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An Act To Establish a Stewardship Program for Certain Rechargeable Batteries
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §1604, sub-§2, as repealed and replaced by PL 1989, c. 878, Pt. A, §116, is amended to read:
 
2. Lead-acid battery retailers.  AExcept as provided in subsection 2-A, a person selling or offering for retail sale lead-acid batteries shall:
 
A. Accept, at the point of transfer, used lead-acid batteries in reasonably clean and unbroken condition from customers in a quantity at least equal to the number of new batteries purchased;
 
B. If a used lead-acid battery is not exchanged at the time of sale, collect a $10 deposit on the new battery.
 
(1) The deposit shall be returned to the customer when the customer delivers a used lead-acid battery within 30 days of the date of sale.
 
(2) All funds received by a dealer as a deposit on a lead-acid battery shall be held in trust and separately accounted for by the retailer. Any interest on those funds shall inure to the benefit of the retailer. Annually on July 1st, all deposits not returned to customers in exchange for lead-acid batteries during the previous year ending June 30th shall inure to the benefit of the retailer; and
 
C. Post an 8 1/2" x 11" written notice that includes the display of the universal recycling symbol and the following language.
 
(1) "State law requires us to accept motor vehicle batteries or other lead-acid batteries for recycling in exchange for new batteries purchased."
 
(2) "A deposit of $10 will be charged for each new lead-acid battery that is not exchanged with an old lead-acid battery."
 
(3) "It is illegal to dump, bury or incinerate a motor vehicle lead-acid battery or other lead-acid battery."
 
(4) "Recycle your used batteries."
Sec. 2.  38 MRSA §1604, sub-§2-A  is enacted to read:
 
2-A.  Relationship to other programs.     A person is exempt from complying with subsection 2 with respect to any lead-acid battery sold or offered for sale by that person if the battery is included in a covered battery stewardship program established in accordance with section 1611 and the retailer serves as a collection location for covered batteries, as defined in section 1611, subsection 1, paragraph C, under that program.
Sec. 3.  38 MRSA §1611  is enacted to read:
§ 1611. Stewardship program for nickel-cadmium and small sealed lead-acid rechargeable batteries
 
1.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Brand" has the same meaning as in section 1771, subsection 1. "Brand" includes both a registered and an unregistered trademark.
 
B.  "Consumer" means a purchaser or owner of a covered battery.
 
C.  "Covered battery" means a nickel-cadmium or small sealed lead-acid rechargeable battery weighing less than 5 kilograms that is designed to be and is capable of being recharged after repeated use. "Covered battery" includes a product that contains or is packaged with a covered battery. "Covered 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, is not sealed, contains no liquid electrolyte and is intended by its manufacturer to power a handheld device or provide uninterrupted backup electrical power protection for a stationary consumer product or office equipment containing the battery or pack.
 
D.  "Covered battery stewardship organization" or "organization" means a nonprofit organization created by one or more producers to design, submit a plan for, implement and operate a covered battery stewardship program.
 
E.  "Covered battery stewardship plan" or "plan" means a plan designed by a producer or covered battery stewardship organization for the establishment of a covered battery stewardship program.
 
F.  "Covered battery stewardship program" or "program" means a system implemented for the management of discarded covered batteries in accordance with an approved covered battery stewardship plan.
 
G.  "Discarded covered battery" means a covered battery that a person discards, abandons or sends for recycling.
 
H.  "Operator" means a producer or covered battery stewardship organization that implements and operates a covered battery stewardship program.
 
I.  "Participate" means, with respect to a producer, to, individually or through a covered battery stewardship organization, establish and operate a covered battery stewardship program in accordance with this section.
 
J.  "Producer" means, with regard to a covered battery that is sold, offered for sale or distributed for sale in the State, the following:
 
(1) The person that manufactures the covered battery and sells, offers for sale or distributes 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 the brand under which the covered battery is sold or distributed in the State; or
 
(3) If there is no person to which subparagraph (1) or (2) applies, the person that imports the covered battery into the United States for sale or distribution in the State.
 
K.  "Recycling" has the same meaning as in section 1771, subsection 7.
 
L.  "Retailer" means a person that offers a covered battery for sale in the State in a retail sale, as defined in Title 36, section 1752, subsection 11, including remote sales conducted through sales outlets, catalogs or the Internet or any other similar electronic means.
 
M.  "Sell" or "sale" means any transfer of title for consideration, including remote sales conducted through sales outlets, catalogs or the Internet or any other similar electronic means.
 
N.  "Wholesaler" means a person that offers a covered battery for sale in the State in a sale that is not a retail sale, as defined in Title 36, section 1752, subsection 11, with the intention that the covered battery be resold in a subsequent retail sale.
 
2.  Submission of plan.     Except as provided in subsection 9, no later than one year after the effective date of this section, each producer, individually or through a covered battery stewardship organization, shall submit a plan for the establishment of a covered battery stewardship program to the commissioner for approval. The plan must include:
 
A.  Identification and contact information for all persons that will be responsible for the operation of the program and a list of the brands of covered batteries to be covered under the program. If the plan is submitted by an organization, it must include a description of the organization, tasks to be performed by the organization and information on how the organization is organized, including administration and management of the organization;
 
B.  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;
 
C.  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 private or public entity that meets those criteria to voluntarily serve as a collection location;
 
D.  The names and locations of recyclers, processors, disposal facilities and other entities that may be used by the program for the collection, processing, recycling or disposal of discarded covered batteries, including a description of the manner by which the program will use the covered battery collection locations established under other battery collection programs;
 
E.  Information on how discarded covered batteries collected through the program will be safely and securely transported, tracked and handled from collection through final disposition;
 
F.   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;
 
G.  A description of how the amounts of discarded covered batteries collected, recycled, processed and disposed of will be measured;
 
H.  A description of the education and outreach methods and activities that will be used to provide notice of and encourage use of or involvement in the program by consumers, businesses, local agencies, retailers, wholesalers and solid waste transportation services;
 
I.  The establishment of performance goals to measure the success of the program and a description of how the program will be designed to meet or exceed those goals; and
 
J.  An anticipated budget for operation of the program and a description of how the program will be financed. If the plan is submitted by an organization, the financing method must allocate costs to participating producers on the basis of the weights of types of covered batteries collected or some other nondiscriminatory basis acceptable to participating producers.
 
3.  Approval of plan.     The commissioner shall review a plan submitted under subsection 2 and approve or reject the plan within 90 days of receipt.
 
A.  The commissioner shall make a plan submitted under subsection 2 available for public review at least 30 days prior to approving or rejecting the plan.
 
B.  The commissioner shall approve a plan if the commissioner determines that the plan demonstrates the ability of the covered battery stewardship program to meet the goals specified in subsection 2, paragraph I and meets the other requirements for submission of a plan under subsection 2. The commissioner's approval of a plan must include approval of the method by which the program will be financed.
 
C.  If a plan is rejected, the commissioner shall provide the reasons for rejecting the plan to the producer or organization submitting the plan. The producer or organization submitting the plan may submit an amended plan within 60 days of a rejection.
 
D.  A producer or organization whose plan is rejected by the commissioner may appeal the commissioner's decision in accordance with sections 341-D and 346.
 
4.  Implementation of plan.     A producer or covered battery stewardship organization that submitted a plan approved by the commissioner under subsection 3 shall implement the plan no later than 120 days after the date the plan is approved.
 
5.  Amendment of plan.     A change to an approved and implemented covered battery stewardship plan must be submitted to the commissioner for review prior to implementation of that change. If the change is not substantive, such as the addition of or a change to collection locations, the addition of a new producer to the program or a change in the contact information or officers of the organization, approval is not needed, but the operator must inform the commissioner within 14 days of implementing the change. The commissioner shall review substantive plan amendments in accordance with subsection 3.
 
6.  Sales prohibition.     Upon implementation of a covered battery stewardship plan under subsection 4, a producer may not sell or offer for sale a covered battery in the State unless the producer, or a covered battery stewardship organization that the producer has created or joined, participates in a covered battery stewardship program established in accordance with this section.
 
7.  Relationship to other programs.     A manufacturer of a rechargeable battery subject to the requirements of section 2165 and to the requirements of this section may submit a request to the commissioner for a waiver from the requirements of this section with respect to that battery.
 
A.  The commissioner shall grant the waiver if the commissioner determines that the manufacturer has established and is maintaining a system for the proper collection, transportation and processing of that rechargeable battery in accordance with all applicable requirements of section 2165.
 
B.  If the commissioner grants a waiver to a manufacturer under this subsection, the manufacturer is relieved from complying with the requirements of this section with respect to that rechargeable battery.
 
A manufacturer of a rechargeable battery subject to the requirements of section 2165 and to the requirements of this section that complies with all applicable requirements of this section is exempt from complying with the requirements of section 2165 with respect to that battery.
 
8.  Collection locations.     This subsection applies to collection locations for discarded covered batteries under a program.
 
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 plan, as long as the operator determines that the collection location meets the criteria for collection locations established under the plan.
 
B.  The operator must fully underwrite the costs of all battery collection containers provided to a collection location under the program, including the costs of all materials necessary to comply with the safe collection requirements of paragraph E, as well as the costs of pickup and transportation of discarded covered batteries from each collection location established under the program and may not charge an entity serving as a collection location for the cost of such items and services.
 
C.  An entity serving as a collection location may not refuse collection of a discarded covered battery based on the brand of the covered battery. An operator may not refuse the pickup or transportation of a collected discarded covered battery from a collection location based on the brand of the covered battery.
 
D.  An entity serving as a collection location may not impose on consumers any fee relating to the collection of discarded covered batteries. An entity serving as a collection location may not impose any fee on an operator as a condition of agreeing to serve as a collection location under the program.
 
E.  An entity serving as a collection location must 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.
 
9.  New producers.     A new producer must notify the commissioner and take other action in accordance with this subsection prior to selling or offering to sell a covered battery in the State. For the purposes of this subsection, "new producer" means a producer that is not participating in an existing program established under this section that seeks to sell or offer for sale a covered battery in the State on or after the date that an approved covered battery stewardship plan is first implemented under subsection 4.
 
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 under this subsection to the commissioner, the producer shall submit a plan to the commissioner in accordance with subsection 2 or join an existing organization operating a program in the State.
 
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 offer to sell a covered battery in the State after the expiration of the 90-day period.
 
A new producer that fails to submit a plan or join an existing organization within the time limits described in this subsection may not sell or offer for sale a covered battery in the State until the producer submits a plan that is approved by the commissioner or joins an existing organization.
 
10.  List of producers and brands.     The department shall post on its publicly accessible website a list of the producers participating and brands included in a covered battery stewardship program.
 
11.  Annual report.     By October 15th of the calendar year after the calendar year in which an approved covered battery stewardship plan is implemented under subsection 4, and annually thereafter, an operator of a covered battery stewardship program shall submit a report to the commissioner regarding the activities carried out by the program during the previous calendar year. The report must include, but is not limited to:
 
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 and adequacy 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 and activities 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.  A summary financial statement, consistent with the requirements of subsection 2, paragraph J, documenting the financing of the covered battery stewardship program as well as the total cost of implementing the covered battery stewardship plan and operating the program during the reporting period. The summary financial statement must include a breakdown of operation, collection, transportation, disposition and communication costs;
 
F.  An evaluation of the effectiveness of the methods used to achieve the performance goals of the program included in the plan pursuant to subsection 2, paragraph I, as well as an update to the performance goals, if necessary, based on the experience of the program during the previous calendar year; and
 
G.  Any other recommendations for change to the program to improve the convenience of the collection system, education or outreach efforts or program evaluation methods or to otherwise better facilitate the collection, recycling and management of discarded covered batteries in the State.
 
12.  Administration and enforcement; fees.     The department shall enforce this section and may adopt rules 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.
 
The department shall charge a reasonable application fee, not to exceed $10,000, to be paid by an applicant under subsection 2 for review and approval of a covered battery stewardship plan. The department may establish a reasonable annual fee, not to exceed $25,000, to be paid by an operator, to cover the department's actual costs for annual report review, administration and enforcement.
 
13.  Antitrust exclusions.     A producer or covered battery stewardship organization, including a producer's or organization's officers, members, employees and agents that develop a plan for, implement and operate a covered battery stewardship program in accordance with this section, is immune from liability for the producer's or organization's conduct under state laws relating to antitrust, restraint of trade, unfair trade practices and other regulation of trade or commerce only to the extent necessary to develop a plan for, implement and operate the program.
Sec. 4. 38 MRSA §2165, sub-§2, as enacted by PL 1991, c. 808, §2, is amended to read:
 
2. Disposal ban.   A person employed directly or indirectly by a government agency, or an industrial, communications or medical facility may not knowingly dispose of a dry cell mercuric oxide battery or a rechargeable battery in a manner that is not part of a collection system established under subsection 4 or under section 1611.
Sec. 5. 38 MRSA §2165, sub-§4, as enacted by PL 1991, c. 808, §2, is amended to read:
 
4. Manufacturer responsibility.  AExcept as provided under section 1611, subsection 7, a manufacturer of dry cell mercuric oxide or rechargeable batteries that are subject to subsection 1 shall:
 
A. Establish and maintain a system for the proper collection, transportation and processing of waste dry cell mercuric oxide and rechargeable batteries for purchasers in this State;
 
B. Clearly inform each purchaser that intends to use these batteries of the prohibition on disposal of dry cell mercuric oxide and rechargeable batteries and of the available systems for proper collection, transportation and processing of these batteries;
 
C. Identify a collection system through which mercuric oxide and rechargeable batteries must be returned to the manufacturer or to a manufacturer-designated collection site; and
 
D. Include the cost of proper collection, transportation and processing of the waste batteries in the sales transaction or agreement between the manufacturer and any purchaser.
 
SUMMARY
This bill provides for the establishment of a new stewardship program in the State for discarded nickel-cadmium and small sealed lead-acid rechargeable batteries. Under the bill, a producer of such rechargeable batteries, or an organization comprising one or more producers of such rechargeable batteries, submits a plan for the establishment of a battery stewardship program to the Commissioner of Environmental Protection for approval. Once approved, a program operates to provide convenient, free statewide collection opportunities for discarded rechargeable batteries covered under the program, and discarded rechargeable batteries collected through the program are recycled or otherwise responsibly managed. This bill also amends existing laws relating to certain rechargeable battery types to avoid statutory conflicts with the new stewardship program for rechargeable batteries.