‘Sec. 1. 38 MRSA §1611 is enacted to read:
§ 1611. Stewardship program for batteries
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. "Approved product" means a covered battery 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 in accordance with the plan.
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 and identifies as the producer of the battery the owner or licensee of the brand.
C. "Covered battery" means a new or unused primary battery or rechargeable battery. "Covered battery" does not include:
(1) A product from which the primary battery or rechargeable battery is not easily removed or is not intended or designed to be removed from the product by a consumer;
(2) A medical device, as described in the Federal Food, Drug and Cosmetic Act, 21 United States Code, Section 321(h) (2009); or
(3) A device related to the physical or ancillary operation or use of a motor vehicle that is distributed through a new vehicle dealer franchised by the original manufacturer of the motor vehicle. As used in this subparagraph, "motor vehicle" has the same meaning as in Title 29-A, section 101, subsection 42 and "new vehicle dealer" has the same meaning as in Title 29-A, section 851, subsection 9.
D. "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.
E. "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.
F. "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.
G. "Discarded covered battery" means a covered battery that a user discarded, abandoned or sent for recycling.
H. "Operator" means a producer or covered battery stewardship organization that implements and administers a covered battery stewardship program.
I. "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.
J. "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.
K. "Producer" means, with respect to a covered battery that is sold, offered for sale or distributed for sale in the State, the following:
(1) The person subject to the jurisdiction of the State, or who has voluntarily agreed to recognize the jurisdiction of the State for the purposes of this section, that manufactures the covered battery and sells or offers for sale in the State that battery 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 is sold or distributed in the State that is subject to the jurisdiction of the State; or
(3) If there is no person to which subparagraph (1) or (2) applies, a person subject to the jurisdiction of the State that imports the covered battery into the United States for sale or distribution in the State.
L. "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. "Rechargeable battery" does not include:
(1) A battery that is not easily removed or is not intended or designed to be removed from a product by a consumer;
(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 or stationary office equipment.
M. "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.
N. "Retailer" means a person that sells or offers a covered battery 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.
O. "Wholesaler" means a person that offers for sale or sells in the State a covered battery in a sale that is not a retail sale, as defined in Title 36, section 1752, subsection 11, with the intention that the battery be resold in a subsequent retail sale.
2. Product labeling. By January 1st of the 2nd calendar year after the effective date of this section, a producer that sells, offers for sale or distributes for sale in the State a covered battery as a replacement battery 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 covered 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, 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 as applicable:
A. If the plan is submitted by a producer, identification and contact information for the producer and a list of the owners of the brands of covered batteries to be included in the program;
B. If the plan is submitted by an organization, identification and contact information for the organization and for each producer participating in the organization, a list of the owners of the brands of covered batteries to be included in the program and a description of the organization and the tasks to be performed by the organization, including information on how the organization is organized, including administration and management of the organization;
C. A description of how the program will provide convenient, free, statewide collection opportunities for discarded covered batteries and how the convenience and adequacy of the collection system will be monitored and maintained;
D. The criteria to be used by the program in determining whether an entity may serve as a collection location for discarded covered batteries under the program. The plan must allow any retailer, wholesaler, municipality, solid waste management facility and other entity that meets such criteria to voluntarily serve as a collection location;
E. The names and locations of recyclers, processors and disposal facilities and other entities that may be used by the program for the collection or recycling of discarded covered batteries, including a description of the manner by which the program will use covered battery collection locations that are established through other battery collection programs;
F. Information on how discarded covered batteries collected through the program will be safely and securely transported, tracked and handled from collection through final disposition;
G. A description of the method to be used to ensure that, to the extent economically and technically feasible, collected discarded covered batteries are recycled or otherwise responsibly managed;
H. A description of how the amounts of discarded covered batteries collected, recycled, processed, reused and disposed of will be measured;
I. A description of the education and outreach methods and activities that will be used to provide notice of and encourage participation in the program by consumers, businesses, local agencies, retailers, wholesalers and waste transportation services;
J. Any performance goals established by the producer or organization to measure the success of the program; and
K. A description of how the program will be financed. If the plan is submitted by an organization, the financing method through which the program will be funded must:
(1) Allocate to producers of primary batteries costs that are directly attributable to the recycling of primary batteries, such as reclamation costs;
(2) Allocate to producers of rechargeable batteries 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 and rechargeable batteries.
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 commissioner'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 sections 341-D and 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 that has been designated as proprietary information in accordance with subsection 13.
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 included under the approved plan or provide instructions on how to obtain such information as provided by the producer or organization that submitted the 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 are nonsubstantive and do not significantly alter the likelihood that the plan will result in the successful collection and recycling of discarded covered batteries. The producer or organization shall at the beginning of each calendar quarter notify the department of any amendments made to the approved plan in the previous calendar quarter that are nonsubstantive and do not significantly alter the likelihood that the plan will result in the successful collection and recycling of discarded covered batteries.
B. If proposed amendments to an approved plan are substantive and would significantly alter the likelihood that the plan will result in the successful collection and recycling of discarded covered batteries, including, but not limited to, amendments eliminating a substantial number of retail collection locations, adding or deleting batteries to be collected based on the chemistry employed in storing energy in those batteries, 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 discarded covered batteries, 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, in whole or in part, 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. A producer or organization whose amended revised plan is rejected by the commissioner may appeal the commissioner's decision in accordance with sections 341-D and 346.
C. 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 that is approved by the commissioner or join an existing organization.
D. A plan approved under subsection 4 remains in effect until a revised plan is adopted in accordance with paragraph B or the program implementing that plan is terminated in accordance with paragraph C by the producer or organization that submitted the plan.
7. Collection locations. This subsection applies to collection locations.
A. A retailer, a wholesaler, a municipality, a solid waste management facility and any other private or public entity may voluntarily serve as a collection location for discarded covered batteries under an approved and implemented program, so long as the operator of the program determines that the collection location meets the criteria for collection locations established under the program's approved plan.
B. The participants in a program must fully underwrite the costs of battery collection containers provided to each collection location established under the program, including the costs of all materials necessary to comply with the safe collection requirements of subsection 11, as well as the costs of pickup and transportation of discarded covered batteries from each collection location, and may not charge a collection location for such items or services.
C. An entity serving as a collection location may not be required to make available more than one battery collection container at a single location.
D. An entity serving as a collection location may not refuse collection of batteries based on the brand or brands of the batteries. The operator of a program may not refuse the pickup or transfer of collected batteries from a collection location based on the brand or brands of the batteries collected.
E. An entity serving as a collection location may not charge consumers any fee relating to the collection of discarded covered batteries. An entity serving as a collection location may not impose any fee on the operator of a program as a condition of voluntarily agreeing to serve as a collection location under the program.
8. Prohibition. This subsection governs the offering for sale of covered batteries in the State.
A. Beginning July 1st of the 2nd calendar year after the effective date of this section, a covered battery manufacturer may not offer for sale, distribute for sale or offer for promotional purposes in the State a covered battery unless the producer of the battery 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 covered battery manufacturer may continue to distribute for sale, offer for sale or offer for promotional purposes in the State a covered battery manufactured prior to July 1st of the 2nd calendar year after the effective date of this section, but shall, by October 1st of the 2nd calendar year after the effective date of this section, sell or otherwise divest or dispose of its remaining stock of covered batteries manufactured prior to July 1st of that year 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.
9. New producers. A producer that seeks to sell, offer for sale, distribute for sale or offer for promotional purposes in the State a covered battery bearing a brand under which the battery was not sold or offered for sale in the State prior to July 1st of the 2nd calendar year after the effective date of this section must notify the commissioner prior to the sale, offer for sale, distribution for sale or offer for promotional purposes of the covered battery 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 or distribute a covered battery in the State after the expiration of the 90-day period and a retailer may not sell that producer's battery 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 or distribute the covered battery 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 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, distribute for sale or offer for promotional purposes a covered battery not sold or offered for sale in the State prior to July 1st of the calendar year after the effective date of this section until the producer submits a plan for the establishment of a covered battery stewardship program 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, distributes for sale or offers for promotional purposes in the State a covered battery included in that plan shall, upon request by a retailer, designate a location to which the retailer may ship the battery for further handling and shall reimburse the retailer for costs incurred in shipping the battery to the designated location.
11. Safe collection. Any entity that collects discarded covered batteries 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 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 into its collection containers.
12. Reporting. By April 1st of the calendar year after the calendar year in which 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 discarded covered batteries collected by the program in the previous calendar year, including, if available, a breakdown of the weight of discarded covered batteries collected per county;
B. The location of each collection location established under the program and an evaluation of the convenience of the collection system implemented by the program;
C. A description of the manner in which discarded covered batteries were collected, transported, sorted, consolidated and processed by the program;
D. A description of the methods used by the program for education and outreach, including examples of any educational materials developed and used by the program, and an evaluation of the effectiveness of the education and outreach efforts implemented by the program;
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 K and an independent financial audit statement of the organization's financing and expenses. If the 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 the organization operates covered battery stewardship programs but must provide estimated financial information and cost information specific to the organization's program in this State, as an addendum or additional documentation, beyond national aggregate information; and
F. Any recommendations for changes to the program to improve the convenience of the collection system, consumer education or outreach efforts or program evaluation methods.
13. Proprietary information. Proprietary information submitted to the department in a covered battery stewardship plan, in an amendment to a plan or pursuant to the reporting requirements of this section that is identified by the submittor as proprietary information is confidential and must be handled by the department in the same manner as confidential information is handled under section 1310-B.
As used in this subsection, "proprietary information" means information that is a trade secret or production, commercial or financial information the disclosure of which would impair the competitive position of the submittor and would make available information not otherwise publicly available.
14. Administration and enforcement. The department shall administer and enforce this section and may adopt rules consistent with this section as necessary for the purposes 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 department shall charge a reasonable fee to be paid by an applicant for review and approval of a covered battery stewardship plan. Fees assessed under this paragraph must be based on the actual costs to the department of reviewing and approving a covered battery stewardship plan and may not exceed $25,000.
B. The department may establish a reasonable annual fee, to be paid by the operator of each covered battery stewardship program, to cover the department's costs for annual report review, oversight, administration and enforcement of the program. A fee established under this paragraph must be based on the actual costs to the department of annual report review, oversight, administration and enforcement of the operator's program and may not exceed $25,000 per year.
C. The commissioner may not initiate an enforcement action under this section against a manufacturer:
(1) Concerning the offering for sale of covered batteries that are not approved products if the offering for sale occurred prior to October 1st of the 2nd calendar year after the effective date of this section; or
(2) Concerning the offering for sale of covered batteries manufactured prior to the effective date of this section if the offering for sale occurred prior to October 1st of the 2nd calendar year after the effective date of this section.
D. The commissioner may not initiate an enforcement action under this section against a manufacturer for offering for sale a covered battery if that entity, within 90 days of discovering that the battery is not in compliance with this section, removes the battery from sale.
15. Limited private right of action. Except as provided in paragraph F, a producer or organization that has submitted a plan for the establishment of a covered battery stewardship program that has been approved by the commissioner and that has been implemented to collect, transport and recycle discarded covered batteries in the State may maintain a civil action in Superior Court against a producer or organization not participating in its program to recover a portion of its costs and additional sums, as set forth in this subsection.
A. Damages recoverable under this subsection include a fair share of the actual costs incurred by a plaintiff producer or organization in collecting covered batteries of a defendant producer or organization discarded in the State for which the defendant was required under this section to submit and implement a covered battery stewardship plan or join an existing covered battery stewardship program, as well as the plaintiff's costs incurred in handling, transporting and recycling or properly disposing of the defendant's batteries. Additional amounts recoverable under this subsection include an award of reasonable attorney's fees and court costs, including expert witness fees.
B. In an action by a plaintiff producer or organization against a defendant producer or organization that did not operate or participate in a covered battery stewardship program established under this section during the time period in which discarded covered batteries of the defendant were collected, transported and recycled by the plaintiff, the plaintiff may establish the defendant's fair share of the plaintiff's actual costs by:
(1) Providing the court with market share data that the court finds reasonably represent the percentage of sales of covered batteries by the defendant in the State;
(2) Providing the court with data generated from discarded covered battery sorts involving a minimum of 500 pounds of discarded covered batteries collected at each of 3 or more collection locations in the State that are found by the court to have been collected in an unbiased manner and to be reasonably representative of the population of the State; or
(3) Through any other method that the court finds reliable in establishing the defendant's fair share of the plaintiff's actual costs.
C. In an action by a plaintiff producer or organization against a defendant producer or organization that operated or participated in a covered battery stewardship program established under this section during the time period in which discarded covered batteries of the defendant were collected, transported and recycled by the plaintiff, the plaintiff may establish the defendant's fair share of the plaintiff's actual costs by providing the court with data establishing the relative weight of discarded covered batteries collected by the plaintiff that the defendant was required under this section to collect, transport and recycle compared to the weight of other discarded covered batteries collected by the plaintiff. This data may be generated by the plaintiff:
(1) Through the collection of data from discarded covered battery sorts involving a minimum of 500 pounds of discarded covered batteries collected at each of 3 or more collection locations in the State that are found by the court to have been collected in an unbiased manner and to be reasonably representative of the population of the State;
(2) Through an analysis of actual collections by the organization that are found by the court to be reasonably representative of total actual collections in the State; or
(3) Through any other method that the court finds reliable in establishing the defendant's fair share of the plaintiff's actual costs.
D. If the court finds that an action maintained by a plaintiff producer or organization against a defendant producer or organization initiated pursuant to this subsection is without merit and dismisses that action, the court shall award to the defendant producer or organization reasonable attorney's fees and court costs, including expert witness fees.
E. An action may not be commenced under this subsection against any potential defendant 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. A plaintiff producer or organization may initiate a single civil action in Superior Court against one or more defendant producers or organizations.
F. An action may not be brought under this subsection against a retailer or franchisor of retail outlets that was operating or participating in a covered battery stewardship program established under this section, individually or on behalf of its franchisees, to recover costs or additional sums incurred during a time period in which discarded covered batteries were collected, transported or recycled by the retailer or franchisor.
G. The department may not be a party to or be required to provide assistance or otherwise participate in a civil action authorized under this subsection unless subject to a subpoena before a court of jurisdiction.
16. Preemption. The State intends to occupy and preempt the entire field of legislation concerning the regulation of the stewardship of covered batteries. 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. Contingent effective date; contingent repeal. The commissioner shall monitor legislative activities in other states and certify to the Secretary of State and the Revisor of Statutes when legislation substantially consistent with this section has been adopted by at least 5 contiguous states, including Maine. This section takes effect 30 days after the date of the commissioner's certification. If no certification has been made by the commissioner pursuant to this section by January 1, 2024, this section is repealed on that date.
19. Report and program modifications. Two years after the effective date of this section, the commissioner shall submit a report to the joint standing committee of the Legislature having jurisdiction over environmental and natural resources matters regarding the status of the State's stewardship program for covered batteries, including a recommendation on whether consumer products that are sold containing a covered battery should be included in the program and any recommended changes to the program to ensure its continued viability. The report under this section may be included in the report required pursuant to section 1772, subsection 1. After reviewing the report, the committee may report out a bill relating to the stewardship program for covered batteries established under this section to the session of the Legislature in which the report is submitted.’