and sells or offers for sale in the State that battery or product under the person's own brand;

(2) If there is no person to which subparagraph (1) applies, the owner or licensee of a brand under which the covered battery or covered battery-containing product is sold or distributed in the State; or

(3) If there is no person to which subparagraph (1) or (2) applies, a person, including, but not limited to, a wholesaler or retailer, that imports the covered battery or covered battery-containing product into the United States for sale or distribution in the State.

N.  "Rechargeable battery-containing product" means a product that contains or is packaged with a small rechargeable battery. "Rechargeable battery-containing product" does not include:

(1) A product from which a rechargeable battery is not easily removed or is not intended or designed to be removed from the product other than by the manufacturer; or

(2) A medical device, as described in the Federal Food, Drug and Cosmetic Act, 21 United States Code, Section 360c (2012), if, when the device or battery within the device is discarded, it must be treated as biomedical waste.

O.  "Recycling" means any process through which a discarded covered battery or its components or by-products is transformed from its original identity or form into new usable or marketable material. "Recycling" does not include the incineration of a discarded covered battery or its components or by-products for energy recovery.
P.  "Retailer" means a person that sells or offers a covered battery or covered battery-containing product for retail sale, as defined in Title 36, section 1752, subsection 11, in the State, including through a remote offering for sale, such as a sales outlet or sales catalog or via the Internet.
Q.  "Small rechargeable battery" means a battery that contains one or more voltaic or galvanic cells, electrically connected to produce electric energy, that weighs less than 5 kilograms and that is designed to be recharged and to provide less than 40 volts direct current. "Small rechargeable battery" does not include:

(1) A battery that is not easily removed or is not intended or designed to be removed from a covered battery-containing product other than by the manufacturer;

(2) A battery that contains electrolyte as a free liquid; or

(3) A battery or battery pack that employs lead-acid technology, unless the battery or battery pack is sealed, contains no liquid electrolyte and is intended by its manufacturer to power a handheld device or to provide uninterrupted backup electrical power protection for stationary consumer covered battery-containing products or stationary office equipment.

R.  "Wholesaler" means a person that offers for sale or sells in the State a covered battery or covered battery-containing product in a sale that is not a retail sale, as defined in Title 36, section 1752, subsection 11, with the intention that the battery or product be resold in a subsequent retail sale.
2.  Product labeling.   By January 1, 2017, a producer that sells, offers for sale or distributes for sale in the State a covered battery, either as a replacement battery or packaged with or contained in a covered battery-containing product, shall, to the extent feasible, ensure that the covered battery is labeled in a manner identifying the chemistry employed in storing energy in the battery to facilitate sorting of discarded batteries by recyclers.
3.  Submission of plan.   No later than 6 months after the effective date of this section, except as specified in subsection 6 or 9, each producer of a covered battery or covered battery-containing product, individually or through a covered battery stewardship organization that has agreed to act on the producer's behalf, shall submit a plan for the establishment of a covered battery stewardship program to the commissioner for approval. The plan must include, at a minimum and where applicable:
A.  If the plan is submitted by an organization, a list of the producers participating in the organization and a list of each producer's brands of covered batteries and covered battery-containing products;
B.  A description of the outreach procedures that will be used to provide notice of the program to businesses, local agencies, retailers, wholesalers and waste transportation services;
C.  A description of the methods that will be used to responsibly manage discarded covered batteries to ensure that the components of the discarded batteries, to the extent economically and technically feasible, are recycled or otherwise responsibly managed;
D.  A description of the manner by which the program will use covered battery collection points that are established through other battery collection programs;
E.  A description of educational activities planned by the producer or organization;
F.  If the plan is submitted by an organization or by a producer that does not operate physical retail locations in the State, a description of how the program will provide convenient, free statewide collection opportunities for discarded batteries; and
G.  If the plan is submitted by an organization, a description of the financing method through which implementation of the plan will be funded. The financing method must:

(1) Allocate to producers of primary batteries and primary battery-containing products costs that are directly attributable to the recycling of primary batteries, such as reclamation costs;

(2) Allocate to producers of small rechargeable batteries and rechargeable battery-containing products costs that are directly attributable to the recycling of rechargeable batteries, such as reclamation costs; and

(3) Allocate all other costs on the basis of the weights of types of batteries collected or some other nondiscriminatory basis acceptable to participating producers of primary batteries, small rechargeable batteries, primary battery-containing products and rechargeable battery-containing products.

4.  Approval of plan.   The commissioner shall review a plan submitted under subsection 3 and make a determination of whether to approve the plan within 90 days of receipt of the plan. In conducting a review of a submitted plan, the commissioner may consult with producers, associations representing producers, covered battery stewardship organizations, retailers and recyclers.
A.  If the commissioner determines that a submitted plan fails to meet all applicable requirements of subsection 3, the commissioner shall provide to the producer or organization that submitted the plan a written notice of determination describing the reasons for rejecting the plan. No later than 45 days after receiving a written notice of determination from the commissioner rejecting a submitted plan, the producer or organization may amend the plan and resubmit the plan to the commissioner for reconsideration. The commissioner shall review an amended plan, make a determination of whether to approve the amended plan and provide a written notice of determination notifying the producer or organization of the commisioner's decision within 45 days of receipt of the amended plan. A producer or organization whose amended plan is rejected by the commissioner may appeal the commissioner's decision in accordance with section 346.
B.  If the commissioner approves a submitted plan, the commissioner shall provide to the producer or organization that submitted the plan a written notice of determination of the plan's approval. No later than 30 days after receiving a written notice of determination from the commissioner approving a submitted plan, the producer or organization shall make the approved plan available on its publicly accessible website, but is not required to make available any information contained in the approved plan protected under the Uniform Trade Secrets Act.
C.  No later than 45 days after the commissioner's approval of a submitted plan, the department shall make available on its publicly accessible website a list of participants in and brands of covered batteries and covered battery-containing products included under the approved plan or provide instructions on how to obtain such information as provided by the producer or organization that submitted the approved plan.
5.  Implementation of plan.   A producer or organization that submitted a plan approved by the commissioner under subsection 4 shall implement the plan no later than the first day of the next calendar quarter after the date the plan is approved by the commissioner, except that if the period of time between the date the plan is approved and the first day of the next calendar quarter is less than 60 days, the producer or organization shall implement the plan within 60 days after the date the plan is approved.
6.  Amendment of plan and termination of program.   This subsection governs amendment of a plan approved under subsection 4 and termination of a program established under an approved plan.
A.  An approved plan under subsection 4 may be amended at the discretion of the producer or organization that submitted the plan without approval from the commissioner if the proposed amendments do not significantly alter the likelihood that the plan will result in the successful collection and recycling of discarded batteries. If proposed amendments to an approved plan would significantly alter the likelihood that the plan will result in the successful collection and recycling of discarded batteries, including, but not limited to, amendments eliminating a substantial number of retail collection locations, adding or deleting battery chemistries to be collected, addressing threats to the financial viability of the organization or addressing disruption in transportation or service affecting the ability of the producer or organization or any service providers to collect or process covered batteries or covered battery-containing products, the producer or organization shall submit to the commissioner a revised plan describing the proposed amendments. The commissioner shall review the revised plan and make a determination of whether to approve the proposed amendments within 90 days of receipt of the revised plan. If the commissioner determines that the revised plan fails to meet all applicable requirements of subsection 3, the commissioner shall provide to the producer or organization a written notice of determination describing the reasons for rejecting the revised plan. No later than 45 days after receiving a written notice of determination from the commissioner rejecting a revised plan, the producer or organization may amend and resubmit the revised plan to the commissioner for reconsideration. The commissioner shall review an amended revised plan, make a determination of whether to approve the amended revised plan and provide a written notice of determination notifying the producer or organization of the commissioner's decision within 45 days of receipt of the amended revised plan. The commissioner may not reject an amended revised plan submitted for reconsideration without providing the producer or organization with notice and opportunity for a hearing. A producer or organization whose amended revised plan is rejected by the commissioner may appeal the commissioner's decision in accordance with section 346.
B.  A producer or organization that submitted a plan approved under subsection 4 may terminate the program implementing that plan no earlier than 90 days after providing notice to the commissioner and to program participants of the program's termination. Prior to the termination of a program, each producer included in the program shall, individually or through a covered battery stewardship organization that has agreed to act on the producer's behalf, submit a plan for the establishment of a covered battery stewardship program to the commissioner for approval consistent with subsection 3 or join an existing organization.
C.  A plan approved under subsection 4 remains in effect until a revised plan is adopted in accordance with paragraph A or the program implementing that plan is terminated in accordance with paragraph B by the producer or organization that submitted the plan.
7.  Sales prohibition.   This subsection governs the sale of covered batteries and covered battery-containing products in the State.
A.  Beginning July 1, 2017, a manufacturer, distributor, wholesaler or retailer may not sell, offer for sale, distribute for sale or offer for promotional purposes in the State a covered battery or covered battery-containing product unless the producer of the battery or product has joined an existing covered battery stewardship organization or submitted a plan for the establishment of a covered battery stewardship program that has been approved by the commissioner.
B.  Notwithstanding paragraph A, a manufacturer, distributor, wholesaler or retailer may continue to sell, distribute for sale, offer for sale or offer for promotional purposes in the State a covered battery or covered battery-containing product manufactured prior to July 1, 2017, but shall:

(1) By October 1, 2017, sell or otherwise divest or dispose of its remaining stock of covered batteries manufactured prior to July 1, 2017 by a producer that has not joined an existing covered battery stewardship organization or submitted a plan for the establishment of a covered battery stewardship program that has been approved by the commissioner; and

(2) By October 1, 2018, sell or otherwise divest or dispose of its remaining stock of covered battery-containing products manufactured prior to July 1, 2017 by a producer that has not joined an existing covered battery stewardship organization or submitted a plan for the establishment of a covered battery stewardship program that has been approved by the commissioner.

C.  Notwithstanding paragraphs A and B, a manufacturer, distributor, wholesaler or retailer of medical devices, as described in the Federal Food, Drug and Cosmetic Act, 21 United States Code, Section 360c (2012), may continue to sell its existing inventory of medical devices containing batteries not included in a plan approved under subsection 4 until July 1, 2027, except that new medical devices entering a manufacturer's, distributor's, wholesaler's or retailer's inventory on or after July 1, 2017 must be included in an approved plan no later than July 1, 2022.
D.  Notwithstanding paragraphs A and B, a hospital or other health care provider may continue to sell or otherwise exhaust its existing inventory of medical devices containing batteries not included in a plan approved under subsection 4 until July 1, 2027, except that new medical devices entering the hospital's or health care provider's inventory on or after July 1, 2017 must be included in an approved plan no later than July 1, 2022.
8.  Producer exclusions.   Notwithstanding subsection 1, paragraph M, a person that manufactures, sells, offers for sale or imports for sale in the State a primary battery-containing product is not considered a producer under this section if, no later than 45 days after receiving a request from the commissioner or an operator, the person verifies to the commissioner or the operator that the product contains only primary batteries supplied by a producer participating in a covered battery stewardship program in the State. An operator of a covered battery stewardship program that includes the primary battery contained in the person's primary battery-containing product shall list the person as a participant in and the product as covered under the operator's program.
9.  New producers.   A producer who seeks to sell, offer for sale or distribute for promotional purposes in the State a covered battery or covered battery-containing product not sold or offered for sale in the State prior to July 1, 2017 must notify the commissioner prior to the sale, offer for sale or distribution of the covered battery or covered battery-containing product in the State.
A.  Upon receiving notification under this subsection from a new producer, the commissioner shall list the producer as a new producer on the department's publicly accessible website.
B.  No later than 90 days following a new producer's notification to the commissioner, the producer shall submit a plan to the commissioner in accordance with subsection 3 or join an existing organization operating under a plan approved under subsection 4.
C.  If a new producer fails to submit a plan or join an existing organization within the 90-day period under paragraph B, the producer may not sell a covered battery or covered battery-containing product in the State after the expiration of the 90-day period and a retailer may not sell that producer's battery or product in the State after 120 days following the expiration of the 90-day period.
D.  Notwithstanding paragraph C, if a new producer submits a plan within the 90-day period under paragraph B and that plan is ultimately rejected by the commissioner under subsection 4 after the expiration of the 90-day period, the producer may not sell the covered battery or covered battery-containing product in the State after 45 days following the commissioner's final determination rejecting the submitted plan and a retailer may not sell the producer's battery or product in the State after 120 days following the commissioner's final determination rejecting the submitted plan.

A new producer that fails to submit a plan that is approved by the commissioner under subsection 4 or to join an existing organization within the time limits described in this subsection may not sell, offer for sale or distribute for promotional purposes a covered battery or covered battery-containing product not sold or offered for sale in the State prior to July 1, 2017 until the producer submits a plan for approval consistent with subsection 3 that is subsequently approved by the commissioner or joins an existing organization.

10.  Return of noncompliant products.   If a plan approved under subsection 4 is subsequently determined by the commissioner not to be in compliance with this section, a producer who sells, offers for sale or distributes for sale in the State a covered battery or covered battery-containing product included in that plan shall, upon request by a retailer, designate a location to which the retailer may ship the battery or product for further handling and shall reimburse the retailer for costs incurred in shipping the battery or product to the designated location.
11.  Safe collection.   A retailer, wholesaler, bulk collector, organization or curbside program operator that collects covered batteries or covered battery-containing products in the State, has a physical presence in the State and is operating under or in cooperation with a covered battery stewardship program shall ensure that all discarded covered batteries and covered battery-containing products placed in its collection containers are protected from short-circuiting in accordance with applicable regulations of the federal Department of Transportation, 49 Code of Federal Regulations, Subtitle B (2015) and other applicable laws or regulations and take reasonable steps to prevent the placement of materials other than properly protected discarded covered batteries and covered battery-containing products into its collection containers.
12.  Costs of participation.   A retailer or wholesaler may not require a producer or covered battery stewardship organization to reimburse the retailer or wholesaler for costs associated with its participation in a covered battery stewardship program.
13.  Reporting.   On or before May 1st of each year, beginning 2 years after the date a covered battery stewardship plan is approved by the commissioner, the producer or organization administering the program implementing the approved plan shall submit to the commissioner a report describing activities carried out by the program pursuant to the plan during the previous calendar year. The report must include, at a minimum, the following information:
A.  The weight of covered batteries collected by the program in the previous calendar year;
B.  The location of and contact information for each collection point established under the program;
C.  A description of the manner in which collected covered batteries and covered battery-containing products were sorted, consolidated and processed by the program;
D.  A description of the educational materials developed and used by the program, including examples of such materials; and
E.  If the report is filed by a covered battery stewardship organization, a summary financial statement documenting the financing of the program consistent with the requirements of subsection 3, paragraph G. If an organization operates a similar program in another state, the organization may meet the requirements of this paragraph by submitting a summary financial statement that consolidates information for all states in which it operates covered battery stewardship programs without providing financial information specific to its program in this State.
14.  Administration and enforcement.   The department shall enforce this section and may adopt rules consistent with this section as necessary for the purpose of implementing, administering and enforcing this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
A.  The commissioner may not initiate an enforcement action under this section against a manufacturer, distributor, wholesaler or retailer:

(1) Concerning the sale of covered batteries or covered battery-containing products that are not approved products if the sale occurred prior to October 1, 2017;

(2) Concerning the sale of covered batteries manufactured prior to the effective date of this section if the sale occurred prior to October 1, 2017; or

(3) Concerning the sale of covered battery-containing products manufactured prior to the effective date of this section if the sale occurred prior to October 1, 2018.

B.  The commissioner may not initiate an enforcement action under this section against a manufacturer, distributor, wholesaler or retailer:

(1) For selling or offering for sale a covered battery or covered battery-containing product if that entity, within 90 days of discovering that the battery or product is not in compliance with this section, removes the battery or product from sale; or

(2) For purchasing a covered battery or covered battery-containing product after the effective date of this section that is verified to be an approved product at the time of purchase but that is no longer an approved product at the time it is sold by that entity.

15.  Limited private right of action by authorized organization.   An authorized organization may maintain a civil action in Superior Court against a noncompliant producer to recover damages and additional sums and costs as set forth in this subsection.
A.  As used in this subsection, unless the context otherwise indicates, the following terms have the following meanings.

(1) "Allocated share" means:

(a) In the case of a noncompliant producer, a plaintiff's choice of either the percentage of batteries by weight identified in data of sufficient reliability that are employed by a compliant producer to estimate market shares in the normal course of business or the percentage of discarded batteries by weight for which a defendant is identifiable as the producer, as identified through a plaintiff's one-time sort of no less than 500 pounds of discarded covered batteries randomly collected in the State by the plaintiff; or

(b) In the case of an alternatively complying producer, the percentage of discarded batteries by weight identified as the responsibility of the producer in data generated from a set of qualifying discarded battery sorts.

(2) "Alternatively complying producer" means a producer participating in a program not operated by an authorized organization during the time an authorized organization incurred damages recoverable under this subsection.

(3) "Authorized organization" means a covered battery stewardship organization established under the law of any state or territory of the United States that authorizes establishment of nonprofit entities or recognized by the United States Internal Revenue Service as exempt from taxation under Section 501 of the United States Internal Revenue Code, as amended, that, pursuant to a plan approved under subsection 4, spent more than $250,000 collecting and recycling covered batteries discarded in the State in the previous calendar year.

(4) "Data generated from a set of qualifying discarded battery sorts" means the total data collected by a plaintiff from sorting 500 pounds of covered batteries collected at each of 3 or more collection sites in the State reasonably believed by the plaintiff to be representative of the population of the State. These sorts may be undertaken at any time after a plan is approved by the commissioner under subsection 4, but must all be collected within a 5-year period. Data generated from these sorts must include the brands of collected batteries, the weight of each brand collected and the percentage shares of the total collected weight attributable to each identifiable brand and to all batteries not identifiable by brand.

(5) "Estimated total weight of batteries sold in the State" means an estimate of the total weight of batteries sold in the State as individual units or as components or packaged with covered battery-containing products, using methods of sufficient reliability that are employed by a producer to estimate market shares in the normal course of business.

(6) "Noncompliant producer" means a producer not participating in any plan approved by the commissioner in accordance with subsection 4 during the time an authorized organization incurred damages recoverable under this subsection.

(7) "Program sort goal" means the sum of discarded covered batteries by weight identified as the responsibility of all producers participating in an authorized organization in data generated from a set of qualifying discarded battery sorts, multiplied by 10% during the first 3 years this section is in effect, by 15% in the next 3 years and by 20% in the 6th and subsequent years this section is in effect.

(8) "Unaccounted-for amount" means the costs incurred by a plaintiff multiplied by the percentage of batteries by weight collected through the plaintiff's one-time sort of no less than 500 pounds of randomly collected discarded covered batteries for which a producer cannot be identified.

B.  Except as provided in paragraph C, damages recoverable under this subsection are an amount equal to the total sum of a defendant's allocated share multiplied by a plaintiff's total costs of collecting and recycling discarded covered batteries in the State during the time period of noncompliance alleged plus a defendant's allocated share of the unaccounted-for amount for the same time period. Except as provided in paragraph C, if a plaintiff prevails in an action brought pursuant to this subsection, the plaintiff is entitled to an award of reasonable attorney's fees and court costs, including expert witness fees, as well as a punitive sum of 3 times the damages award.
C.  An authorized organization that collected in the previous calendar year a weight of discarded covered batteries in excess of its program sort goal may maintain a civil action in Superior Court against an alternatively complying producer to recover damages and additional sums and costs as set in this paragraph. Damages recoverable under this paragraph are an amount equal to the total sum of a defendant's allocated share of the excess multiplied by a plaintiff's total costs of collecting and recycling covered batteries discarded in the State during the time period alleged. A court may, in the interests of justice, award to a plaintiff who prevails in an action brought pursuant to this paragraph reasonable attorney's fees and court costs, including expert witness fees.
D.  An action may not be commenced under this subsection until 60 days after a plaintiff provides to all potential defendants a written notice of the claim setting forth the amount of the claim and the basis for the calculation of that amount.
E.  An authorized organization may initiate a single civil action in Superior Court against one or more producers.
16.  Preemption.   The State intends to occupy and preempt the entire field of legislation concerning the regulation of the stewardship of covered batteries and covered battery-containing products. Any existing or future order, ordinance, rule or regulation in this field of any political subdivision of the State is void.
17.  Antitrust exclusions.   A producer, a group of producers and a covered battery stewardship organization, and an agent, officer, director and employee of such entities, preparing, submitting a plan for, implementing or administering a covered battery stewardship program in accordance with this section, and a wholesaler and retailer that engages in conduct authorized by this section, are granted immunity, individually and jointly, from all applicable antitrust laws of the State for the limited purpose of establishing, implementing and administering a covered battery stewardship program and otherwise complying with the requirements of this section, and any activity undertaken by these entities in accordance with and authorized under this section is not an unlawful restraint of trade, a conspiracy or other violation of any provision of any applicable antitrust law of the State.

An action taken by a producer, a group of producers or an organization to increase the recycling of covered batteries in accordance with this section that affects the types or quantities of batteries recycled or the cost and structure of any covered battery stewardship program is not a violation of any provision of Title 10, chapter 201, except when such action constitutes an agreement establishing or affecting the price of covered batteries or the output or production of covered batteries or restricting the geographic area in which covered batteries will be sold or the customers to whom covered batteries will be sold.

18.  Repeal.   This section is repealed 9 years after the date on which a covered battery stewardship plan is first approved by the commissioner under subsection 4, except that an authorized organization, as defined in subsection 15, paragraph A, subparagraph (3), may, in accordance with subsection 15, recover after the repeal of this section costs incurred prior to the repeal of this section in collecting and recycling covered batteries discarded in the State. The commissioner shall notify the Revisor of Statutes when a covered battery stewardship plan is first approved by the commissioner under subsection 4.

Sec. 2. 38 MRSA §2132, sub-§1,  as amended by PL 2011, c. 655, Pt. GG, §32 and affected by §70, is further amended to read:

1. State recycling goal.   It is the goal of the State to recycle or compost, by January 1, 2014 2021, 50% of the municipal solid waste tonnage generated each year within the State.

Sec. 3. 38 MRSA §2145  is enacted to read:

§ 2145.  Commercial food waste composting requirement

1.  Definitions.   As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A.  "Composting facility" means a solid waste processing facility, as defined in section 1303-C, subsection 32-A, where organic materials are processed using a method of accelerated biological decomposition of organic material under controlled aerobic or anaerobic conditions.
B.  "Food waste" means food material produced from human or animal food production, preparation and consumption activities that consists of, but is not limited to, fruits, vegetables and other vegetative material, grains and fish and animal products and by-products. "Food waste" does not include biomedical waste, hazardous waste or septage, as defined in section 1303-C, subsections 1-A, 15 and 27, respectively.
C.  "Large quantity commercial food waste generator" means a commercial entity that generates one ton or more of food waste per week, including, but not limited to, a food wholesaler or distributor, a food manufacturer or processor, a restaurant, a hospital, a university or other educational institution, a grocery store, a resort or a conference center.
2.  Composting requirement.   Except as provided in this section, beginning January 1, 2020, a large quantity commercial food waste generator that is located within 20 miles of a composting facility with available capacity to accept the food waste produced by the generator shall deliver all food waste produced by the generator to a composting facility for processing.
A.  For the purposes of this section, a composting facility located outside of the State must be considered in determining whether a large quantity commercial food waste generator is located within 20 miles of a composting facility with available capacity.
B.  A large quantity commercial food waste generator subject to this section may elect to deliver the food waste produced by the generator to a composting facility with available capacity located more than 20 miles from the generator.
C.  A large quantity commercial food waste generator is deemed in compliance with this section if it performs composting of its generated food waste on site or otherwise treats its generated food waste using an on-site organic treatment method approved by the department.
3.  Waiver.   The department may provide a waiver from the requirements of this section for a large quantity commercial food waste generator that demonstrates to the department's satisfaction that compliance with the requirements of this section would result in substantial financial hardship for the generator.
A.  The department may award a grant or low-interest loan under section 2201-B to a large quantity commercial food waste generator to assist the generator in meeting the requirements of this section through implementation of a food waste composting program. The department may not approve a waiver under this subsection unless the generator seeking the waiver has applied for a grant or low-interest loan under section 2201-B.
B.  The department shall adopt rules consistent with subsection 4 setting forth the criteria for approval of a waiver under this subsection.
4.  Rules.   The department shall adopt rules to implement the provisions of this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Sec. 4. 38 MRSA §2201, 3rd ¶,  as amended by PL 2011, c. 655, Pt. GG, §64 and affected by §70, is further amended to read:

Funds related to administration may be expended only in accordance with allocations approved by the Legislature for administrative expenses directly related to the bureau's and the department's programs, including actions by the department necessary to abate threats to public health, safety and welfare posed by the disposal of solid waste. Funds related to fees imposed on the disposal of construction and demolition debris and residue from the processing of construction and demolition debris may be expended only for the state cost share to municipalities under the closure and remediation cost-sharing program for solid waste landfills established in section 1310-F. Funds related to fees imposed under section 2204 may be expended only in accordance with the Maine Composting and Recycling Grant and Low-interest Loan Program established in section 2201-B. Funds related to operations may be expended only in accordance with allocations approved by the Legislature and solely for the development and operation of publicly owned facilities owned or approved by the bureau and for the repayment of any obligations of the bureau incurred under article 3. These allocations must be based on estimates of the actual costs necessary for the bureau and the department to administer their programs, to provide financial assistance to regional associations and to provide other financial assistance necessary to accomplish the purposes of this chapter. Beginning in the fiscal year ending on June 30, 1991 and thereafter, the fund must annually transfer to the General Fund an amount necessary to reimburse the costs of the Bureau of Revenue Services incurred in the administration of Title 36, chapter 719. Allowable expenditures include "Personal Services," "All Other" and "Capital Expenditures" associated with all bureau activities other than those included in the operations account.

Sec. 5. 38 MRSA §2201-B  is enacted to read:

§ 2201-B.  Maine Composting and Recycling Grant and Low-interest Loan Program

1.  Establishment.   The Maine Composting and Recycling Grant and Low-interest Loan Program, referred to in this section as "the program," is established to provide grants and low-interest loans to public and private entities to assist in the development, implementation or improvement of programs, projects, initiatives and activities designed to increase composting and recycling rates within the State.
2.  Administration.   The department shall administer the program and dispense revenue from the Maine Solid Waste Management Fund established under section 2201 for the purposes of the program based on approved grant and loan requests from public and private applicants. The department may provide grants and loans for the documented costs of application proposals in accordance with the priorities in subsection 5. Costs incurred by the department in the development and administration of the program may be paid from the revenue dedicated to the program under section 2201, except that the department may expend for administrative purposes under this subsection no more than 25% of annual revenue dispensed to the program under section 2201 in any calendar year.
3.  Audit.   Revenue from the Maine Solid Waste Management Fund established under section 2201 disbursed by the program is subject to audit, and the recipient of any such funding must agree to be subject to audit and to cooperate with the auditor as a condition of receiving funding.
4.  Eligibility criteria.   The department may disburse grants and loans under the program to any public or private entity demonstrating that a proposed program, project, initiative or activity is, in the department's determination, likely to increase composting or recycling rates within a particular community, municipality or region or the State, including, but not limited to, municipal or regional composting or recycling programs, including the establishment of such programs or the purchase of infrastructure, equipment or other items necessary to implement such programs or improve existing programs; programs designed to provide equipment for or otherwise support residential composting; programs or business models designed to collect, transport for processing or process compostable or recyclable materials, including the implementation of composting programs designed to meet the requirements of section 2145; pilot programs designed to evaluate the feasibility of targeted composting, recycling or other waste management programs or initiatives; and initiatives or programs designed to educate certain categories of individuals or the general public about composting or recycling or to otherwise improve individual or community waste management practices.
5.  Priorities.   The department shall give highest priority in the awarding of funds under this section to programs, projects, initiatives or activities proposed by municipal applicants that otherwise meet the department's eligibility criteria. The department shall also give priority to applicants proposing programs, projects, initiatives or activities that are likely to increase the removal and recycling of organic materials from municipal waste streams. The awarding of funds under this section must be consistent with the solid waste management hierarchy established under section 2101.
6.  Funding requests.   The department shall solicit applications by grant-eligible and loan-eligible stakeholders, including, but not limited to, municipalities, licensed redemption centers and nonprofit and for-profit composters and recyclers. The department shall prioritize approval of funding requests under this section to support areas where funding will provide the most benefit to the State in terms of increasing composting and recycling rates within the State.
7.  Grants and loans for recycling of construction and demolition debris.   The department may award funds under this section to commercial programs, projects, initiatives or activities that propose to recycle construction and demolition debris generated in the State consistent with the department's eligibility criteria under this section. For the purposes of this subsection, the use of construction and demolition debris as fuel in industrial boilers or waste-to-energy facilities for the generation of heat, steam or electricity constitutes recycling.
8.  Repeal.   This section is repealed December 31, 2026.
9.  Rules.   The department may adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Sec. 6. 38 MRSA §2202, sub-§3,  as enacted by PL 1993, c. 310, Pt. C, §2, is amended to read:

3. Payment.   A person who delivers solid waste to a solid waste disposal facility , solid waste processing facility, incineration facility or solid waste landfill shall pay all fees established under this article to the operator of the solid waste disposal facility or landfill.

Sec. 7. 38 MRSA §2203-A, sub-§1,  as amended by PL 2011, c. 544, §3, is further amended to read:

1. Fees.   Fees are imposed in the following amounts to be levied for solid waste that is disposed of at commercial, municipal, state-owned and regional association landfills.

Asbestos $5 per cubic yard
Oil-contaminated soil, gravel, brick, concrete and other aggregate $25 per ton
Waste water facility sludge $5 per ton
Ash, coal and oil $5 per ton
Paper mill sludge $5 per ton
Industrial waste $5 per ton
Sandblast grit $5 per ton
All other special waste $5 per ton
Municipal solid waste ash $1 per ton
Front end process residue (FEPR) $1 per ton
Beginning January 1, 2013 and ending December 31, 2013, construction and demolition debris and residue from the processing of construction and demolition debris $1 per ton
Beginning January 1, 2014, construction and demolition debris and residue from the processing of construction and demolition debris $2 per ton

Sec. 8. 38 MRSA §2204, first ¶,  as amended by PL 1999, c. 385, §8, is further amended to read:

The department shall impose a fee of $2 $1 per ton on any municipal solid waste disposed of at a commercial, municipal or regional association landfill, except that there is no fee on municipal solid waste generated by a municipality that owns the landfill accepting it or that has entered into a contract with a term longer than 9 months for disposal of municipal solid waste in that landfill facility or received for processing, composting or other treatment at a commercial, municipal, regional association or state-owned solid waste disposal facility, solid waste processing facility, incineration facility or solid waste landfill.

Sec. 9. 38 MRSA §2205, first ¶,  as amended by PL 1995, c. 465, Pt. A, §77 and affected by Pt. C, §2, is further amended to read:

Each operator of a solid waste disposal facility , solid waste processing facility, incineration facility or solid waste landfill that has collected a fee under this article shall make the fee payment quarterly. The fee must be paid to the department on or before the 20th day of April, July, October and January for the 3 months ending the last day of March, June, September and December.

Sec. 10. 38 MRSA §2205, sub-§§1 and 8,  as amended by PL 1995, c. 465, Pt. A, §77 and affected by Pt. C, §2, are further amended to read:

1. Quarterly reports.   Each fee payment must be accompanied by a form prepared and furnished by the department and completed by the operator. The form must state the total weight or volume of solid waste disposed of or received at the facility or landfill during the payment period and provide any other aggregate information determined necessary by the department to carry out the purposes of this chapter. The form must be signed by the operator.
8. Assessment notice.   If the department determines that any operator has not made a timely payment of the fee, the department shall send the operator a written notice of the amount of the deficiency, within 30 days of determining the deficiency. When the operator has not provided a complete and accurate statement of the weight or volume of waste received at the facility or landfill for the payment period, the department may estimate the weight or volume in the notice.

The operator charged with the deficiency has 30 days to pay the deficiency in full or, if the operator wishes to contest the deficiency, forward the amount of the deficiency to the department for placement in an escrow account with the Treasurer of State or any bank in the State, or post an appeal bond in the amount of the deficiency. The bond must be executed by a surety licensed to do business in the State and be satisfactory to the department. Failure to forward the money or appeal bond to the department within 30 days results in a waiver of all legal rights to contest the deficiency.

If, through the administrative or judicial review of the deficiency, it is determined that the amount of deficiency must be reduced, the department shall within 30 days remit the appropriate amount to the operator, with any interest accumulated by the escrow deposit.

The amount determined after administrative hearing or after waiver of administrative hearing is payable to the department and is collectible.

If any amount due under this subsection remains unpaid 30 days after receipt of notice of the deficiency, the department may order the operator of the facility or landfill to cease receiving any solid waste until the amount of the deficiency is completely paid.

Sec. 11. Department of Environmental Protection; returnable beverage container rules. Pursuant to the authority granted in Public Law 2015, chapter 166, section 15, the Department of Environmental Protection shall, as soon as practicable, amend its existing rules or adopt new rules regarding the responsibilities of manufacturers, distributors, dealers, initiators of deposit, contracted agents and redemption centers under the returnable beverage container law, the Maine Revised Statutes, Title 38, chapter 33, to require a deposit and refund value on beverage containers containing Maine-produced apple cider and Maine-produced blueberry juice.

Sec. 12. Department of Environmental Protection; beneficial use rules. As soon as practicable, the Department of Environmental Protection shall amend fuel quality standards for construction and demolition debris wood fuel under its existing Rule Chapter 418: Beneficial Use of Solid Wastes to increase the allowance for chromated copper arsenate treated wood from less than 1.5% to less than 2.0% and to increase the allowance for #4 minus fines for sources other than publicly owned sources from 10% to 15%.

Sec. 13. Department of Environmental Protection; food waste composting pilot program. The Department of Environmental Protection shall develop, implement and administer a food waste composting pilot program as described in this section.

1. The department shall invite municipalities to participate in the pilot program and shall select as participants at least one municipality from each of the 3 following groups of counties:

A. Androscoggin, Cumberland, Lincoln, Sagadahoc and York;
B. Franklin, Kennebec, Knox, Oxford and Waldo; and
C. Aroostook, Hancock, Penobscot, Piscataquis, Somerset and Washington.

2. The department shall invite educational institutions to participate in the pilot program and shall select as participants at least one educational institution from each of the 3 following categories:

A. A public or private educational institution providing kindergarten to grade 12 education with an enrollment of 500 students or less, as measured during the 2014-2015 school year;
B. A public or private educational institution providing kindergarten to grade 12 education with an enrollment of more than 500 students, as measured during the 2014-2015 school year; and
C. A public or private educational institution providing undergraduate and graduate education.

3. The department shall invite and shall select as additional participants in the pilot program at least one entity from each of the 3 following categories:

A. A correctional facility;
B. A hospital; and
C. A commercial restaurant that generates, on average, 1/2 ton or more of food waste per week.

4. The department shall invite the Legislative Council to participate in the pilot program with respect to the State House facilities. The department shall invite the Department of Administrative and Financial Services, Bureau of General Services to participate in the pilot program with respect to the Burton M. Cross State Office Building facilities.

5. The department shall provide technical assistance, and may provide financial assistance consistent with the Maine Composting and Recycling Grant and Low-interest Loan Program established under the Maine Revised Statutes, Title 38, section 2201-B, to each participating entity to develop and implement a food waste composting program. A food waste composting program implemented under this section may involve the establishment of a traditional aerobic composting system or an anaerobic digestion system or implementation of another food waste processing technology approved by the department. A participating entity shall collect data on the amount of food waste diverted from the waste stream by the program, the related cost savings realized by the participating entity and any problems encountered in implementing the program. A participating entity shall compile this information into a report and transmit the report to the department on or before a date determined by the department.

6. The department shall analyze the reports submitted by the participating entities and, by January 15, 2018, shall submit a report to the joint standing committee of the Legislature having jurisdiction over environmental and natural resources matters detailing the data collected by each participating entity and any additional findings and including any recommendations for legislation to implement permanent food waste composting programs or requirements at the state, regional, municipal or local level or to otherwise increase recycling rates for organic materials in the State. After receiving the report, the joint standing committee may report out a bill relating to the report to the Second Regular Session of the 128th Legislature.

SUMMARY

This bill amends the State's solid waste management laws as follows.

1. It establishes a product stewardship program for small batteries.

2. It updates the State's recycling goal. Current statute sets a goal of recycling or composting 50% of the municipal solid waste tonnage generated each year within the State by January 1, 2014. This bill extends that goal deadline to January 1, 2021.

3. It implements a commercial food waste composting requirement under which a large quantity commercial food waste generator that is located within 20 miles of a composting facility with available capacity to accept the food waste produced by the generator is required to deliver all food waste produced to a composting facility for processing. A large quantity commercial food waste generator is a commercial entity that generates one ton or more of food waste per week. This bill authorizes the Department of Environmental Protection to provide a large quantity commercial food waste generator a waiver from the composting requirement if compliance would result in substantial financial hardship for the generator.

4. It eliminates the current statutory waste handling fee of $1 per ton on the disposal at a commercial, municipal, state-owned or regional association landfill of municipal solid waste ash and front end process residue.

5. It expands the assessment of a statutory municipal solid waste surcharge. Current statute requires the assessment of a $2 per ton surcharge on the disposal of municipal solid waste at a commercial, municipal or regional association landfill. This bill reduces that surcharge to $1 per ton but assesses the surcharge on municipal solid waste disposed of or received for processing, composting or other treatment at a commercial, municipal, regional association or state-owned solid waste disposal facility, solid waste processing facility, incineration facility or solid waste landfill.

6. It directs revenues collected through the assessment of the municipal solid waste surcharge to the Maine Composting and Recycling Grant and Low-interest Loan Program, which is established by this bill. This program provides grants and low-interest loans to public and private entities to assist in the development, implementation or improvement of programs, projects, initiatives and activities designed to increase composting and recycling rates within the State. Under the program, priority in the awarding of grants or loans is given to municipal applicants and to applicants seeking to establish programs, projects, initiatives or activities likely to increase composting rates.

7. It directs the Department of Environmental Protection to amend existing rules or adopt new rules regarding the returnable beverage container law to require a deposit and refund value on beverage containers containing Maine-produced apple cider and Maine-produced blueberry juice. Under the existing statutory and regulatory framework, both of these products are exempt from the returnable beverage container law.

8. It directs the Department of Environmental Protection to amend existing rules regarding the beneficial use of solid wastes to amend fuel quality standards for construction and demolition debris wood fuel to increase allowances for chromated copper arsenate treated wood and for #4 minus fines.

9. It directs the Department of Environmental Protection to develop, implement and administer a food waste composting pilot program. The department is required to collect data from participating entities and by January 15, 2018 submit a report to the joint standing committee of the Legislature having jurisdiction over environmental and natural resources matters detailing the data collected by each participating entity and any additional findings and including any recommendations for legislation to implement permanent food waste composting programs or requirements at the state, regional, municipal or local level or to otherwise increase recycling rates for organic materials in the State. After receiving the report, the committee may report out a bill relating to the report to the Second Regular Session of the 128th Legislature.

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