wa-law.org > bill > 2023-24 > SB 5144 > Substitute Bill
The legislature finds that:
It is in the public interest of the citizens of Washington to encourage the recovery and reuse of materials, such as metals, that replace the output of mining and other extractive industries.
Without a dedicated battery stewardship program, battery user confusion regarding proper disposal options will continue to persist.
Ensuring the proper handling, recycling, and end-of-life management of used batteries prevents the release of toxic materials into the environment and removes materials from the waste stream that, if mishandled, may present safety concerns to workers, such as by igniting fires at solid waste handling facilities. For this reason, batteries should not be placed into commingled recycling containers or disposed of via traditional garbage collection containers.
Jurisdictions around the world have successfully implemented battery stewardship laws that have helped address the challenges posed by the end-of-life management of batteries. Because it is difficult for customers to differentiate between types and chemistries of batteries, it is the best practice for battery stewardship programs to collect all battery types and chemistries. Furthermore, it is appropriate for larger batteries used in emerging market sectors such as electric vehicles, solar power arrays, and data centers, to be managed to ensure environmentally positive outcomes similar to those achieved by a battery stewardship program, both because of the potential economic value of large batteries used for these purposes and the anticipated profusion of these larger batteries as these market sectors mature.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
[Empty]
"Battery-containing product" means a product containing primary or rechargeable batteries that are covered batteries.
A "battery-containing product" does not include a covered electronic product under an approved plan implemented under chapter 70A.500 RCW.
"Battery management hierarchy" means a management system of covered batteries prioritized in descending order as follows:
Waste prevention and reduction;
Reuse, when reuse is appropriate;
Recycling, as defined in this chapter; and
Other means of end-of-life management, which may only be utilized after demonstrating to the department that it is not feasible to manage the batteries under the higher priority options in (a) through (c) of this subsection.
"Battery stewardship organization" means a producer that directly implements a battery stewardship plan required under this chapter or a nonprofit organization designated by a producer or group of producers to implement a battery stewardship plan required under this chapter.
"Collection rate" means a percentage, by weight, that a battery stewardship organization collects that is calculated by dividing the total weight of primary and rechargeable batteries collected during a calendar year by the average annual weight of primary and rechargeable batteries that were estimated to have been sold in the state by all producers participating in an approved battery stewardship plan during the previous three calendar years.
[Empty]
"Covered battery" means a portable battery or, beginning January 1, 2029, a medium format battery.
"Covered battery" does not include:
A battery contained within a medical device, as specified in Title 21 U.S.C. Sec. 321(h) as it existed as of the effective date of this section, that is not designed and marketed for sale or resale principally to consumers for personal use;
A battery that contains an electrolyte as a free liquid;
A lead acid battery weighing greater than 11 pounds;
A battery subject to the provisions of RCW 70A.205.505 through 70A.205.530; and
A battery in a battery-containing product that is not intended or designed to be easily removable from the battery-containing product.
"Department" means the department of ecology.
"Easily removable" means designed by the manufacturer to be removable by the user of the product with no more than commonly used household tools.
"Environmentally sound management practices" means practices that: (a) Comply with all applicable laws and rules to protect workers, public health, and the environment; (b) provide for adequate recordkeeping, tracking, and documenting of the fate of materials within the state and beyond; and (c) include comprehensive liability coverage for the battery stewardship organization, including environmental liability coverage.
"Final disposition" means the final processing of a collected battery to produce usable end products, at the point where the battery has been reduced to its constituent parts, reusable portions made available for use, and any residues handled as wastes in accordance with applicable law.
"Large format battery" means a rechargeable battery that weighs more than 25 pounds or has a rating of more than 2,000 watt-hours and a primary battery that weighs more than 25 pounds.
"Medium format battery" means the following primary or rechargeable covered batteries:
For rechargeable batteries, a battery weighing more than 11 pounds or has a rating of more than 300 watt-hours, or both, and no more than 25 pounds and has a rating of no more than 2,000 watt-hours;
For primary batteries, a battery weighing more than 4.4 pounds but not more than 25 pounds.
"Portable battery" means the following primary or rechargeable covered batteries:
For rechargeable batteries, a battery weighing no more than 11 pounds and has a rating of no more than 300 watt-hours;
For primary batteries, a battery weighing no more than 4.4 pounds.
"Primary battery" means a battery that is not capable of being recharged.
[Empty]
"Producer" means the following person responsible for compliance with requirements under this chapter for a covered battery or battery-containing product sold, offered for sale, or distributed in or into this state:
(A) If the battery is sold under the brand of the battery manufacturer, the producer is the person that manufactures the battery;
(B) If the battery is sold under a retail brand or under a brand owned by a person other than the manufacturer, the producer is the brand owner;
(C) If there is no person to which (a)(i)(A) or (B) of this subsection applies, the producer is the person that is the licensee of a brand or trademark under which the battery is used in a commercial enterprise, sold, offered for sale, or distributed in or into this state, whether or not the trademark is registered in this state;
(D) If there is no person described in (a)(i)(A) through (C) of this subsection over whom the state can constitutionally exercise jurisdiction, the producer is the person that imports the battery into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the battery in this state;
(E) If there is no person described in (a)(i)(A) through (D) of this subsection, the producer is the person who first distributes the battery in or into this state.
ii. For covered battery-containing products:
(A) If the battery-containing product is sold under the brand of the product manufacturer, the producer is the person that manufactures the product;
(B) If the battery-containing product is sold under a retail brand or under a brand owned by a person other than the manufacturer, the producer is the brand owner;
(C) If there is no person to which (a)(ii)(A) or (B) of this subsection applies, the producer is the person that is the licensee of a brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in or into this state, whether or not the trademark is registered in this state;
(D) If there is no person described in (a)(ii)(A) through (C) of this subsection over whom the state can constitutionally exercise jurisdiction, the producer is the person that imports the product into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the product in this state;
(E) If there is no person described in (a)(ii)(A) through (D) of this subsection, the producer is the person who first distributes the product in or into this state.
b. A person who would be considered a "producer" of a covered battery or covered battery-containing product sold, offered for sale, or distributed in or into this state, as defined in (a) of this subsection, can designate another producer for that covered battery or covered battery-containing product if another person agrees to accept responsibility and participate in a registered battery stewardship organization as the producer responsible for that covered battery or covered battery-containing product under this chapter.
"Program" means a program implemented by a battery stewardship organization consistent with an approved battery stewardship plan.
"Rechargeable battery" means a battery that contains one or more voltaic or galvanic cells, electrically connected to produce electric energy, designed to be recharged.
"Recycling" means transforming or remanufacturing waste materials into usable or marketable materials for use other than:
Combustion;
Incineration;
Energy generation;
Fuel production; or
Beneficial reuse in the construction and operation of a solid waste landfill, including use of alternative daily cover.
"Recycling efficiency rate" means the ratio of the weight of covered battery components recycled by a program operator from covered batteries to the weight of those covered batteries collected by the program operator.
"Retailer" means a person who sells covered batteries or battery-containing products in or into this state or offers or otherwise makes available covered batteries or battery-containing products to a customer, including other businesses, for use in this state.
"Urban cluster" means areas of population density of 2,500 to 50,000, as defined by the United States census bureau as of January 1, 2021.
"Urbanized area" means areas of high population density with populations of 50,000 or greater, as defined by the United States census bureau as of January 1, 2021.
Beginning January 1, 2027, each producer selling covered batteries or battery-containing products in or into the state of Washington shall participate in an approved Washington state battery stewardship plan through participation in and appropriate funding of a battery stewardship organization.
A producer that does not participate in a battery stewardship organization and battery stewardship plan may not sell covered batteries or battery-containing products covered by this chapter in or into Washington.
Beginning July 1, 2027, for portable batteries, and July 1, 2029, for medium format batteries, a retailer may not sell, offer for sale, or otherwise make available for sale a covered battery or battery-containing product unless the producer of the covered battery or battery-containing product certifies to the retailer that the producer participates in a battery stewardship organization whose plan has been approved by the department.
A retailer is in compliance with the requirements of subsection (1) of this section and is not subject to penalties under section 12 of this act as long as the website made available by the department under section 11 of this act lists, as of the date a product is made available for retail sale, a producer or brand of covered battery or battery-containing product sold by the retailer as being a participant in an approved plan or the implementer of an approved plan.
Retailers of covered batteries or battery-containing products are not required to make retail locations available to serve as collection locations for a stewardship program operated by a battery stewardship organization. Retailers that serve as a collection location must comply with the requirements for collection locations, consistent with section 8 of this act.
A retailer may not sell, offer for sale, or otherwise make available for sale covered batteries, unless those batteries are marked consistent with the requirements of section 14 of this act. A producer of a battery-containing product containing a covered battery must certify to the retailers of their product that the battery contained in the battery-containing product is marked consistent with the requirements of section 14 of this act. A retailer may rely on this certification for purposes of compliance under this subsection.
A retailer selling or offering covered batteries or battery-containing products for sale in Washington may provide information, provided to the retailer by the battery stewardship organization, regarding available end-of-life management options for covered batteries collected by the battery stewardship organization. The information that a battery stewardship organization must make available to retailers for voluntary use by retailers must include, but is not limited to, in-store signage, written materials, and other promotional materials that retailers may use to inform customers of the available end-of-life management options for covered batteries collected by the battery stewardship organization.
Retailers, producers, or battery stewardship organizations may not charge a specific point-of-sale fee to consumers to cover the administrative or operational costs of the battery stewardship organization or the battery stewardship program.
Within six months of the rules adopted by the department, each battery stewardship organization must submit a plan for covered portable batteries to the department for approval. Within 24 months of the rules adopted by the department, each battery stewardship organization must submit a plan for covered medium format batteries to the department for approval. A battery stewardship organization may submit a plan at any time to the department for review and approval. The department must review and may approve a plan based on whether it contains and adequately addresses the following components:
Lists and provides contact information for each producer, battery brand, and battery-containing product brand covered in the plan;
Proposes performance goals, consistent with section 6 of this act, including establishing performance goals for each of the next three upcoming calendar years of program implementation;
Describes how the battery stewardship organization will make retailers aware of their obligation to sell only covered batteries and battery-containing products of producers participating in an approved plan;
Describes the education and communications strategy being implemented to effectively promote participation in the approved covered battery stewardship program and provide the information necessary for effective participation of consumers, retailers, and others;
Describes how the battery stewardship organization will make available to retailers, for voluntary use, in-store signage, written materials, and other promotional materials that retailers may use to inform customers of the available end-of-life management options for covered batteries collected by the battery stewardship organization;
A list of promotional activities to be undertaken, and the identification of consumer awareness goals and strategies that the program will employ to achieve these goals after the program begins to be implemented;
Includes collection site safety training procedures related to covered battery collection activities at collection sites, including appropriate protocols to reduce risks of spills or fires and response protocols in the event of a spill or fire, and a protocol for safe management of damaged batteries that are returned to collection sites;
A description of the method to establish and administer a means for fully funding the program in a manner that equitably distributes the program's costs among the producers that are part of the battery stewardship organization. For producers that elect to meet the requirements of this chapter individually, without joining a battery stewardship organization, a description of the proposed method to establish and administer a means for fully funding the program;
A description of the financing methods used to implement the plan, consistent with section 7 of this act, including how producer fees and fee modulation will incorporate design for recycling and resource conservation as objectives, and a template reimbursement agreement, developed in consultation with local governments, for local governments and other program stakeholders;
A description of how the program will collect all covered battery chemistries and brands on a free, continuous, convenient, visible, and accessible basis, and consistent with the requirements of section 8 of this act, including a description of how the statewide convenience standard will be met and a list of collection sites, including the address and latitude and longitude of collection sites;
A description of the criteria to be used in the program to determine whether an entity may serve as a collection location for discarded batteries under the program;
Collection goals for each of the first three years of implementation of the battery stewardship plan that are based on the estimated total weight of primary and rechargeable covered batteries that have been sold in the state in the previous three calendar years by the producers participating in the battery stewardship plan;
Identification of proposed brokers, transporters, processors, and facilities to be used by the program for the final disposition of batteries and how collected batteries will be managed in:
An environmentally sound and socially just manner at facilities operating with human health and environmental protection standards that are broadly equivalent to or better than those required in the United States and other countries that are members of the battery stewardship organization for economic cooperation and development; and
A manner consistent with the battery management hierarchy, including how each proposed facility used for the final disposition of batteries will recycle or otherwise manage batteries;
Details how the program will achieve a recycling efficiency rate, calculated consistent with section 10 of this act, of at least 60 percent for rechargeable batteries and at least 70 percent for primary batteries; and
Proposes goals for increasing public awareness of the program, including subgoals applicable to public awareness of the program in vulnerable populations and overburdened communities identified by the department under chapter 70A.02 RCW, and describes how the public education and outreach components of the program under section 9 of this act will be implemented.
If required by the department, a battery stewardship organization must submit a new plan to the department for approval:
If there are significant changes to the methods of collection, transport, or end-of-life management of covered batteries under section 8 of this act that are not covered by the plan. The department may, by rule, identify the types of significant changes that require a new plan to be submitted to the department for approval. For purposes of this subsection, adding or removing a processor or transporter under the plan is not considered a significant change that requires a plan resubmittal;
To address the novel inclusion of medium format batteries or large format batteries as covered batteries under the plan; and
No less than every five years.
If required by the department, a battery stewardship organization must provide plan amendments to the department for approval:
When proposing changes to the performance goals under section 6 of this act;
When there is a change to the method of financing plan implementation under section 7 of this act. This does not include changes to the fees or fee structure established in the plan;
When adding or removing a processor or transporter, as part of a quarterly update submitted to the department; or
Proposing updated performance goals based upon the to-date experience of the program, which must be submitted at the time the second annual report is submitted to the department by a battery stewardship organization under section 10 of this act and every two years thereafter.
As part of a quarterly update, a battery stewardship organization must notify the department after a producer begins or ceases to participate in a battery stewardship organization. The quarterly update submitted to the department must also include a current list of the producers and brands participating in the plan.
No earlier than five years after the initial approval of a plan, the department may require a battery stewardship organization to submit a revised plan, which may include improvements to the collection site network or increased expenditures dedicated to education and outreach if the approved plan has not met the performance goals under section 6 of this act.
Each battery stewardship plan must include performance goals that measure, on an annual basis, the achievements of the program. Performance goals must take into consideration technical feasibility and economic practicality in achieving continuous, meaningful progress in improving:
The rate of battery collection for recycling in Washington;
The recycling efficiency of the program; and
Public awareness of the program.
The performance goals established in each battery stewardship plan must include, but are not limited to:
Target collection rates;
Target recycling efficiency rates of at least 60 percent for rechargeable batteries and at least 70 percent for primary batteries; and
Goals for public awareness, convenience, and accessibility that meet or exceed the minimum requirements established in section 8 of this act.
Each battery stewardship organization must ensure adequate funding is available to fully implement approved battery stewardship plans, including the implementation of aspects of the plan addressing:
Battery collection, transporting, and processing;
Education and outreach;
Program evaluation; and
Payment of the administrative fees to the department under section 11 of this act.
A battery stewardship organization implementing a battery stewardship plan on behalf of producers must develop, and continually improve over the years of program implementation, a system to collect charges from participating producers to cover the costs of plan implementation in an environmentally sound and socially just manner that encourages the use of design attributes that reduce the environmental impacts of covered batteries, such as through the use of eco-modulated fees. Examples of fee structures that meet the requirements of this subsection include using eco-modulated fees to:
Encourage designs intended to facilitate reuse and recycling;
Encourage the use of recycled content;
Discourage the use of problematic materials that increase system costs of managing covered products; and
Encourage other design attributes that reduce the environmental impacts of covered products.
[Empty]
Each battery stewardship organization is responsible for all costs of participating covered battery collection, transportation, processing, education, administration, agency reimbursement, recycling, and end-of-life management in accordance with the battery management hierarchy and environmentally sound management practices.
Each battery stewardship organization must meet the collection goals as specified in section 5 of this act.
A battery stewardship organization is not authorized to reduce or cease collection, education and outreach, or other activities implemented under an approved plan based on achievement of program performance goals.
[Empty]
A battery stewardship organization must reimburse local governments for demonstrable costs incurred as a result of a local government facility or solid waste handling facility serving as a collection location for a program including, but not limited to, associated labor costs and other costs associated with accessibility and collection site standards such as storage.
A battery stewardship organization shall at a minimum provide collection sites with appropriate containers for covered batteries subject to its program, training, signage, safety guidance, and educational materials, at no cost to the collection sites.
A battery stewardship organization must include in its battery stewardship plan a template of the service agreement and any other forms, contracts, or other documents for use in distribution of reimbursements. The service agreement template must be developed with local government input. The entities seeking or receiving reimbursement from the battery stewardship organization are not required to use the template agreement included in the program plan and are not limited to the terms of the template agreement included in the program plan.
Battery stewardship organizations implementing a battery stewardship plan must provide for the collection of all covered batteries, including all chemistries and brands of covered batteries, on a free, continuous, convenient, visible, and accessible basis to any person, business, government agency, or nonprofit organization. A fee may not be charged at the time unwanted covered batteries are delivered or collected for management. Except as provided in subsection (2)(b) of this section, each battery stewardship plan must allow any person, business, government agency, or nonprofit organization to discard each chemistry and brand of covered battery at each collection site that counts towards the satisfaction of the collection site criteria in subsection (3) of this section.
[Empty]
For each collection site utilized by the program, each battery stewardship organization must provide suitable collection containers for covered batteries that are segregated from other solid waste or make mutually agreeable alternative arrangements for the collection of batteries at the site. The location of collection containers at each collection site used by the program must be within view of a responsible person and must be accompanied by signage made available to the collection site by the battery stewardship organization that informs customers regarding the end-of-life management options for batteries provided by the collection site under this chapter. Each collection site must adhere to the operations manual and other safety information provided to the collection site by the battery stewardship organization.
Medium format batteries may only be collected at household hazardous waste collection locations or other locations that are staffed by persons who are certified to handle and ship hazardous materials under federal regulations adopted by the United States department of transportation pipeline and hazardous materials safety administration.
[Empty]
Damaged and defective batteries are intended to be collected at collection locations staffed by persons trained to handle and ship those batteries.
Each battery stewardship organization must provide for collection of damaged and defective batteries in each county of the state, either through collection sites or collection events with qualified staff as specified in (c)(i) of this subsection. Collection events should be provided periodically throughout the year where practicable, but must be provided at least once per year at a minimum.
As used in this subsection, "damaged and defective batteries" means batteries that have been damaged or identified by the manufacturer as being defective for safety reasons, that have the potential of producing a dangerous evolution of heat, fire, or short circuit, as referred to in 49 C.F.R. Sec. 173.185(f) as of January 1, 2023.
[Empty]
Each battery stewardship organization implementing a battery stewardship plan shall ensure statewide collection opportunities for all covered batteries. Battery stewardship organizations shall coordinate activities with other program operators, including covered battery collection and recycle programs and electronic waste recyclers, with regard to the proper management or recycling of collected covered batteries, for purposes of providing the efficient delivery of services and avoiding unnecessary duplication of effort and expense. Statewide collection opportunities must be determined by geographic information modeling that considers permanent collection sites. A program may rely, in part, on collection events to supplement the permanent collection services required in (a) and (b) of this subsection. However, only permanent collection services specified in (a) and (b) of this subsection qualify towards the satisfaction of the requirements of this subsection.
For portable batteries, each battery stewardship organization must provide statewide collection opportunities that include, but are not limited to, the provision of:
At least one permanent collection site for portable batteries within a 15 mile radius for at least 95 percent of Washington residents;
The establishment of collection sites that are accessible and convenient to overburdened communities identified by the department under chapter 70A.02 RCW, in an amount that is roughly proportional to the number and population of overburdened communities identified by the department under chapter 70A.02 RCW relative to the population or size of the state as a whole;
At least one permanent collection site for portable batteries in addition to those required in (b)(i) of this subsection for every 30,000 residents of an urbanized area and for every urban cluster of at least 30,000 residents. For the purposes of compliance with this subsection (3)(b)(iii), a battery stewardship organization and the department may rely upon designations of urban locations by the United States census bureau that are determined by the department to be similar to the definitions of urbanized area or urban cluster in section 2 of this act;
Collection opportunities for portable batteries at special locations where batteries are often spent and replaced, such as supervised locations at parks with stores and campgrounds; and
Service to areas without a permanent collection site, including service to island and geographically isolated communities.
For medium format batteries, a battery stewardship organization must provide statewide collection opportunities that include, but are not limited to, the provision of:
At least 25 collection sites in Washington;
Reasonable geographic dispersion of collection sites throughout the state;
A collection location in each county of at least 200,000 persons, as determined by the most recent population estimate of the office of financial management;
The establishment of collection sites that are accessible to public transit and that are convenient to overburdened communities identified by the department under chapter 70A.02 RCW; and
Service to areas without a permanent collection site, including service to island and geographically isolated communities. A battery stewardship organization must ensure that there is a collection site or annual collection event in each county of the state. Collection events should be provided periodically throughout the year where practicable, but must be provided at least once per year at a minimum.
[Empty]
Stewardship programs must use existing public and private waste collection services and facilities, including battery collection locations that are established through other battery collection services, transporters, consolidators, processors, retailers, and curbside services, where cost-effective, mutually agreeable, and otherwise practicable.
Stewardship programs must use as a collection site for portable batteries any retailer, wholesaler, municipality, solid waste management facility, or other entity that meets the criteria for collection locations in the approved plan, upon the submission of a request by the entity to the battery stewardship organization to serve as a collection site.
A battery stewardship organization may suspend or terminate a collection site or service that does not adhere to the collection site criteria in the approved plan and that poses an immediate health and safety concern.
[Empty]
Stewardship programs are not required to provide for the collection of battery-containing products.
Stewardship programs are not required to provide for the collection of batteries that:
Are not easily removable from the product other than by the manufacturer; and
Remain contained in a battery-containing product at the time of delivery to a collection site.
Stewardship programs are required to provide for the collection of loose batteries.
Stewardship programs are not required to provide for the collection of batteries still contained in covered electronic products under chapter 70A.500 RCW.
Batteries collected by the program must be managed consistent with the battery management hierarchy. Lower priority end-of-life battery management options on the battery management hierarchy may be used by a program only when a battery stewardship organization documents to the department that all higher priority battery management options on the battery management hierarchy are not technologically feasible or economically practical.
Each battery stewardship organization must carry out promotional activities in support of plan implementation including, but not limited to, the development:
And maintenance of a website;
And distribution of periodic press releases and articles;
And placement of advertisements for use on social media or other relevant media platforms;
Of promotional materials about the program and the restriction on the disposal of covered batteries in section 15 of this act to be used by retailers, government agencies, and nonprofit organizations;
And distribution of collection site safety training procedures that are in compliance with state law to collection sites to help ensure proper management of covered batteries at collection locations; and
And implementation of outreach and educational resources targeted to overburdened communities and vulnerable populations identified by the department under chapter 70A.02 RCW that are conceptually, linguistically, and culturally accurate for the communities served and reach the state's diverse ethnic populations, including through meaningful consultation with communities that bear disproportionately higher levels of adverse environmental and social justice impacts.
Each battery stewardship organization must provide:
Consumer-focused educational promotional materials to each collection location used by the program and accessible by customers of retailers that sell covered batteries or battery-containing products; and
Safety information related to covered battery collection activities to the operator of each collection site, including appropriate protocols to reduce risks of spills or fires and response protocols in the event of a spill or fire.
[Empty]
Each battery stewardship organization must provide educational materials to the operator of each collection site for the management of recalled batteries, which are not intended to be part of collection as provided under section 8 of this act, to help facilitate transportation and processing of recalled batteries.
A battery stewardship organization may seek reimbursement from the manufacturer of the recalled battery for expenses incurred in the collection, transportation, or processing of those batteries.
Upon request by a retailer, the battery stewardship organization must provide the retailer educational materials describing collection opportunities for batteries.
If multiple battery stewardship organizations are implementing plans approved by the department, the battery stewardship organizations must coordinate in carrying out their education and outreach responsibilities under this section and must include in their annual reports to the department under section 10 of this act a summary of their coordinated education and outreach efforts.
During the first year of program implementation and every five years thereafter, each battery stewardship organization must carry out a survey of public awareness regarding the requirements of the program established under this chapter, including the provisions of section 15 of this act. Each battery stewardship organization must share the results of the public awareness surveys with the department.
By June 1, 2028, and each June 1st thereafter, each battery stewardship organization must submit an annual report to the department covering the preceding calendar year of battery stewardship plan implementation. The report must include:
An independent financial assessment of a program implemented by the battery stewardship organization, including a breakdown of the program's expenses, such as collection, recycling, education, and overhead, when required by the department;
A summary financial statement documenting the financing of a battery stewardship organization's program and an analysis of program costs and expenditures, including an analysis of the program's expenses, such as collection, transportation, recycling, education, and administrative overhead. The summary financial statement must be sufficiently detailed to provide transparency that funds collected from producers as a result of their activities in Washington are spent on program implementation in Washington. Battery stewardship organizations implementing similar battery stewardship programs in multiple states may submit a financial statement including all covered states, as long as the statement breaks out financial information pertinent to Washington;
The weight, by chemistry, of covered batteries collected under the program;
The weight of materials recycled from covered batteries collected under the program, in total, and by method of battery recycling;
A calculation of the recycling efficiency rates, as measured consistent with subsection (2) of this section;
For each facility used for the final disposition of batteries, a description of how the facility recycled or otherwise disposed of batteries and battery components;
The weight and chemistry of batteries sent to each facility used for the final disposition of batteries. The information in this subsection (1)(g) may be approximated for program operations in Washington based on extrapolations of national or regional data for programs in operation in multiple states;
The collection rate achieved under the program, including a description of how this collection rate was calculated;
The estimated aggregate sales, by weight and chemistry, of batteries and batteries contained in or with battery-containing products sold in Washington by participating producers for each of the previous three calendar years;
A description of the manner in which the collected batteries were managed and recycled, including a discussion of best available technologies and the recycling efficiency rate;
A description of education and outreach efforts supporting plan implementation including, but not limited to, a summary of education and outreach provided to consumers, collection sites, manufacturers, distributors, and retailers by the program operator for the purpose of promoting the collection and recycling of covered batteries, a description of how that education and outreach met the requirements of section 9 of this act, samples of education and outreach materials, a summary of coordinated education and outreach efforts with any other battery stewardship organizations implementing a plan approved by the department, and a summary of any changes made during the previous calendar year to education and outreach activities;
A list of all collection locations and accompanying latitude and longitude data and an address for each listed site, and an up-to-date map indicating the location of all collection sites used to implement the program, with links to appropriate websites where there are existing websites associated with a location;
A description of methods used to collect, transport, and recycle covered batteries by the battery stewardship organization;
A summary on progress made towards the program performance goals established under section 6 of this act, and an explanation of why performance goals were not met, if applicable; and
An evaluation of the effectiveness of education and outreach activities.
The weight of batteries or recovered resources from those batteries must only be counted once and may not be counted by more than one producer.
In addition to the requirements of subsection (1) of this section, with respect to each facility used in the processing or disposition of batteries collected under the program, the battery stewardship organization must report:
Whether the facility is located domestically, in an organization for economic cooperation and development country, or in a country that meets organization for economic cooperation and development operating standards; and
What facilities processed the batteries, including a summary of any violations of environmental or labor laws and regulations over the previous three years at each facility.
If a battery stewardship organization has disposed of covered batteries though energy recovery, incineration, or landfilling during the preceding calendar year of program implementation, the annual report must specify the steps that the battery stewardship organization will take to make the recycling of covered batteries cost-effective, where possible, or to otherwise increase battery recycling rates achieved by the battery stewardship organization.
A producer or battery stewardship organization that submits information or records to the department under this chapter may request that the information or records be made available only for the confidential use of the department, the director of the department, or the appropriate division of the department. The director of the department must consider the request and if this action is not detrimental to the public interest and is otherwise in accordance with the policies and purposes of chapter 43.21A RCW, the director must grant the request for the information to remain confidential as authorized in RCW 43.21A.160.
The department must adopt rules as necessary for the purpose of implementing, administering, and enforcing this chapter. The department must by rule establish fees, to be paid annually by a battery stewardship organization, that are adequate to cover the department's full costs of implementing, administering, and enforcing this chapter. If the department adopts rules that require producers of certain large format batteries or other battery categories addressed in sections 16 and 17 of this act to participate in a battery stewardship organization regulated by the department, the department may establish fees to be paid annually by a battery stewardship organization that are adequate to cover the department's full costs of implementing, administering, and enforcing the requirements of this chapter applicable to those batteries. All fees must be based on costs related to implementing, administering, and enforcing this chapter, not to exceed expenses incurred by the department for these activities.
The responsibilities of the department in implementing, administering, and enforcing this chapter include, but are not limited to:
Reviewing submitted stewardship plans and plan amendments and making determinations as to whether to approve the plan or plan amendment;
The department must provide a letter of approval for the plan or plan amendment if it provides for the establishment of a stewardship program that meets the requirements of sections 3 through 9 of this act;
If a plan or plan amendment is rejected, the department must provide the reasons for rejecting the plan to the battery stewardship organization. The battery stewardship organization must submit a new plan within 60 days after receipt of the letter of disapproval; and
When a plan or an amendment to an approved plan is submitted under this section, the department shall make the proposed plan or amendment available for public review and comment for at least 30 days;
Reviewing annual reports submitted under section 10 of this act within 90 days of submission to ensure compliance with that section;
[Empty]
Maintaining a website that lists producers and their brands that are participating in an approved plan, and that makes available to the public each plan, plan amendment, and annual report received by the department under this chapter;
Upon the date the first plan is approved, the department must post on its website a list of producers and their brands for which the department has approved a plan. The department must update the list of producers and brands participating under an approved program plan based on information provided to the department from battery stewardship organizations; and
Providing technical assistance to producers and retailers related to the requirements of this chapter and issuing orders or imposing civil penalties authorized under section 12 of this act where the technical assistance efforts do not lead to compliance by a producer or retailer.
Beginning January 1, 2032, and every five years thereafter, the department may after consultation with battery stewardship organizations and through rules adopted by the department increase the minimum recycling efficiency rates established in section 6 of this act based on the most economically and technically feasible processes and methodology available.
[Empty]
A battery stewardship organization implementing an approved plan may bring a civil action or actions to recover costs, damages, and fees, as specified in this section, from a producer who sells or otherwise makes available in Washington covered batteries, battery-containing products, or large format batteries not included in an approved plan in violation of the requirements of this chapter. An action under this section may be brought against one or more defendants. An action may only be brought against a defendant producer when the stewardship program incurs costs in Washington, including reasonable incremental administrative and program promotional costs, in excess of $1,000 to collect, transport, and recycle or otherwise dispose of the covered batteries, battery-containing products, or large format batteries of a nonparticipating producer.
A battery stewardship organization implementing an approved stewardship plan may bring a civil action against another battery stewardship organization that under performs on its battery collection obligations under this chapter by failing to collect and provide for the end-of-life management of batteries in an amount roughly equivalent to costs imposed on the plaintiff battery stewardship organization by virtue of the failures of the defendants and legal fees and expenses.
The remedies provided in this subsection are in addition to the enforcement authority of the department and do not limit and are not limited by a decision by the department to impose a civil penalty or issue an order under subsection (2) of this section. The department is not required to audit, participate in, or provide assistance to a battery stewardship organization pursuing a civil action authorized under this subsection.
[Empty]
The department may administratively impose a civil penalty on a person who violates this chapter in an amount of up to $1,000 per violation per day.
The department may administratively impose a civil penalty of up to $10,000 per violation per day on a person for repeated violations of this chapter or failure to comply with an order issued under (c) of this subsection.
Whenever on the basis of any information the department determines that a person has violated or is in violation of this chapter, the department may issue an order requiring compliance. A person who fails to take corrective action as specified in a compliance order is liable for a civil penalty as provided in (b) of this subsection, without receiving a written warning prescribed in (e) of this subsection.
A person who is issued an order or incurs a penalty under this section may appeal the order or penalty to the pollution control hearings board established by chapter 43.21B RCW.
Prior to imposing penalties under this section, the department must provide a producer, retailer, or battery stewardship organization with a written warning for the first violation by the producer, retailer, or battery stewardship organization of the requirements of this chapter. The written warning must inform a producer, retailer, or battery stewardship organization that it must participate in an approved plan or otherwise come into compliance with the requirements of this chapter within 30 days of the notice. A producer, retailer, or battery stewardship organization that violates a provision of this chapter after the initial written warning may be assessed a penalty as provided in this subsection.
Penalties levied under subsection (2) of this section must be deposited in the responsible battery management account created in section 13 of this act.
No penalty may be assessed on an individual or resident for the improper disposal of covered batteries as described in section 15 of this act in a noncommercial or residential setting.
The responsible battery management account is created in the custody of the state treasurer. All receipts from activities undertaken consistent with chapter 70A.--- RCW (the new chapter created in section 24 of this act) must be deposited in the account. Only the director of the department or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures. Moneys in the account may be used solely by the department for administering, implementing, and enforcing the requirements of this chapter. Funds in the account may not be diverted for any purpose or activity other than those specified in this section.
Beginning January 1, 2028, a producer or retailer may only sell, distribute, or offer for sale in or into Washington a large format battery, covered battery, or battery-containing product that contains a battery that is designed or intended to be easily removable from the product, if the battery is:
Marked with an identification of the producer of the battery, unless the battery is less than one-half inch in diameter or does not contain a surface whose length exceeds one-half inch; and
Beginning January 1, 2030, marked with proper labeling to ensure proper collection and recycling, by identifying the chemistry of the battery and including an indication that the battery should not be disposed of as household waste.
A producer shall certify to its customers that the requirements of this section have been met, as provided in section 4 of this act.
The department may amend, by rule, the requirements of subsection (1) of this section to maintain consistency with the labeling requirements or voluntary standards for batteries established in federal law.
Effective July 1, 2027, for portable batteries and July 1, 2029, for medium format batteries, or the first date on which an approved plan begins to be implemented under this chapter by a battery stewardship organization, whichever comes first:
All persons, residents, businesses, and government, commercial, industrial, and retail facilities, and office buildings must dispose of unwanted covered batteries through the collection locations established by or included in the programs created by this chapter, except commercial, industrial, or government facilities and programs that utilize other responsible battery management arrangements that manage batteries in ways substantially similar to what this chapter requires of battery stewardship organizations.
A person may not place covered batteries in waste containers for disposal at incinerators, waste to energy facilities, or landfills.
A person may not place covered batteries in or on a container for mixed recyclables unless there is a separate location or compartment for the covered battery that complies with local government collection standards or guidelines.
An owner or operator of a solid waste facility may not be found in violation of this section if the facility has posted in a conspicuous location a sign stating that covered batteries must be managed through collection locations established by a battery stewardship organization and are not accepted for disposal.
A solid waste collector may not be found in violation of this section for a covered battery placed in a disposal container by the generator of the covered battery.
By July 1, 2027, the department must complete an assessment of the opportunities and challenges associated with the end-of-life management of batteries that are not covered batteries, including:
Large format batteries;
Lead acid batteries that are greater than 11 pounds or are not subject to the provisions of RCW 70A.205.505 through 70A.205.530;
Batteries contained in medical devices, as specified in Title 21 U.S.C. Sec. 360c as it existed as of the effective date of this section; and
Batteries not intended or designed to be easily removed by a customer that are contained in battery-containing products, including medical devices, and in covered electronic products that are not managed under an approved plan implemented under chapter 70A.500 RCW.
The department must consult with the department of commerce and interested stakeholders in completing the assessment, including consultation with overburdened communities and vulnerable populations identified by the department under chapter 70A.02 RCW. The assessment must identify any needed adjustments to the stewardship program requirements established in this chapter that are necessary to maximize public health, safety, and environmental benefits, such as battery reuse.
The assessment must consider:
The different categories and uses of batteries and battery-containing products listed in subsection (1) of this section;
The current economic value and reuse or recycling potential of large format batteries or large format battery components and a summary of studies examining the environmental and equity implications of displacing demand for new rare earth materials, critical materials, and other conflict materials through the reuse and recycling of batteries;
The current methods by which unwanted batteries and battery-containing products listed in subsection (1) of this section are managed in Washington and nearby states and provinces;
Challenges posed by the potential collection, management, and transport of batteries and battery-containing products listed in subsection (1) of this section, including challenges associated with removing batteries that were not intended or designed to be easily removable from products, other than by the manufacturer; and
Which criteria of this chapter should apply to batteries and battery-containing products listed in subsection (1) of this section in a manner that is identical or analogous to the requirements applicable to covered batteries.
By October 1, 2027, the department must submit a report to the appropriate committees of the legislature containing the findings of the assessment required in this section.
By January 1, 2030, the department may, but is not required to, adopt rules that require producers of batteries and battery-containing products assessed in section 16 of this act to participate in a stewardship program that achieves environmentally positive outcomes similar to those achieved by a battery stewardship program for medium format and portable batteries. As part of this rule, the department may apply some or all of the provisions of section 15 of this act to these batteries and battery-containing products.
Any rules adopted by the department under this section must require producers of batteries and battery-containing products assessed in section 16 of this act to participate in a stewardship program by no earlier than July 1, 2031.
In adopting rules, the department must consider the results of the assessment required under section 16 of this act and involve the expertise of the department's recycling development center created in chapter 70A.240 RCW.
The department must delay or exclude categories of batteries or battery-containing products, including categories of large format batteries that are excluded from the definition of a covered battery in section 2 of this act, based on the results of the assessment required under section 16 of this act, from stewardship program requirements, if the department determines that stewardship program requirements are infeasible for a category of batteries or battery-containing products due to:
An existing industry or other battery management system exists for the battery or battery-containing product category covered by the assessment in section 16 of this act that currently attains a rate of collection that exceeds 95 percent of the number of that category of batteries sold in Washington each year, and the existing battery management system processes the batteries using environmentally sound management practices; or
If delay or exclusion from program participation requirements is necessary to protect human health or the environment.
The department must exclude from any rules adopted by the department under this section any large format batteries contained in or originating from electric vehicles if, by July 1, 2030, electric vehicle batteries are managed under state law in a manner that achieves similar outcomes to the program created in this chapter.
In addition to the exemptions established in subsections (4) and (5) of this section, the department may exclude producers from some or all of the stewardship program requirements under the rules adopted by the department, based on other factors determined by the department.
By November 30, 2023, the department of ecology must report to the appropriate committees of the legislature on preliminary policy recommendations for the collection and management of electric vehicle batteries. By April 30, 2024, the department of ecology must report to the appropriate committees of the legislature on final policy recommendations for the collection and management of electric vehicle batteries.
In developing the recommendations under subsection (1) of this section, the department of ecology must:
Solicit input from representatives of automotive wrecking and salvage yards, solid waste collection and processing companies, local governments, environmental organizations, electric vehicle manufacturers, and any other interested parties; and
Examine best practices in other states and jurisdictions.
Producers or battery stewardship organizations acting on behalf of producers that prepare, submit, and implement a battery stewardship program plan pursuant to this chapter and who are thereby subject to regulation by the department are granted immunity from state laws relating to antitrust, restraint of trade, unfair trade practices, and other regulation of trade and commerce, for the limited purpose of planning, reporting, and operating a battery stewardship program, including:
The creation, implementation, or management of a battery stewardship organization and any battery stewardship plan regardless of whether it is submitted, denied, or approved;
The determination of the cost and structure of a battery stewardship plan; and
The types or quantities of batteries being recycled or otherwise managed pursuant to this chapter.
Nothing in this chapter changes or limits the authority of the Washington utilities and transportation commission to regulate collection of solid waste, including curbside collection of residential recyclable materials, nor does this chapter change or limit the authority of a city or town to provide the service itself or by contract under RCW 81.77.020.
The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70A.15 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:
Civil penalties imposed pursuant to RCW 18.104.155, 70A.15.3160, 70A.300.090, 70A.20.050, 70A.530.040, 70A.350.070, 70A.515.060, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.65.200, 70A.455.090, 76.09.170, 77.55.440, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 70A.--- RCW (the new chapter created in section 24 of this act).
Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70A.15.2520, 70A.15.3010, 70A.300.120, 70A.350.070, 70A.245.020, 70A.65.200, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330 and chapter 70A.--- RCW (the new chapter created in section 24 of this act).
Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70A.205.260.
Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70A.205 RCW.
Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70A.226.090.
Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70A.205.145.
Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).
Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.
Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW, to issue a stop work order, to issue a notice to comply, to issue a civil penalty, or to issue a notice of intent to disapprove applications.
Decisions of the department of natural resources that are reviewable under RCW 78.44.270.
Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.
Decisions of the department of ecology that are appealable under RCW 70A.245.020 to set recycled minimum postconsumer content for covered products or to temporarily exclude types of covered products in plastic containers from minimum postconsumer recycled content requirements.
Orders by the department of ecology under RCW 70A.455.080.
The following hearings shall not be conducted by the hearings board:
Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
Hearings conducted by the department pursuant to RCW 70A.15.3010, 70A.15.3070, 70A.15.3080, 70A.15.3090, 70A.15.3100, 70A.15.3110, and 90.44.180.
Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.
Hearings conducted by the department to adopt, modify, or repeal rules.
Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.
Any civil penalty provided in RCW 18.104.155, 70A.15.3160, 70A.205.280, 70A.300.090, 70A.20.050, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.65.200, 70A.455.090, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapters 70A.355 and 70A.--- (the new chapter created in section 24 of this act) RCW shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. For penalties issued by local air authorities, within 30 days after the notice is received, the person incurring the penalty may apply in writing to the authority for the remission or mitigation of the penalty. Upon receipt of the application, the authority may remit or mitigate the penalty upon whatever terms the authority in its discretion deems proper. The authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.
Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority 30 days after the date of receipt by the person penalized of the notice imposing the penalty or 30 days after the date of receipt of the notice of disposition by a local air authority of the application for relief from penalty.
A penalty shall become due and payable on the later of:
Thirty days after receipt of the notice imposing the penalty;
Thirty days after receipt of the notice of disposition by a local air authority on application for relief from penalty, if such an application is made; or
Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.
If the amount of any penalty is not paid to the department within 30 days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within 30 days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.
All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70A.15.3160, the disposition of which shall be governed by that provision, RCW 70A.245.040 and 70A.245.050, which shall be credited to the recycling enhancement account created in RCW 70A.245.100, RCW 70A.300.090, which shall be credited to the model toxics control operating account created in RCW 70A.305.180, RCW 70A.65.200, which shall be credited to the climate investment account created in RCW 70A.65.250, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 70A.355.070, which shall be credited to the underground storage tank account created by RCW 70A.355.090.
This chapter does not apply to the receipts of a battery stewardship organization formed under chapter 70A.--- RCW (the new chapter created in section 24 of this act) from charges to participating producers under a battery stewardship program as provided in section 7 of this act.
This section is not subject to the requirements of RCW 82.32.805 and 82.32.808 and is not subject to an expiration date.
The definitions in section 2 of this act apply throughout this section unless the context clearly requires otherwise.
If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.