District Of Columbia 2023-2024 Regular Session

District Of Columbia Council Bill PR25-0580 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2	MURIELBOWSER
3	3	Mayor
4	4	December20,2023
5	5	‘TheHonorablePI
6	6	Chairman
7	7	CounciloftheDistrictofColumbia
8	8	1350PennsylvaniaAve.NW
9	9	Washington,DC20004
10	10
11	11	Mendelson
12	12	DearChairmanMendelson:
13	13	EnclosedforconsiderationandapprovalbytheCounciloftheDistrictofColumbiaistheproposedresolution
14	14	entitledthe“BatteryStewardshipInfractionsScheduleofFinesApprovalResolutionof2023.”
15	15	Theproposedresolutionwouldapproveaproposedfinalrulemakingthatwouldestablishascheduleoffinesin
16	16	Title16(Consumers,CommercialPractices,andInfractions),Chapter40(DDOEInfractions)oftheDistrictof
17	17	ColumbiaMunicipalRegulationsforviolationsofthelawandrulesrelatedtotheDistrict’sbatterystewardship
18	18	program.Therulemakingisneededtoenforcethebatterystewardshiprequirementsandwillhelpensurebatteries
19	19	arekeptoutofthetrashandsafelyrecycled,whichiscriticalforconservingvaluableresourcesanddiverting
20	20	potentiallyhazardousmaterialsfromdisposalfacilities.
21	21
22	22	1urgetheCounciltotakepromptandfavorableactiononthe“BatteryStewardshipInfractionsScheduleofFines
23	23	ApprovalResolutionof2023.”
24	24
25	25	Enclosures 1
26	26	2
27	27	3
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34	34	10
35	35	11
36	36	~ on
37	37	at the request
38	38	of the Mayor
39	39	A PROPOSED RESOLUTION
40	40	12 IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
41	41	13
42	42	14
43	43	15
44	44	16
45	45	17
46	46	To approve the proposed final rules to establish a schedule of civil infractions for violations of
47	47	18 battery stewardship requirements of the Sustainable Solid Waste Management
48	48	19 Amendment Act of 2014.
49	49	20
50	50	21 RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
51	51	22 resolution may be cited as the "Battery Stewardship Infractions Schedule of Fines Approval
52	52	23 Resolution of 2023".
53	53	24 Sec.
54	54	2. Pursuant to section 104(a)(l) of the Department of Consumer and Regulatory
55	55	25 Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official
56	56	26 Code§ 2-1801.04(a)(l)) and Subtitle D (Extended Producer Responsibility for Batteries)
57	57	of Title
58	58	27 I (Waste Management, Reduction, and Recovery) of the Sustainable Solid Waste Management
59	59	28 Amendment Act of 2014, effective March 16, 2021 (D.C. Law 23-211; D.C. Official Code§ 8-
60	60	29 771.01 et seq.), the Council approves the proposed final rulemaking adopted by the Department
61	61	30 of Energy and the Environment, which was published as a proposed rulemaking in the D. C.
62	62	31 Register on July 7, 2023 at 70 DCR 009459, to establish a schedule of civil infractions for
63	63	32 violations of Subtitle D (Extended Producer Responsibility for Batteries) of Title I (Waste
64	64	33 Management, Reduction, and Recovery) of the Sustainable Solid Waste Management Amendment Act of 2014, effective March 16, 2021 (D.C. Law 23-211; D.C. Official Code § 8-34
65	65	771.01 et seq.) and rules related to battery stewardship in Chapter 39 (Battery Stewardship) of 35
66	66	Title 20 (Environment) of the DCMR. 36
67	67	Sec. 3. Transmittal. 37
68	68	The Secretary to the Council shall transmit a copy of this resolution, upon its adoption, to 38
69	69	the Mayor, the Director of the Department of Energy and Environment, and the Administrator of 39
70	70	the Office of Documents and Administrative Issuances. 40
71	71	Sec. 4. Fiscal impact statement. 41
72	72	The Council adopts the fiscal impact statement in the committee report as the fiscal 42
73	73	impact statement required by section 4a of the General Legislative Procedures Act of 1975, 43
74	74	approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a). 44
75	75	Sec. 5. Effective date. 45
76	76	This resolution shall take effect immediately. 46 1
77	77
78	78	DEPARTMENT OF ENERGY AND ENVIRONMENT
79	79
80	80	NOTICE OF FINAL RULEMAKING
81	81	(as submitted to the Council for its review and approval pursuant to section 104(a)(1) of the
82	82	Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October
83	83	5, 1985 (D.C. Law 6-42; D.C. Official Code § 2-1801.04(a)(1))
84	84
85	85	Battery Stewardship Infractions
86	86
87	87	The Director of the Department of Energy and Environment (“DOEE”), pursuant to the authority
88	88	set forth in section 104 of the Department of Consumer and Regulatory Affairs Civil Infractions
89	89	Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code § 2-1801.04); Mayor’s
90	90	Order 2006-61 dated June 14, 2006; Subtitle D (Extended Producer Responsibility for Batteries)
91	91	of Title I (Waste Management, Reduction, and Recovery) of the Sustainable Solid Waste
92	92	Management Amendment Act of 2014, effective March 16, 2021 (D.C. Law 23-211; D.C. Official
93	93	Code § 8-771.01 et seq.); and Mayor’s Order 2022-028 dated February, 10, 2022, hereby gives
94	94	notice of the adoption of the following amendments to Chapter 40 (Department of the Environment
95	95	(DDOE) Infractions) of Title 16 (Consumers, Commercial Practices, and Civil Infractions) of the
96	96	District of Columbia Municipal Regulations (“DCMR”).
97	97
98	98	This rulemaking schedules fines for violation of provisions related to battery stewardship in the
99	99	Sustainable Solid Waste Management Amendment Act of 2014 and of rules related to battery
100	100	stewardship in Chapter 39 (Battery Stewardship) of Title 20 (Environment) of the DCMR. The
101	101	rulemaking reflects amendments incorporated into the Sustainable Solid Waste Management
102	102	Amendment Act of 2014 by the Battery and Electronic Stewardship Amendment Act of 2022,
103	103	effective March 10, 2023 (D.C. Law 24-320, 70 DCR 3551).
104	104
105	105	A Notice of Proposed Rulemaking was published in the District of Columbia Register on July 7,
106	106	2023, at 70 DCR 009459. A thirty (30) day comment period on the proposed rulemaking ended on
107	107	August 7, 2023.
108	108
109	109	DOEE received one (1) set of comments during the comment period. The comments received and
110	110	changes made are described below.
111	111
112	112	Implementation of a Battery Stewardship Plan or Amendment
113	113
114	114	• Comment: Delete § 4014.3(a) that would establish an infraction for failure to fully
115	115	implement an approved battery stewardship plan or amendment to the plan because there
116	116	is no definition for “fully implemented” and it is unclear how DOEE would determine if a
117	117	battery stewardship organization (BSO) meets this requirement.
118	118
119	119	Response: The infractions rulemaking establishes fines for violation of the existing battery
120	120	stewardship regulations. The regulations state at 20 DCMR § 3900.1(b) that a BSO shall
121	121	“fully implement the plan, and any amendments to the plan.” This requirement addresses
122	122	the situation in which either the whole plan, or some portion of the plan, developed by the
123	123	BSO and approved by DOEE, is not carried out. If DOEE seeks to impose a fine and there 2
124	124
125	125	is a disagreement about whether a plan or portion of a plan was fully implemented, a notice
126	126	of infraction could be appealed to the third-party Office of Administrative Hearings. No
127	127	change was made as a result of this comment.
128	128
129	129	• Comment: Delete § 4014.3(a) that would establish an infraction for failure to fully
130	130	implement an approved battery stewardship plan or amendment to the plan no later than
131	131	ninety (90) days after receiving DOEE approval because there are few to no actions that
132	132	are implemented in the first 90 days after plan approval and that outcomes after a full year
133	133	of implementation are the important aspects.
134	134
135	135	Response: The regulations at 20 DCMR § 3900.1(b) require the BSO to implement its
136	136	battery stewardship plan or a plan amendment no later than ninety (90) days after DOEE
137	137	approval. During the first 90 days, the BSO will need to undertake any and all actions that
138	138	must be completed so that the stewardship plan is up and running as specified in its plan
139	139	(the plan may provide for undertaking some actions in phases after the first ninety (90)
140	140	days). No change was made as a result of this comment.
141	141
142	142	Annual Registration
143	143
144	144	• Comment: Delete § 4014.3(b) that would establish an infraction for failure to register with
145	145	DOEE each year because the information required is redundant and should be submitted
146	146	only once, and this infraction is not at the same level of importance as other infractions.
147	147
148	148	Response: The primary responsibilities of the BSO under the battery stewardship law are
149	149	registration, battery stewardship plan development and implementation, and an annual
150	150	report. D.C. Official Code § 8-771.04(b) requires annual registration and spells out the
151	151	information the registration must include. Some of the information, such as the producer
152	152	list, requirements for participating in the BSO, and contact information, may change over
153	153	time. The BSO may copy and paste information that is unchanged between years. No
154	154	change was made as a result of this comment.
155	155
156	156	Battery Collection Site Safety
157	157
158	158	• Comment: Delete § 4014.3(i) that would establish an infraction for a BSO’s failure to
159	159	provide a battery management safety tutorial because it does not impact the overall
160	160	performance of the battery stewardship program and enforcing the requirement to provide
161	161	a safety tutorial does not by itself add value to the program.
162	162
163	163	Response: DOEE believes that safety is critical to program success. Batteries contain
164	164	harmful substances that can pose a risk of fire or explosion if managed unsafely. D.C.
165	165	Official Code § 8-771.03(d)(1) requires that any battery collection site designated under a
166	166	plan complete a safety tutorial provided by the BSO implementing the plan. The
167	167	regulations at 20 DCMR § 3900.3(a) require that the BSO provide a safety tutorial and the
168	168	BSO must require that collection site personnel responsible for the collection program
169	169	complete the safety tutorial (1) before the site begins to operate as a collection site under
170	170	the approved plan and (2) when there is a change in responsible collection site personnel. 3
171	171
172	172	DOEE revised the text to clarify that § 4014.3(i) applies to both the BSO’s responsibility
173	173	to provide a tutorial and to require that collection site personnel complete the tutorial.
174	174
175	175	End-of-Life Handling of Residual Materials
176	176
177	177	• Comment: Delete § 4014.3(j) that would establish an infraction for end-of-life handling
178	178	that is not in accordance with practices set forth in an approved battery stewardship plan
179	179	or amendment to the plan as it will have little impact on the overall battery stewardship
180	180	program.
181	181
182	182	Response: End-of-life handling is part of the battery stewardship plan. A failure to
183	183	implement the end-of-life portion of an approved plan can be addressed as an infraction
184	184	under 20 DCMR § 3900.1(b). This infraction is deleted and the citations of the subsequent
185	185	provisions revised accordingly.
186	186
187	187	Enforcement against Producers
188	188
189	189	• Comment: Increase the penalty in § 4014.3(k) for the failure of a producer to join a BSO
190	190	from a Class 3 to Class 2 infraction because non-participating producers who place
191	191	batteries on the market in the District burden the BSO while at the same time severely
192	192	limiting its incoming fees, which reduces its ability to run the battery stewardship program.
193	193
194	194	Response: The lists of participating producers in the annual registration and the annual
195	195	report each identify members, and those not on one or both lists can be held liable for
196	196	violation(s) of the BSO membership requirement. A Class 3 infraction imposes a fine of
197	197	$500 for the first offense, and there are escalated penalties for repeat offenders if a producer
198	198	has one or more additional violations within a three-year period. Further, D.C. Official
199	199	Code § 8-771.07 makes a cause of action available to the BSO if a producer has not joined
200	200	the BSO and other criteria are met. DOEE believes that these sanctions are sufficient. No
201	201	change was made as a result of this comment.
202	202
203	203	DOEE also made the following changes:
204	204	• § 4014.3(e): Removed this provision that would have established an infraction for violation
205	205	of Section 130(b-1) of the Sustainable Solid Waste Management Amendment Act of 2014,
206	206	effective March 16, 2021 (D.C. Law 23-211; D.C. Official Code § 8-771.03(b-1)) (failure
207	207	to submit a required amendment to a battery stewardship plan), as unnecessary, and
208	208	renumbered the remaining sections accordingly.
209	209
210	210	• New § 4014.3(i) (after re-numbering): Clarified that this infraction only applies to the
211	211	failure to join a battery stewardship organization in 20 DCMR § 3901.1(a).
212	212
213	213	In accordance with Section 104(a)(1) of the Department of Consumer and Regulatory Affairs Civil
214	214	Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code § 2-
215	215	1801.04(a)(1)), the Mayor transmitted the proposed final rules to the Council for its review and
216	216	approval on MONTH DATE, 2023, pursuant to the Battery Stewardship Infractions Schedule of 4
217	217
218	218	Fines Approval Resolution of 2023 (Prop. Res. XX-XXXX). The proposed final rulemaking was
219	219	passively approved by the Council.
220	220
221	221	The Acting Director of DOEE took final action to adopt this rulemaking on MONTH DATE, 2023,
222	222	and the rules will become effective upon publication of this notice in the district of Columbia
223	223	Register.
224	224
225	225	Chapter 40, DEPARTMENT OF ENVIRONMENT (DDOE) INFRACTIONS, of Title 16
226	226	DCMR, CONSUMERS, COMMERCIAL PRACTICES, AND CIVIL INFRACTIONS, is
227	227	amended as follows:
228	228
229	229	A new Section 4014, BATTERY STEWARDSHIP PROGRAM INFRACTIONS, is added to
230	230	read as follows:
231	231
232	232	4014 BATTERY STEWARDSHIP PROGRAM INFRACTIONS
233	233
234	234	4014.1 [Reserved]
235	235
236	236	4014.2 [Reserved]
237	237
238	238	4014.3 Violation of any of the following provisions shall be a Class 3 infraction:
239	239
240	240	(a) 20 DCMR § 3900.1(b) (failure to fully implement an approved battery
241	241	stewardship plan or amendment to the plan no later than ninety (90) days
242	242	after receiving DOEE approval);
243	243
244	244	(b) 20 DCMR § 3900.1(e) (failure to register with DOEE using an agency
245	245	prepared registration form on or before January 1 of each year);
246	246
247	247	(c) 20 DCMR § 3900.1(f) (failure to submit an annual report with the required
248	248	elements to DOEE on or before June 1 of each year);
249	249
250	250	(d) 20 DCMR § 3900.1(g) (failure to submit a proposed amendment to a battery
251	251	stewardship plan);
252	252
253	253	(e) 20 DCMR § 3900.1(h) (failure to submit amended performance goals as
254	254	required on the anniversary of the approval of the initial battery stewardship
255	255	plan);
256	256
257	257	(f) 20 DCMR § 3900.1(i) (failure to submit the results of an independent
258	258	assessment of the battery stewardship plan and recommendations to
259	259	improve the plan);
260	260
261	261	(g) 20 DCMR § 3900.2 (failure to submit an amended plan with required
262	262	corrections or revisions within forty-five (45) days of DOEE notice of
263	263	rejection or required revision); 5
264	264
265	265
266	266	(h) 20 DCMR § 3900.3(a) (failure to provide a safety tutorial as required for a
267	267	battery collection site designated under an approved plan and require that
268	268	collection site personnel responsible for the collection program complete
269	269	the safety tutorial);
270	270
271	271	(i) 20 DCMR § 3901.1(a) (failure of a producer to join a battery stewardship
272	272	organization); or
273	273
274	274	(j) 20 DCMR § 3907 (failure of a battery stewardship organization to pay the
275	275	administrative fee).
276	276
277	277	4014.4 Violation of the following provisions shall be a Class 4 infraction:
278	278
279	279	(a) Section 137(a) of the Sustainable Solid Waste Management Amendment
280	280	Act of 2014, effective March 16, 2021 (D.C. Law 23-211; D.C. Official
281	281	Code § 8-771.09(a)) (disposal of primary or rechargeable batteries in the
282	282	District through means other than battery recycling programs or other
283	283	methods approved by the Mayor by a producer). The disposal of each
284	284	increment of one (1) to ten (10) batteries shall be a separate violation; or
285	285
286	286	(b) Section 137(b) of the Sustainable Solid Waste Management Amendment
287	287	Act of 2014, effective March 16, 2021 (D.C. Law 23-211; D.C. Official
288	288	Code § 8–771.09(b)) (knowing disposal of primary or rechargeable batteries
289	289	in the District through means other than battery recycling programs or other
290	290	methods approved by the Mayor by any person). The disposal of each
291	291	increment of one (1) to ten (10) batteries shall be a separate violation.
292	292
293	293	4014.5 Violation of any provision of Subtitle D (Extended Producer Responsibility for
294	294	Batteries) of Title I (Waste Management, Reduction, and Recovery) of the
295	295	Sustainable Solid Waste Management Amendment Act of 2014, effective March
296	296	16, 2021 (D.C. Law 23-211; D.C. Official Code § 8-771.01 et seq.), or the
297	297	implementing rules in 20 DCMR Chapter 39, that is not cited elsewhere in this
298	298	section shall be a Class 5 infraction. 2
299	299
300	300	GOVERNMENT OF THE DISTRICT OF COLUMBIA
301	301	O
302	302	FFICE OF THE ATTORNEY GENERAL
303	303
304	304
305	305	BRIAN L. SCHWALB PRIVILEGED AND CONFIDENTIAL ATTORNEY GENERAL ATTORNEY-CLIENT COMMUNICATION
306	306
307	307
308	308
309	309	LEGAL COUNSEL DIVISION
310	310
311	311
312	312	MEMORANDUM
313	313
314	314
315	315	TO: Sarina Loy
316	316	Deputy Director
317	317	Office of Policy and Legislative Affairs
318	318
319	319
320	320	FROM: Megan D. Browder
321	321	Deputy Attorney General
322	322	Legal Counsel Division
323	323
324	324	DATE: December 20, 2023
325	325
326	326	SUBJECT: Legal Sufficiency Review – Draft “ Battery Stewardship Infractions Schedule of Fines
327	327	Approval Resolution of 2023”
328	328
329	329	(AE-22-272 E)
330	330	_____________________________________________________________________________________
331	331
332	332	This is to Certify that this Office has reviewed the above- referenced draft
333	333	legislation and found it to be legally sufficient. If you have any questions in this regard, please do
334	334	not hesitate to call me at (202) 724-5524.
335	335
336	336
337	337
338	338
339	339	_________________________________
340	340	Megan D. Browder
341	341
342	342
343	343