Texas 2017 - 85th Regular

Texas House Bill HB1874 Compare Versions

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

Old	New	Differences
1	1	85R2586 JRR-F
2	2	By: Anderson of Dallas H.B. No. 1874
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a program for the recycling of certain household
8	8	batteries; authorizing a fee; providing civil and administrative
9	9	penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 361, Health and Safety Code, is amended
12	12	by adding Subchapter P to read as follows:
13	13	SUBCHAPTER P. HOUSEHOLD BATTERY RECYCLING PROGRAM
14	14	Sec. 361.471. DEFINITIONS. In this subchapter:
15	15	(1) "Brand" means a name, symbol, word, or traceable
16	16	mark that identifies a covered battery and attributes the covered
17	17	battery to the owner or licensee of the brand as the producer.
18	18	(2) "Covered battery" means a battery or
19	19	battery-containing product described by Section 361.472(a).
20	20	(3) "Discarded covered battery" means a covered
21	21	battery that a user discarded or intends to discard, abandon, or
22	22	send for recycling.
23	23	(4) "Producer" means one of the following with regard
24	24	to a covered battery that is sold or offered for sale in this state:
25	25	(A) a person that manufactures a covered battery
26	26	and sells or offers for sale that covered battery in this state
27	27	under the person's own name or brand;
28	28	(B) a person other than a person described by
29	29	Paragraph (A) that owns or licenses a trademark or brand under which
30	30	a covered battery is sold or offered for sale whether or not the
31	31	trademark is registered; or
32	32	(C) a person other than a person described by
33	33	Paragraph (A) or (B), including a wholesaler or retailer, that
34	34	imports a covered battery into this state for sale.
35	35	(5) "Recycling" means any process in which discarded
36	36	covered batteries, components, and by-products are transformed
37	37	into new usable or marketable materials in a manner in which the
38	38	original products may lose their identity. The term does not
39	39	include the use of incineration for energy recovery.
40	40	(6) "Retailer" means a person that offers covered
41	41	batteries for sale at retail in this state through any means,
42	42	including remote offerings such as sales outlets, catalogs, or an
43	43	Internet website.
44	44	(7) "Stewardship organization" means an organization
45	45	appointed by two or more producers to act as an agent on behalf of
46	46	the producers to design, submit, implement, and administer a
47	47	stewardship program under this subchapter.
48	48	(8) "Stewardship program" means a program described by
49	49	Section 361.475.
50	50	(9) "Wholesaler" means a person that offers for sale
51	51	in this state, other than a retail sale, covered batteries intended
52	52	for retail sale.
53	53	Sec. 361.472. APPLICABILITY. (a) This subchapter applies
54	54	to:
55	55	(1) a non-rechargeable battery with a battery size of
56	56	4.5-volt, 9-volt, D, C, AA, AAA, AAAA, or A23;
57	57	(2) a product that contains or is packed with a battery
58	58	described by Subdivision (1);
59	59	(3) a battery that:
60	60	(A) is one or more voltaic or galvanic cells
61	61	electrically connected to produce electric energy and designed to
62	62	be recharged and that weighs less than five kilograms; or
63	63	(B) is a battery pack designed to be recharged,
64	64	that weighs less than five kilograms, and that is designed to
65	65	provide less than 40 volts direct current; and
66	66	(4) a product that contains or is packed with a battery
67	67	described by Subdivision (3).
68	68	(b) This subchapter does not apply to:
69	69	(1) a product described by Subsection (a)(2) or (4)
70	70	from which the battery is not easily removed or is not intended or
71	71	designed to be removed, other than by the manufacturer;
72	72	(2) a medical device that is a device as defined by 21
73	73	U.S.C. Section 321(h) or a drug as defined by 21 U.S.C. Section
74	74	321(g), if the device or drug or the battery included in the device
75	75	or drug:
76	76	(A) must be treated as infectious waste when the
77	77	device, drug, or battery is discarded; or
78	78	(B) is medically contaminated; or
79	79	(3) a battery described by Subsection (a)(3) that:
80	80	(A) is not easily removed or is not intended or
81	81	designed to be removed from a product described by Subsection
82	82	(a)(4), other than by the manufacturer;
83	83	(B) contains electrolyte as a free liquid; or
84	84	(C) employs lead-acid technology, unless the
85	85	battery:
86	86	(i) is sealed;
87	87	(ii) contains no liquid electrolyte; and
88	88	(iii) is intended by its manufacturer to
89	89	power a handheld device or to provide uninterrupted backup
90	90	electrical power protection for stationary consumer products or
91	91	stationary office equipment.
92	92	Sec. 361.473. EXEMPTION FOR CERTAIN BATTERY-CONTAINING
93	93	PRODUCTS. (a) In this section:
94	94	(1) "Primary battery" means a battery described by
95	95	Section 361.472(a)(1) or (3).
96	96	(2) "Primary battery-containing product" means a
97	97	battery-containing product described by Section 361.472(a)(2) or
98	98	(4).
99	99	(b) A person that manufactures, sells, offers for sale, or
100	100	imports a primary battery-containing product in this state is not
101	101	considered a producer of a covered battery for purposes of this
102	102	subchapter if, not later than the 45th day after the date of receipt
103	103	of a request from the commission or a producer or stewardship
104	104	organization that is implementing a stewardship program approved by
105	105	the commission under Section 361.475, the person verifies to the
106	106	requestor that the person only uses primary batteries supplied by a
107	107	producer that is:
108	108	(1) implementing a stewardship program approved by the
109	109	commission under Section 361.475; or
110	110	(2) a member of a stewardship organization
111	111	implementing a stewardship program approved by the commission under
112	112	Section 361.475.
113	113	(c) A producer or stewardship organization that is
114	114	implementing a stewardship program that covers the primary battery
115	115	contained in a primary battery-containing product of a person that
116	116	is not considered a producer under Subsection (b) may list the
117	117	person as a participant in the stewardship program implemented by
118	118	the producer or stewardship organization, as applicable.
119	119	Sec. 361.474. SALES PROHIBITED. (a) A producer of a
120	120	covered battery may not sell, offer for sale, or deliver to a
121	121	retailer for subsequent sale a covered battery unless the producer
122	122	or the stewardship organization in which the producer is
123	123	participating implements a stewardship program approved by the
124	124	commission under Section 361.475, provided that a producer of a
125	125	covered battery may sell, offer for sale, or deliver to a retailer
126	126	for subsequent sale a covered battery that:
127	127	(1) was manufactured before September 1, 2017; or
128	128	(2) is delivered, not later than September 1, 2027,
129	129	under a contract for the purchase of covered batteries that was
130	130	executed before September 1, 2017.
131	131	(b) A retailer or wholesaler may not sell or offer for sale a
132	132	covered battery unless the producer of the covered battery is
133	133	implementing a stewardship program approved by the commission under
134	134	Section 361.475 or is a member of a stewardship organization
135	135	implementing a stewardship program approved by the commission under
136	136	Section 361.475, provided that a retailer or wholesaler may sell or
137	137	offer for sale a covered battery that:
138	138	(1) was manufactured before September 1, 2017; or
139	139	(2) is delivered, not later than September 1, 2027, to
140	140	the retailer or wholesaler under a contract for the purchase of
141	141	covered batteries that was executed before September 1, 2017.
142	142	Sec. 361.475. STEWARDSHIP PROGRAM; COMMISSION APPROVAL OF
143	143	PROGRAM. (a) A producer of a covered battery that sells, offers
144	144	for sale, or delivers to a retailer for a subsequent sale a covered
145	145	battery in this state shall, individually or as part of a
146	146	stewardship organization, implement a stewardship program approved
147	147	by the commission that:
148	148	(1) in each council of government region of this
149	149	state, provides for the collection of covered batteries from
150	150	consumers at no cost to consumers; and
151	151	(2) prohibits a producer from refusing to collect a
152	152	covered battery based on the brand or producer of the covered
153	153	battery.
154	154	(b) A stewardship program submitted to the commission for
155	155	approval must include:
156	156	(1) the fee prescribed by the commission under
157	157	Subsection (e);
158	158	(2) a list of all producers participating in the
159	159	program and the brands of covered batteries subject to the program;
160	160	(3) a description of the method that will be used to
161	161	responsibly manage discarded covered batteries to ensure, to the
162	162	extent economically and technically feasible, that the components
163	163	of the discarded covered batteries are recycled or otherwise
164	164	managed responsibly;
165	165	(4) a description of the manner in which the program
166	166	will use existing covered battery collection points;
167	167	(5) an education and outreach program and a
168	168	description of:
169	169	(A) the outreach procedures that will be used to
170	170	provide notice of the program to businesses, retailers,
171	171	wholesalers, haulers, local governmental entities, and the public;
172	172	and
173	173	(B) planned public educational activities that,
174	174	at a minimum, notify the public:
175	175	(i) that there is a free collection program
176	176	for all covered batteries; and
177	177	(ii) of the location of collection points
178	178	and how to access the collection program;
179	179	(6) a collection rate performance goal for the brands
180	180	of covered batteries subject to the program; and
181	181	(7) if the program is submitted by a stewardship
182	182	organization or a producer that does not operate a physical retail
183	183	location in this state, a description of how the program will
184	184	provide convenient, free, statewide collection opportunities for
185	185	discarded covered batteries.
186	186	(c) Not later than the 30th day after the date of receipt of
187	187	a stewardship program by the commission, including a program that
188	188	is resubmitted under Subsection (d), the commission shall approve
189	189	or disapprove the program. The commission shall approve the program
190	190	if the program demonstrates to the commission's satisfaction that
191	191	the program will comply with the requirements of Subsection (b).
192	192	(d) If the commission disapproves a stewardship program,
193	193	the commission shall notify the producer or stewardship
194	194	organization in writing of the reasons for disapproval of the
195	195	program. A producer or organization whose program has been
196	196	disapproved by the commission must amend and resubmit the program
197	197	to the commission not later than the 45th day after the date of
198	198	receipt of the notice of disapproval.
199	199	(e) A producer or stewardship organization must pay an
200	200	application fee in an amount determined by the commission by rule.
201	201	(f) The commission shall deposit fees collected under this
202	202	section to the credit of the covered battery stewardship account.
203	203	Sec. 361.476. REPORT. (a) Not later than September 1 of
204	204	each year, a producer or a stewardship organization shall submit to
205	205	the commission a report that includes:
206	206	(1) a description of the activities carried out under
207	207	the program during the preceding 12 months;
208	208	(2) the weight of covered batteries collected by the
209	209	producer or the stewardship organization during the preceding 12
210	210	months;
211	211	(3) the locations for all collection points set up by
212	212	the covered battery producers covered by the program and contact
213	213	information for each location;
214	214	(4) the manner in which the collected covered
215	215	batteries were sorted, consolidated, and processed; and
216	216	(5) examples and a description of educational
217	217	materials used to increase collection.
218	218	(b) When a producer or stewardship organization submits the
219	219	report, the producer or organization shall pay an administrative
220	220	fee in an amount determined by the commission by rule.
221	221	(c) The commission shall deposit fees collected under this
222	222	section to the credit of the covered battery stewardship account.
223	223	Sec. 361.477. COVERED BATTERY STEWARDSHIP ACCOUNT.
224	224	(a) The covered battery stewardship account is an account in the
225	225	general revenue fund that consists of:
226	226	(1) fees collected under Sections 361.475 and 361.476;
227	227	(2) administrative penalties collected under
228	228	Subchapter C, Chapter 7, Water Code, for violations of this
229	229	subchapter;
230	230	(3) civil penalties collected under Subchapter D,
231	231	Chapter 7, Water Code, for violations of this subchapter; and
232	232	(4) interest earned on the money in the account,
233	233	notwithstanding Section 404.071, Government Code.
234	234	(b) Money in the account may be appropriated only to the
235	235	commission to implement and administer this subchapter.
236	236	Sec. 361.478. COMMISSION ORDER. The commission may order a
237	237	producer or stewardship organization to revise the program and to
238	238	take other actions necessary to comply with this subchapter.
239	239	Sec. 361.479. ENFORCEMENT; DEFENSE. (a) The commission
240	240	may audit or inspect a producer, stewardship organization,
241	241	retailer, or wholesaler to ensure compliance with this subchapter
242	242	and rules adopted under this subchapter.
243	243	(b) The commission and the attorney general, as
244	244	appropriate, shall enforce this subchapter and, except as provided
245	245	by Subsections (d) and (e), take enforcement action against a
246	246	producer, stewardship organization, retailer, or wholesaler.
247	247	(c) The executive director or the attorney general may
248	248	institute a suit under Section 7.032, Water Code, to enjoin an
249	249	activity related to the sale of a covered battery in violation of
250	250	this subchapter.
251	251	(d) The commission shall issue a warning notice to a person
252	252	on the person's first violation of this subchapter. The person
253	253	must comply with this subchapter not later than the 60th day after
254	254	the date the warning notice is issued.
255	255	(e) A retailer or wholesaler who receives a warning notice
256	256	from the commission that the retailer's or wholesaler's inventory
257	257	violates this subchapter because it includes covered batteries from
258	258	a producer that is not in compliance with this subchapter must bring
259	259	the inventory into compliance with this subchapter not later than
260	260	the 60th day after the date the warning notice is issued.
261	261	(f) In an enforcement action brought against a producer or
262	262	stewardship organization for a violation of this subchapter, it is
263	263	a defense to the action that the violation occurred as a result of a
264	264	county or municipal regulation that made it substantially
265	265	burdensome for the producer or stewardship organization to
266	266	implement the stewardship program.
267	267	(g) An administrative or civil penalty collected under
268	268	Subchapter C or D, Chapter 7, Water Code, for a violation of this
269	269	subchapter shall be deposited to the credit of the covered battery
270	270	stewardship account.
271	271	Sec. 361.480. CIVIL ACTION AGAINST PRODUCER WITH NO
272	272	STEWARDSHIP PROGRAM. (a) Except as provided by Subsection (e), a
273	273	plaintiff stewardship organization may bring a civil action against
274	274	a producer described by Subdivision (2) at any time to recover
275	275	damages described by Subsection (b) if:
276	276	(1) the plaintiff is a stewardship organization that:
277	277	(A) is a nonprofit organization or an
278	278	organization exempt from federal income tax under Section 501(a),
279	279	Internal Revenue Code of 1986; and
280	280	(B) during the implementation of a stewardship
281	281	program approved by the commission under Section 361.475, incurred
282	282	more than $250,000 in costs collecting and recycling discarded
283	283	covered batteries in this state during the preceding calendar year;
284	284	and
285	285	(2) the producer from which damages are sought was not
286	286	implementing a stewardship program approved by the commission under
287	287	Section 361.475 or a member of a stewardship organization
288	288	implementing a stewardship program approved by the commission under
289	289	Section 361.475 during the period the plaintiff incurred damages
290	290	recoverable under Subsection (b).
291	291	(b) A court shall award a plaintiff stewardship
292	292	organization that prevails in a civil action under this section
293	293	damages in an amount equal to the sum of:
294	294	(1) the plaintiff's total costs of collecting and
295	295	recycling discarded covered batteries in this state during the
296	296	period alleged, multiplied by the percentage of discarded covered
297	297	batteries, by weight, for which the defendant is identifiable as
298	298	the producer; and
299	299	(2) the amount described by Subdivision (1),
300	300	multiplied by the percentage of discarded covered batteries, by
301	301	weight, for which the producer cannot be identified.
302	302	(c) In addition to an award of damages under Subsection (b),
303	303	the court shall award a plaintiff stewardship organization that
304	304	prevails in a civil action under this section:
305	305	(1) the plaintiff's litigation costs, including court
306	306	costs and reasonable expenses such as attorney's fees and expert
307	307	witness fees; and
308	308	(2) exemplary damages in an amount equal to three
309	309	times the amount awarded under Subsection (b).
310	310	(d) For purposes of Subsection (b), the percentage of
311	311	discarded covered batteries for which the defendant is identifiable
312	312	as the producer and the percentage of discarded covered batteries
313	313	for which the producer cannot be identified must be determined by
314	314	using a sample of not less than 500 pounds of randomly selected
315	315	discarded covered batteries that were collected in this state by
316	316	the plaintiff.
317	317	(e) A stewardship organization described by Subsection
318	318	(a)(1) may not commence a civil action under this section unless the
319	319	stewardship organization gives written notice stating the amount of
320	320	the claim and the basis for its calculation to each defendant not
321	321	later than the 60th day before the date the action commences.
322	322	(f) A civil action under this section may be brought against
323	323	one or more defendants.
324	324	Sec. 361.481. CIVIL ACTION AGAINST PRODUCER PARTICIPATING
325	325	IN APPROVED STEWARDSHIP PROGRAM. (a) In this section:
326	326	(1) "Allocated share" means the percentage of
327	327	discarded covered batteries, by weight, identified as being the
328	328	responsibility of a producer, as determined by data generated from
329	329	a set of qualifying discarded battery sorts.
330	330	(2) "Data generated from a set of qualifying discarded
331	331	battery sorts" means the data described by Subsection (e).
332	332	(3) "Stewardship program sort goal" means the sum of
333	333	discarded covered batteries, by weight, identified as being the
334	334	responsibility of all producers participating in a stewardship
335	335	program implemented by a plaintiff stewardship organization, as
336	336	determined by data generated from a set of qualifying discarded
337	337	battery sorts, multiplied by:
338	338	(A) 10 percent, if the discarded covered
339	339	batteries are collected on or after September 1, 2018, but before
340	340	September 1, 2021;
341	341	(B) 15 percent, if the discarded covered
342	342	batteries are collected on or after September 1, 2021, but before
343	343	September 1, 2024; or
344	344	(C) 20 percent, if the discarded covered
345	345	batteries are collected on or after September 1, 2024.
346	346	(b) A plaintiff stewardship organization may bring a civil
347	347	action against a producer described by Subdivision (2) to recover
348	348	damages described by Subsection (c) if:
349	349	(1) the plaintiff:
350	350	(A) is a stewardship organization described by
351	351	Section 361.480(a)(1); and
352	352	(B) collected during the preceding calendar year
353	353	a weight of discarded covered batteries in excess of the
354	354	plaintiff's stewardship program sort goal; and
355	355	(2) the producer from which damages are sought was
356	356	participating in a stewardship program implemented by a stewardship
357	357	organization other than the plaintiff stewardship organization
358	358	during the period the plaintiff incurred damages recoverable under
359	359	Subsection (c).
360	360	(c) A court shall award a plaintiff stewardship
361	361	organization that prevails in a civil action under this section
362	362	damages in an amount equal to the plaintiff's total costs of
363	363	collecting and recycling discarded covered batteries in this state
364	364	during the period alleged, multiplied by the defendant's allocated
365	365	share of the weight of discarded covered batteries collected by the
366	366	plaintiff in excess of the plaintiff's stewardship program sort
367	367	goal.
368	368	(d) In addition to an award of damages under Subsection (c),
369	369	the court may award a plaintiff stewardship organization that
370	370	prevails in a civil action under this section the plaintiff's
371	371	litigation costs, including court costs and reasonable expenses
372	372	such as attorney's fees and expert witness fees, if the court finds
373	373	that the award of litigation costs will serve the interests of
374	374	justice.
375	375	(e) In a civil action brought under this section, a
376	376	plaintiff stewardship organization's stewardship program sort goal
377	377	and a defendant's allocated share must be determined using the
378	378	total data collected from sorting 500 pounds of discarded covered
379	379	batteries collected at each of not fewer than three locations in
380	380	this state reasonably believed to be representative of the
381	381	population of this state. Generated data must include:
382	382	(1) the brands of collected discarded covered
383	383	batteries;
384	384	(2) the weight of each brand collected; and
385	385	(3) the percentage shares of the total collected
386	386	weight attributable to each identifiable brand and to all discarded
387	387	covered batteries not identifiable by brand.
388	388	(f) The sorting of discarded covered batteries described by
389	389	Subsection (e):
390	390	(1) may be undertaken at any time after the plaintiff
391	391	stewardship organization's stewardship program is approved by the
392	392	commission under Section 361.475; and
393	393	(2) may not take place over a period that exceeds five
394	394	years.
395	395	(g) A stewardship organization described by Subsection
396	396	(b)(1) may not commence a civil action under this section unless the
397	397	stewardship organization gives written notice stating the amount of
398	398	the claim and the basis for its calculation to each defendant not
399	399	later than the 60th day before the date the action commences.
400	400	(h) A civil action under this section may be brought against
401	401	one or more defendants.
402	402	SECTION 2. (a) Not later than February 1, 2018, the Texas
403	403	Commission on Environmental Quality shall adopt any rules or forms
404	404	needed to implement Subchapter P, Chapter 361, Health and Safety
405	405	Code, as added by this Act.
406	406	(b) Not later than March 1, 2018, the Texas Commission on
407	407	Environmental Quality shall begin accepting plans seeking approval
408	408	for and approving stewardship programs established under
409	409	Subchapter P, Chapter 361, Health and Safety Code, as added by this
410	410	Act.
411	411	(c) A producer of covered batteries is not required to
412	412	implement a stewardship program under Subchapter P, Chapter 361,
413	413	Health and Safety Code, as added by this Act, before September 1,
414	414	2018.
415	415	(d) This Act may not be enforced before September 1, 2018.
416	416	(e) The first report required by Section 361.476, Health and
417	417	Safety Code, as added by this Act, is due September 1, 2020.
418	418	SECTION 3. This Act takes effect immediately if it receives
419	419	a vote of two-thirds of all the members elected to each house, as
420	420	provided by Section 39, Article III, Texas Constitution. If this
421	421	Act does not receive the vote necessary for immediate effect, this
422	422	Act takes effect September 1, 2017.