Bill Text: MN SF639 | 2013-2014 | 88th Legislature | Engrossed
Bill Title: Product stewardship programs for architectural paint and primary batteries producers establishment
Sponsorship: Partisan Bill (Democrat 4)
Status: (Introduced - Dead) 2013-03-18 - Comm report: To pass as amended and re-refer to Finance [SF639 Detail]
Download: Minnesota-2013-SF639-Engrossed.html
1.2relating to environment; providing for product stewardship programs; requiring
1.3a report;amending Minnesota Statutes 2012, section 13.7411, subdivision 4;
1.4proposing coding for new law in Minnesota Statutes, chapter 115A.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2012, section 13.7411, subdivision 4, is amended to read:
1.7 Subd. 4. Waste management. (a) Product stewardship programs. Trade secret
1.8information submitted to the Pollution Control Agency under product stewardship
1.9programs are classified under sections 115A.141 to 115A.142.
1.10(b) Transfer station data. Data received by a county or district from a transfer
1.11station under section115A.84, subdivision 5 , are classified under that section.
1.12(b) (c) Solid waste records. Records of solid waste facilities received, inspected,
1.13or copied by a county pursuant to section115A.882 are classified pursuant to section
1.14115A.882, subdivision 3
.
1.15(c) (d) Customer lists. Customer lists provided to counties or cities by solid waste
1.16collectors are classified under section115A.93, subdivision 5 .
1.17 Sec. 2. [115A.1415] ARCHITECTURAL PAINT; PRODUCT STEWARDSHIP
1.18PROGRAM; STEWARDSHIP PLAN.
1.19 Subdivision 1. Definitions. For purposes of this section, the following terms have
1.20the meanings given:
1.21(1) "architectural paint" means interior and exterior architectural coatings sold in
1.22containers of five gallons or less. Architectural paint does not include industrial coatings,
1.23original equipment coatings, or specialty coatings;
2.1(2) "brand" means a name, symbol, word, or mark that identifies architectural paint,
2.2rather than its components, and attributes the paint to the owner or licensee of the brand as
2.3the producer;
2.4(3) "discarded paint" means architectural paint that is no longer used for its
2.5manufactured purpose;
2.6(4) "producer" means a person that:
2.7(i) has legal ownership of the brand, brand name, or cobrand of architectural paint
2.8sold in the state;
2.9(ii) imports architectural paint branded by a producer that meets item (i) when the
2.10producer has no physical presence in the United States;
2.11(iii) if items (i) and (ii) do not apply, makes unbranded architectural paint that is
2.12sold in the state; or
2.13(iv) sells architectural paint at wholesale or retail, does not have legal ownership of
2.14the brand, and elects to fulfill the responsibilities of the producer for the architectural paint
2.15by certifying that election in writing to the commissioner;
2.16(5) "recycling" means the process of collecting and preparing recyclable materials and
2.17reusing the materials in their original form or using them in manufacturing processes that
2.18do not cause the destruction of recyclable materials in a manner that precludes further use;
2.19(6) "retailer" means any person who offers architectural paint for sale at retail in
2.20the state;
2.21(7) "reuse" means donating or selling collected architectural paint back into the
2.22market for its original intended use, when the architectural paint retains its original
2.23purpose and performance characteristics;
2.24(8) "sale" or "sell" means transfer of title of architectural paint for consideration,
2.25including a remote sale conducted through a sales outlet, catalog, Web site, or similar
2.26electronic means. Sale or sell includes a lease through which architectural paint is
2.27provided to a consumer by a producer, wholesaler, or retailer;
2.28(9) "stewardship assessment" means the amount added to the purchase price of
2.29architectural paint sold in the state that is necessary to cover the cost of collecting,
2.30transporting, and processing postconsumer architectural paint by the producer or
2.31stewardship organization pursuant to a product stewardship program;
2.32(10) "stewardship organization" means an organization appointed by one or more
2.33producers to act as an agent on behalf of the producer to design, submit, and administer a
2.34product stewardship program under this section; and
2.35(11) "stewardship plan" means a detailed plan describing the manner in which a
2.36product stewardship program under subdivision 2 will be implemented.
3.1 Subd. 2. Product stewardship program. For architectural paint sold in the state,
3.2producers must, individually or through a stewardship organization, implement and
3.3finance a statewide product stewardship program that manages the architectural paint by
3.4reducing the paint's waste generation, promoting its reuse and recycling, and providing for
3.5negotiation and execution of agreements to collect, transport, and process the architectural
3.6paint for end-of-life recycling and reuse.
3.7 Subd. 3. Requirement for sale. (a) On and after July 1, 2014, or three months after
3.8program plan approval, whichever is sooner, no producer, wholesaler, or retailer may sell
3.9or offer for sale in the state architectural paint unless the paint's producer participates in an
3.10approved stewardship plan, either individually or through a stewardship organization.
3.11(b) Each producer must operate a product stewardship program approved by the
3.12agency or enter into an agreement with a stewardship organization to operate, on the
3.13producer's behalf, a product stewardship program approved by the agency.
3.14 Subd. 4. Requirement to submit plan. (a) On or before March 1, 2014, and before
3.15offering architectural paint for sale in the state, a producer must submit a stewardship
3.16plan to the agency and receive approval of the plan or must submit documentation to the
3.17agency that demonstrates the producer has entered into an agreement with a stewardship
3.18organization to be an active participant in an approved product stewardship program as
3.19described in subdivision 2. A stewardship plan must include all elements required under
3.20subdivision 5.
3.21(b) An amendment to the plan, if determined necessary by the commissioner, must
3.22be submitted every five years.
3.23(c) It is the responsibility of the entities responsible for each stewardship plan to
3.24notify the agency within 30 days of any significant changes or modifications to the plan or
3.25its implementation. Within 30 days of the notification, a written plan revision must be
3.26submitted to the agency for review and approval.
3.27 Subd. 5. Stewardship plan content. A stewardship plan must contain:
3.28(1) certification that the product stewardship program will accept all discarded
3.29paint regardless of which producer produced the architectural paint and its individual
3.30components;
3.31(2) contact information for the individual and the entity submitting the plan, a list of
3.32all producers participating in the product stewardship program, and the brands covered by
3.33the product stewardship program;
3.34(3) a description of the methods by which the discarded paint will be collected in all
3.35areas in the state without relying on end-of-life fees, including an explanation of how the
3.36collection system will be convenient and adequate to serve the needs of small businesses
4.1and residents in both urban and rural areas on an ongoing basis and a discussion of how
4.2the existing household hazardous waste infrastructure will be considered when selecting
4.3collection sites;
4.4(4) a description of how the adequacy of the collection program will be monitored
4.5and maintained;
4.6(5) the names and locations of collectors, transporters, and recyclers that will
4.7manage discarded paint;
4.8(6) a description of how the discarded paint and the paint's components will be
4.9safely and securely transported, tracked, and handled from collection through final
4.10recycling and processing;
4.11(7) a description of the method that will be used to reuse, deconstruct, or recycle
4.12the discarded paint to ensure that the paint's components, to the extent feasible, are
4.13transformed or remanufactured into finished products for use;
4.14(8) a description of the promotion and outreach activities that will be used to
4.15encourage participation in the collection and recycling programs and how the activities'
4.16effectiveness will be evaluated and the program modified, if necessary;
4.17(9) the proposed stewardship assessment. The producer or stewardship organization
4.18shall propose a uniform stewardship assessment for any architectural paint sold in the
4.19state. The proposed stewardship assessment shall be reviewed by an independent auditor
4.20to ensure that the assessment does not exceed the costs of the product stewardship program
4.21and the independent auditor shall recommend an amount for the stewardship assessment.
4.22The agency must approve the stewardship assessment;
4.23(10) evidence of adequate insurance and financial assurance that may be required for
4.24collection, handling, and disposal operations;
4.25(11) five-year performance goals, including an estimate of the percentage of
4.26discarded paint that will be collected, reused, and recycled during each of the first five
4.27years of the stewardship plan. The performance goals must include a specific goal for the
4.28amount of discarded paint that will be collected and recycled and reused during each year
4.29of the plan. The performance goals must be based on:
4.30(i) the most recent collection data available for the state;
4.31(ii) the estimated amount of architectural paint disposed of annually;
4.32(iii) the weight of the architectural paint that is expected to be available for collection
4.33annually; and
4.34(iv) actual collection data from other existing stewardship programs.
4.35The stewardship plan must state the methodology used to determine these goals; and
5.1(12) a discussion of the status of end markets for collected architectural paint and
5.2what, if any, additional end markets are needed to improve the functioning of the program.
5.3 Subd. 6. Consultation required. Each stewardship organization or individual
5.4producer submitting a stewardship plan must consult with stakeholders including
5.5retailers, contractors, collectors, recyclers, local government, and customers during the
5.6development of the plan.
5.7 Subd. 7. Agency review and approval. (a) Within 90 days after receipt of a proposed
5.8stewardship plan, the agency shall determine whether the plan complies with subdivision
5.94. If the agency approves a plan, the agency shall notify the applicant of the plan approval
5.10in writing. If the agency rejects a plan, the agency shall notify the applicant in writing of
5.11the reasons for rejecting the plan. An applicant whose plan is rejected by the agency must
5.12submit a revised plan to the agency within 60 days after receiving notice of rejection.
5.13(b) Any proposed changes to a stewardship plan must be approved by the agency
5.14in writing.
5.15 Subd. 8. Plan availability. All draft and approved stewardship plans shall be
5.16placed on the agency's Web site for at least 30 days and made available at the agency's
5.17headquarters for public review and comment.
5.18 Subd. 9. Conduct authorized. A producer or stewardship organization that
5.19organizes collection, transport, and processing of architectural paint under this section
5.20is immune from liability for the conduct under state laws relating to antitrust, restraint
5.21of trade, unfair trade practices, and other regulation of trade or commerce only to the
5.22extent that the conduct is necessary to plan and implement the producer's or organization's
5.23chosen organized collection or recycling system.
5.24 Subd. 10. Responsibility of producers. (a) On and after the date of implementation
5.25of a product stewardship program according to this section, a producer of architectural
5.26paint must add the stewardship assessment, as established under subdivision 5, clause (9),
5.27to the cost of architectural paint sold to retailers and distributors in the state by the producer.
5.28(b) Producers of architectural paint or the stewardship organization shall provide
5.29consumers with educational materials regarding the stewardship assessment and product
5.30stewardship program. The materials must include, but are not limited to, information
5.31regarding available end-of-life management options for architectural paint offered through
5.32the product stewardship program and information that notifies consumers that a charge
5.33for the operation of the product stewardship program is included in the purchase price of
5.34architectural paint sold in the state.
6.1 Subd. 11. Responsibility of retailers. (a) On and after July 1, 2014, or three months
6.2after program plan approval, whichever is sooner, no architectural paint may be sold in the
6.3state unless the paint's producer is participating in an approved stewardship plan.
6.4(b) On and after the implementation date of a product stewardship program according
6.5to this section, each retailer or distributor, as applicable, must ensure that the full amount
6.6of the stewardship assessment added to the cost of architectural paint by producers under
6.7subdivision 10 is included in the purchase price of all architectural paint sold in the state.
6.8(c) Any retailer may participate, on a voluntary basis, as a designated collection
6.9point pursuant to a product stewardship program under this section and in accordance
6.10with applicable law.
6.11(d) No retailer or distributor shall be found to be in violation of this subdivision if,
6.12on the date the architectural paint was ordered from the producer or its agent, the producer
6.13was listed as compliant on the agency's Web site according to subdivision 14.
6.14 Subd. 12. Stewardship reports. Beginning October 1, 2015, producers of
6.15architectural paint sold in the state must individually or through a stewardship organization
6.16submit an annual report to the agency describing the product stewardship program. At a
6.17minimum, the report must contain:
6.18(1) a description of the methods used to collect, transport, and process architectural
6.19paint in all regions of the state;
6.20(2) the weight of all architectural paint collected in all regions of the state and a
6.21comparison to the performance goals and recycling rates established in the stewardship
6.22plan;
6.23(3) the amount of unwanted architectural paint collected in the state by method of
6.24disposition, including reuse, recycling, and other methods of processing;
6.25(4) samples of educational materials provided to consumers and an evaluation of the
6.26effectiveness of the materials and the methods used to disseminate the materials; and
6.27(5) an independent financial audit.
6.28 Subd. 13. Data classification. Trade secret information, as defined under section
6.2913.37, submitted to the agency under this section is nonpublic data under section 13.37,
6.30subdivision 2.
6.31 Subd. 14. Agency responsibilities. The agency shall provide, on its Web site, a
6.32list of all compliant producers and brands participating in stewardship plans that the
6.33agency has approved and a list of all producers and brands the agency has identified as
6.34noncompliant with this section.
6.35 Subd. 15. Local government responsibilities. (a) A city, county, or other public
6.36agency may choose to participate voluntarily in a product stewardship program.
7.1(b) Cities, counties, and other public agencies are encouraged to work with producers
7.2and stewardship organizations to assist in meeting product stewardship program reuse and
7.3recycling obligations, by providing education and outreach or using other strategies.
7.4(c) A city, county, or other public agency that participates in a product stewardship
7.5program must report for the first year of the program to the agency using the reporting
7.6form provided by the agency on the cost savings as a result of participation and describe
7.7how the savings were used.
7.8 Subd. 16. Administrative fee. (a) The stewardship organization or individual
7.9producer submitting a stewardship plan shall pay the agency an annual administrative fee.
7.10The agency shall set the fee at an amount that, when paid by every stewardship organization
7.11or individual producer that submits a stewardship plan, is adequate to cover the agency's
7.12full costs of administering and enforcing this section. The agency may establish a variable
7.13fee based on relevant factors, including, but not limited to, the portion of architectural
7.14paint sold in the state by members of the organization compared to the total amount of
7.15architectural paint sold in the state by all organizations submitting a stewardship plan.
7.16(b) The total amount of annual fees collected under this subdivision must not exceed
7.17the amount necessary to recover costs incurred by the agency in connection with the
7.18administration and enforcement of this section.
7.19(c) The agency shall identify the direct program development or regulatory costs
7.20it incurs under this section before stewardship plans are submitted and shall establish a
7.21fee in an amount adequate to cover those costs, which shall be paid by a stewardship
7.22organization or individual producer that submits a stewardship plan. The commissioner
7.23must make the proposed fee available for public review and comment for at least 30 days.
7.24(d) A stewardship organization or individual producer subject to this section must
7.25pay to the commissioner the agency's administrative fee under paragraph (a) on or before
7.26July 1, 2014, and annually thereafter and the agency's onetime development fee under
7.27paragraph (c) on or before July 1 the year following submission of a stewardship plan.
7.28Each year after the initial payment, the annual administrative fee may not exceed five
7.29percent of the aggregate stewardship assessment collected for the preceding calendar year.
7.30 (e) The commissioner must deposit the fees collected under this section in the
7.31state treasury and credit the fee to the miscellaneous special revenue account in the
7.32environmental fund. Fees in the account may be used by the commissioner to implement
7.33and enforce this section.
7.34 Sec. 3. [115A.142] PRIMARY BATTERIES; PRODUCT STEWARDSHIP
7.35PROGRAM; STEWARDSHIP PLAN.
8.1 Subdivision 1. Definitions. For purposes of this section, the following terms have
8.2the meaning given:
8.3(1) "brand" means a name, symbol, word, or mark that identifies a primary battery,
8.4rather than its components, and attributes the battery to the owner or licensee of the brand
8.5as the producer;
8.6(2) "discarded battery" means a primary battery that is no longer used for its
8.7manufactured purpose;
8.8(3) "primary battery" means an electric cell that generates an electromotive force by
8.9the direct and usually irreversible conversion of chemical energy into electrical energy.
8.10It cannot be recharged efficiently by an electric current;
8.11(4) "producer" means a person that:
8.12(i) has legal ownership of the brand, brand name, or cobrand of a primary battery
8.13sold in the state;
8.14(ii) imports a primary battery branded by a producer that meets item (i) when the
8.15producer has no physical presence in the United States;
8.16(iii) if items (i) and (ii) do not apply, makes an unbranded primary battery that is
8.17sold in the state; or
8.18(iv) sells a primary battery at wholesale or retail, does not have legal ownership
8.19of the brand, and elects to fulfill the responsibilities of the producer for the battery by
8.20certifying that election in writing to the commissioner;
8.21(5) "recycling" means the process of collecting and preparing recyclable materials and
8.22reusing the materials in their original form or using them in manufacturing processes that
8.23do not cause the destruction of recyclable materials in a manner that precludes further use;
8.24(6) "retailer" means any person who offers primary batteries for sale at retail in
8.25the state;
8.26(7) "sale" or "sell" means transfer of title of a primary battery for consideration,
8.27including a remote sale conducted through a sales outlet, catalog, Web site, or similar
8.28electronic means. Sale or sell includes a lease through which a primary battery is provided
8.29to a consumer by a producer, wholesaler, or retailer;
8.30(8) "stewardship organization" means an organization appointed by one or more
8.31producers to act as an agent on behalf of the producer to design, submit, and administer a
8.32product stewardship program under this section; and
8.33(9) "stewardship plan" means a detailed plan describing the manner in which a
8.34product stewardship program under subdivision 2 will be implemented.
8.35 Subd. 2. Product stewardship program. For each primary battery sold in the
8.36state, producers must, individually or through a stewardship organization, implement
9.1and finance a statewide product stewardship program that manages primary batteries by
9.2reducing primary battery waste generation, promoting primary battery recycling, and
9.3providing for negotiation and execution of agreements to collect, transport, and process
9.4primary batteries for end-of-life recycling.
9.5 Subd. 3. Requirement for sale. (a) On and after December 1, 2014, or three months
9.6after program plan approval, whichever is sooner, no producer, wholesaler, or retailer may
9.7sell or offer for sale in the state a primary battery unless the battery's producer participates
9.8in an approved stewardship plan, either individually or through a stewardship organization.
9.9(b) Each producer must operate a product stewardship program approved by the
9.10agency or enter into an agreement with a stewardship organization to operate, on the
9.11producer's behalf, a product stewardship program approved by the agency.
9.12 Subd. 4. Requirement to submit plan. (a) On or before August 1, 2014, and before
9.13offering a primary battery for sale in the state, a producer must submit a stewardship
9.14plan to the agency and receive approval of the plan or must submit documentation to the
9.15agency that demonstrates the producer has entered into an agreement with a stewardship
9.16organization to be an active participant in an approved product stewardship program as
9.17described in subdivision 2. A stewardship plan must include all elements required under
9.18subdivision 5.
9.19(b) An amendment to the plan, if determined necessary by the commissioner, must
9.20be submitted every five years.
9.21(c) It is the responsibility of the entities responsible for each stewardship plan to
9.22notify the agency within 30 days of any significant changes or modifications to the plan or
9.23its implementation. Within 30 days of the notification, a written plan revision must be
9.24submitted to the agency for review and approval.
9.25 Subd. 5. Stewardship plan content. A stewardship plan must contain:
9.26(1) certification that the product stewardship program will accept discarded primary
9.27batteries regardless of which producer produced the batteries and their individual
9.28components;
9.29(2) contact information for the individual and the entity submitting the plan, a list of
9.30all producers participating in the product stewardship program, and the brands covered by
9.31the product stewardship program;
9.32(3) a description of the methods by which the discarded primary batteries will
9.33be collected in all areas in the state without relying on end-of-life fees, including an
9.34explanation of how the collection system will be convenient and adequate to serve the
9.35needs of small businesses and residents in both urban and rural areas on an ongoing basis;
10.1(4) a description of how the adequacy of the collection program will be monitored
10.2and maintained;
10.3(5) the names and locations of collectors, transporters, and recyclers that will
10.4manage discarded batteries;
10.5(6) a description of how the discarded batteries and the batteries' components will
10.6be safely and securely transported, tracked, and handled from collection through final
10.7recycling and processing;
10.8(7) a description of the method that will be used to recycle the discarded primary
10.9batteries to ensure that the batteries' components, to the extent feasible, are transformed or
10.10remanufactured into finished batteries for use;
10.11(8) a description of the promotion and outreach activities that will be used to
10.12encourage participation in the collection and recycling programs and how the activities'
10.13effectiveness will be evaluated and the program modified, if necessary;
10.14(9) evidence of adequate insurance and financial assurance that may be required for
10.15collection, handling, and disposal operations;
10.16(10) five-year performance goals, including an estimate of the percentage of
10.17discarded batteries that will be collected, reused, and recycled during each of the first five
10.18years of the stewardship plan. The performance goals must include a specific escalating
10.19goal for the amount of discarded batteries that will be collected and recycled during each
10.20year of the plan. The performance goals must be based on:
10.21(i) the most recent collection data available for the state;
10.22(ii) the estimated amount of primary batteries disposed of annually;
10.23(iii) the weight of primary batteries that is expected to be available for collection
10.24annually;
10.25(iv) actual collection data from other existing stewardship programs; and
10.26 (v) the market share of the producers participating in the plan.
10.27The stewardship plan must state the methodology used to determine these goals; and
10.28(11) a discussion of the status of end markets for discarded batteries and what, if any,
10.29additional end markets are needed to improve the functioning of the program.
10.30 Subd. 6. Consultation required. Each stewardship organization or individual
10.31producer submitting a stewardship plan must consult with stakeholders including retailers,
10.32collectors, recyclers, local government, and customers during the development of the plan.
10.33 Subd. 7. Agency review and approval. (a) Within 90 days after receipt of a proposed
10.34stewardship plan, the agency shall determine whether the plan complies with subdivision
10.355. If the agency approves a plan, the agency shall notify the applicant of the plan approval
10.36in writing. If the agency rejects a plan, the agency shall notify the applicant in writing of
11.1the reasons for rejecting the plan. An applicant whose plan is rejected by the agency must
11.2submit a revised plan to the agency within 60 days after receiving notice of rejection.
11.3(b) Any proposed changes to a stewardship plan must be approved by the agency
11.4in writing.
11.5 Subd. 8. Plan availability. All draft and approved stewardship plans shall be
11.6placed on the agency's Web site for at least 30 days and made available at the agency's
11.7headquarters for public review and comment.
11.8 Subd. 9. Conduct authorized. A producer or stewardship organization that
11.9organizes collection, transport, and processing of primary batteries under this section
11.10is immune from liability for the conduct under state laws relating to antitrust, restraint
11.11of trade, unfair trade practices, and other regulation of trade or commerce only to the
11.12extent that the conduct is necessary to plan and implement the producer's or organization's
11.13chosen organized collection or recycling system.
11.14 Subd. 10. Responsibility of retailers. (a) On and after December 1, 2014, or three
11.15months after program plan approval, whichever is sooner, no primary battery may be sold
11.16in the state unless the battery's producer is participating in an approved stewardship plan.
11.17(b) Any retailer may participate, on a voluntary basis, as a designated collection
11.18point pursuant to a product stewardship program under this section and in accordance
11.19with applicable law.
11.20(c) No retailer or distributor shall be found to be in violation of this subdivision if,
11.21on the date the primary battery was ordered from the producer or its agent, the producer
11.22was listed as compliant on the agency's Web site according to subdivision 13.
11.23 Subd. 11. Stewardship reports. Beginning March 1, 2016, producers of primary
11.24batteries sold in the state must individually or through a stewardship organization
11.25submit an annual report to the agency describing the product stewardship program. At a
11.26minimum, the report must contain:
11.27(1) a description of the methods used to collect, transport, and process primary
11.28batteries in all regions of the state;
11.29(2) the weight of all primary batteries collected in all regions of the state and a
11.30comparison to the performance goals and recycling rates established in the stewardship
11.31plan;
11.32(3) the amount of discarded primary batteries collected in the state by method of
11.33disposition, including recycling and other methods of processing;
11.34(4) samples of educational materials provided to consumers and an evaluation of the
11.35effectiveness of the materials and the methods used to disseminate the materials; and
11.36(5) an independent financial audit of the stewardship organization.
12.1 Subd. 12. Data classification. Trade secret information, as defined under section
12.213.37, submitted to the agency under this section is nonpublic data under section 13.37,
12.3subdivision 2.
12.4 Subd. 13. Agency responsibilities. The agency shall provide, on its Web site, a
12.5list of all compliant producers and brands participating in stewardship plans that the
12.6agency has approved and a list of all producers and brands the agency has identified as
12.7noncompliant with this section.
12.8 Subd. 14. Local government responsibilities. (a) A city, county, or other public
12.9agency may choose to participate voluntarily in a product stewardship program.
12.10(b) Cities, counties, and other public agencies are encouraged to work with producers
12.11and stewardship organizations to assist in meeting product stewardship program recycling
12.12obligations, by providing education and outreach or using other strategies.
12.13(c) A city, county, or other public agency that participates in a product stewardship
12.14program must report for the first year of the program to the agency using the reporting
12.15form provided by the agency on the cost savings as a result of participation and describe
12.16how the savings were used.
12.17 Subd. 15. Private enforcement. (a) The operator of a statewide product stewardship
12.18program established under subdivision 2 that incurs costs exceeding $5,000 to collect,
12.19handle, recycle, or properly dispose of discarded primary batteries sold or offered for sale
12.20in Minnesota by a producer who does not implement its own program or participate in a
12.21program implemented by a stewardship organization, may bring a civil action or actions
12.22to recover costs and fees as specified in paragraph (b) from each nonimplementing or
12.23nonparticipating producer who can reasonably be identified from a brand or marking on a
12.24used consumer battery or from other information.
12.25 (b) An action under paragraph (a) may be brought against one or more primary
12.26battery producers, provided that no such action may be commenced:
12.27 (1) prior to 60 days after written notice of the operator's intention to file suit has been
12.28provided to the agency and the defendant or defendants; or
12.29 (2) if the agency has commenced enforcement actions under subdivision 10 and is
12.30diligently pursuing such actions.
12.31 (c) In any action under paragraph (b), the plaintiff operator may recover from
12.32a defendant nonimplementing or nonparticipating primary battery producer costs the
12.33plaintiff incurred to collect, handle, recycle, or properly dispose of primary batteries
12.34reasonably identified as having originated from the defendant, plus the plaintiff's attorneys'
12.35fees and litigation costs.
13.1 Subd. 16. Administrative fee. (a) The stewardship organization or individual
13.2producer submitting a stewardship plan shall pay the agency an annual administrative fee.
13.3The agency shall set the fee at an amount that, when paid by every stewardship organization
13.4or individual producer that submits a stewardship plan, is adequate to cover the agency's
13.5full costs of administering and enforcing this section. The agency may establish a variable
13.6fee based on relevant factors, including, but not limited to, the portion of primary batteries
13.7sold in the state by members of the organization compared to the total amount of primary
13.8batteries sold in the state by all organizations submitting a stewardship plan.
13.9(b) The total amount of annual fees collected under this section must not exceed
13.10the amount necessary to recover costs incurred by the agency in connection with the
13.11administration and enforcement of this section.
13.12(c) The agency shall identify the direct program development or regulatory costs
13.13it incurs under this section before stewardship plans are submitted and shall establish a
13.14fee in an amount adequate to cover those costs, which shall be paid by a stewardship
13.15organization or individual producer that submits a stewardship plan. The commissioner
13.16must make the proposed fee available for public review and comment for at least 30 days.
13.17(d) A stewardship organization or individual producer subject to this section must
13.18pay to the commissioner the agency's administrative fee under paragraph (a) on or before
13.19July 1, 2015, and annually thereafter and the agency's onetime development fee under
13.20paragraph (c) on or before July 1 the year following submission of a stewardship plan.
13.21 (e) The commissioner must deposit the fees collected under this section in the
13.22state treasury and credit the fee to the miscellaneous special revenue account in the
13.23environmental fund. Fees in the account may be used by the commissioner to implement
13.24and enforce this section.
13.25 Subd. 17. Exemption; medical device. The requirements of this section do not
13.26apply to a medical device as defined in the Food, Drug, and Cosmetic Act, United States
13.27Code, title 21, section 321, paragraph (h).
13.28 Sec. 4. [115A.1425] REPORT TO LEGISLATURE AND GOVERNOR.
13.29As part of the report required under section 115A.121, the commissioner of the
13.30Pollution Control Agency shall provide a report to the governor and the legislature on the
13.31implementation of sections 115A.141, 115A.1415, and 115A.142.
13.32 Sec. 5. EFFECTIVE DATE.
13.33Sections 1 to 4 are effective July 1, 2013.
1.3a report;amending Minnesota Statutes 2012, section 13.7411, subdivision 4;
1.4proposing coding for new law in Minnesota Statutes, chapter 115A.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2012, section 13.7411, subdivision 4, is amended to read:
1.7 Subd. 4. Waste management. (a) Product stewardship programs. Trade secret
1.8information submitted to the Pollution Control Agency under product stewardship
1.9programs are classified under sections 115A.141 to 115A.142.
1.10(b) Transfer station data. Data received by a county or district from a transfer
1.11station under section
1.12
1.13or copied by a county pursuant to section
1.15
1.16collectors are classified under section
1.17 Sec. 2. [115A.1415] ARCHITECTURAL PAINT; PRODUCT STEWARDSHIP
1.18PROGRAM; STEWARDSHIP PLAN.
1.19 Subdivision 1. Definitions. For purposes of this section, the following terms have
1.20the meanings given:
1.21(1) "architectural paint" means interior and exterior architectural coatings sold in
1.22containers of five gallons or less. Architectural paint does not include industrial coatings,
1.23original equipment coatings, or specialty coatings;
2.1(2) "brand" means a name, symbol, word, or mark that identifies architectural paint,
2.2rather than its components, and attributes the paint to the owner or licensee of the brand as
2.3the producer;
2.4(3) "discarded paint" means architectural paint that is no longer used for its
2.5manufactured purpose;
2.6(4) "producer" means a person that:
2.7(i) has legal ownership of the brand, brand name, or cobrand of architectural paint
2.8sold in the state;
2.9(ii) imports architectural paint branded by a producer that meets item (i) when the
2.10producer has no physical presence in the United States;
2.11(iii) if items (i) and (ii) do not apply, makes unbranded architectural paint that is
2.12sold in the state; or
2.13(iv) sells architectural paint at wholesale or retail, does not have legal ownership of
2.14the brand, and elects to fulfill the responsibilities of the producer for the architectural paint
2.15by certifying that election in writing to the commissioner;
2.16(5) "recycling" means the process of collecting and preparing recyclable materials and
2.17reusing the materials in their original form or using them in manufacturing processes that
2.18do not cause the destruction of recyclable materials in a manner that precludes further use;
2.19(6) "retailer" means any person who offers architectural paint for sale at retail in
2.20the state;
2.21(7) "reuse" means donating or selling collected architectural paint back into the
2.22market for its original intended use, when the architectural paint retains its original
2.23purpose and performance characteristics;
2.24(8) "sale" or "sell" means transfer of title of architectural paint for consideration,
2.25including a remote sale conducted through a sales outlet, catalog, Web site, or similar
2.26electronic means. Sale or sell includes a lease through which architectural paint is
2.27provided to a consumer by a producer, wholesaler, or retailer;
2.28(9) "stewardship assessment" means the amount added to the purchase price of
2.29architectural paint sold in the state that is necessary to cover the cost of collecting,
2.30transporting, and processing postconsumer architectural paint by the producer or
2.31stewardship organization pursuant to a product stewardship program;
2.32(10) "stewardship organization" means an organization appointed by one or more
2.33producers to act as an agent on behalf of the producer to design, submit, and administer a
2.34product stewardship program under this section; and
2.35(11) "stewardship plan" means a detailed plan describing the manner in which a
2.36product stewardship program under subdivision 2 will be implemented.
3.1 Subd. 2. Product stewardship program. For architectural paint sold in the state,
3.2producers must, individually or through a stewardship organization, implement and
3.3finance a statewide product stewardship program that manages the architectural paint by
3.4reducing the paint's waste generation, promoting its reuse and recycling, and providing for
3.5negotiation and execution of agreements to collect, transport, and process the architectural
3.6paint for end-of-life recycling and reuse.
3.7 Subd. 3. Requirement for sale. (a) On and after July 1, 2014, or three months after
3.8program plan approval, whichever is sooner, no producer, wholesaler, or retailer may sell
3.9or offer for sale in the state architectural paint unless the paint's producer participates in an
3.10approved stewardship plan, either individually or through a stewardship organization.
3.11(b) Each producer must operate a product stewardship program approved by the
3.12agency or enter into an agreement with a stewardship organization to operate, on the
3.13producer's behalf, a product stewardship program approved by the agency.
3.14 Subd. 4. Requirement to submit plan. (a) On or before March 1, 2014, and before
3.15offering architectural paint for sale in the state, a producer must submit a stewardship
3.16plan to the agency and receive approval of the plan or must submit documentation to the
3.17agency that demonstrates the producer has entered into an agreement with a stewardship
3.18organization to be an active participant in an approved product stewardship program as
3.19described in subdivision 2. A stewardship plan must include all elements required under
3.20subdivision 5.
3.21(b) An amendment to the plan, if determined necessary by the commissioner, must
3.22be submitted every five years.
3.23(c) It is the responsibility of the entities responsible for each stewardship plan to
3.24notify the agency within 30 days of any significant changes or modifications to the plan or
3.25its implementation. Within 30 days of the notification, a written plan revision must be
3.26submitted to the agency for review and approval.
3.27 Subd. 5. Stewardship plan content. A stewardship plan must contain:
3.28(1) certification that the product stewardship program will accept all discarded
3.29paint regardless of which producer produced the architectural paint and its individual
3.30components;
3.31(2) contact information for the individual and the entity submitting the plan, a list of
3.32all producers participating in the product stewardship program, and the brands covered by
3.33the product stewardship program;
3.34(3) a description of the methods by which the discarded paint will be collected in all
3.35areas in the state without relying on end-of-life fees, including an explanation of how the
3.36collection system will be convenient and adequate to serve the needs of small businesses
4.1and residents in both urban and rural areas on an ongoing basis and a discussion of how
4.2the existing household hazardous waste infrastructure will be considered when selecting
4.3collection sites;
4.4(4) a description of how the adequacy of the collection program will be monitored
4.5and maintained;
4.6(5) the names and locations of collectors, transporters, and recyclers that will
4.7manage discarded paint;
4.8(6) a description of how the discarded paint and the paint's components will be
4.9safely and securely transported, tracked, and handled from collection through final
4.10recycling and processing;
4.11(7) a description of the method that will be used to reuse, deconstruct, or recycle
4.12the discarded paint to ensure that the paint's components, to the extent feasible, are
4.13transformed or remanufactured into finished products for use;
4.14(8) a description of the promotion and outreach activities that will be used to
4.15encourage participation in the collection and recycling programs and how the activities'
4.16effectiveness will be evaluated and the program modified, if necessary;
4.17(9) the proposed stewardship assessment. The producer or stewardship organization
4.18shall propose a uniform stewardship assessment for any architectural paint sold in the
4.19state. The proposed stewardship assessment shall be reviewed by an independent auditor
4.20to ensure that the assessment does not exceed the costs of the product stewardship program
4.21and the independent auditor shall recommend an amount for the stewardship assessment.
4.22The agency must approve the stewardship assessment;
4.23(10) evidence of adequate insurance and financial assurance that may be required for
4.24collection, handling, and disposal operations;
4.25(11) five-year performance goals, including an estimate of the percentage of
4.26discarded paint that will be collected, reused, and recycled during each of the first five
4.27years of the stewardship plan. The performance goals must include a specific goal for the
4.28amount of discarded paint that will be collected and recycled and reused during each year
4.29of the plan. The performance goals must be based on:
4.30(i) the most recent collection data available for the state;
4.31(ii) the estimated amount of architectural paint disposed of annually;
4.32(iii) the weight of the architectural paint that is expected to be available for collection
4.33annually; and
4.34(iv) actual collection data from other existing stewardship programs.
4.35The stewardship plan must state the methodology used to determine these goals; and
5.1(12) a discussion of the status of end markets for collected architectural paint and
5.2what, if any, additional end markets are needed to improve the functioning of the program.
5.3 Subd. 6. Consultation required. Each stewardship organization or individual
5.4producer submitting a stewardship plan must consult with stakeholders including
5.5retailers, contractors, collectors, recyclers, local government, and customers during the
5.6development of the plan.
5.7 Subd. 7. Agency review and approval. (a) Within 90 days after receipt of a proposed
5.8stewardship plan, the agency shall determine whether the plan complies with subdivision
5.94. If the agency approves a plan, the agency shall notify the applicant of the plan approval
5.10in writing. If the agency rejects a plan, the agency shall notify the applicant in writing of
5.11the reasons for rejecting the plan. An applicant whose plan is rejected by the agency must
5.12submit a revised plan to the agency within 60 days after receiving notice of rejection.
5.13(b) Any proposed changes to a stewardship plan must be approved by the agency
5.14in writing.
5.15 Subd. 8. Plan availability. All draft and approved stewardship plans shall be
5.16placed on the agency's Web site for at least 30 days and made available at the agency's
5.17headquarters for public review and comment.
5.18 Subd. 9. Conduct authorized. A producer or stewardship organization that
5.19organizes collection, transport, and processing of architectural paint under this section
5.20is immune from liability for the conduct under state laws relating to antitrust, restraint
5.21of trade, unfair trade practices, and other regulation of trade or commerce only to the
5.22extent that the conduct is necessary to plan and implement the producer's or organization's
5.23chosen organized collection or recycling system.
5.24 Subd. 10. Responsibility of producers. (a) On and after the date of implementation
5.25of a product stewardship program according to this section, a producer of architectural
5.26paint must add the stewardship assessment, as established under subdivision 5, clause (9),
5.27to the cost of architectural paint sold to retailers and distributors in the state by the producer.
5.28(b) Producers of architectural paint or the stewardship organization shall provide
5.29consumers with educational materials regarding the stewardship assessment and product
5.30stewardship program. The materials must include, but are not limited to, information
5.31regarding available end-of-life management options for architectural paint offered through
5.32the product stewardship program and information that notifies consumers that a charge
5.33for the operation of the product stewardship program is included in the purchase price of
5.34architectural paint sold in the state.
6.1 Subd. 11. Responsibility of retailers. (a) On and after July 1, 2014, or three months
6.2after program plan approval, whichever is sooner, no architectural paint may be sold in the
6.3state unless the paint's producer is participating in an approved stewardship plan.
6.4(b) On and after the implementation date of a product stewardship program according
6.5to this section, each retailer or distributor, as applicable, must ensure that the full amount
6.6of the stewardship assessment added to the cost of architectural paint by producers under
6.7subdivision 10 is included in the purchase price of all architectural paint sold in the state.
6.8(c) Any retailer may participate, on a voluntary basis, as a designated collection
6.9point pursuant to a product stewardship program under this section and in accordance
6.10with applicable law.
6.11(d) No retailer or distributor shall be found to be in violation of this subdivision if,
6.12on the date the architectural paint was ordered from the producer or its agent, the producer
6.13was listed as compliant on the agency's Web site according to subdivision 14.
6.14 Subd. 12. Stewardship reports. Beginning October 1, 2015, producers of
6.15architectural paint sold in the state must individually or through a stewardship organization
6.16submit an annual report to the agency describing the product stewardship program. At a
6.17minimum, the report must contain:
6.18(1) a description of the methods used to collect, transport, and process architectural
6.19paint in all regions of the state;
6.20(2) the weight of all architectural paint collected in all regions of the state and a
6.21comparison to the performance goals and recycling rates established in the stewardship
6.22plan;
6.23(3) the amount of unwanted architectural paint collected in the state by method of
6.24disposition, including reuse, recycling, and other methods of processing;
6.25(4) samples of educational materials provided to consumers and an evaluation of the
6.26effectiveness of the materials and the methods used to disseminate the materials; and
6.27(5) an independent financial audit.
6.28 Subd. 13. Data classification. Trade secret information, as defined under section
6.2913.37, submitted to the agency under this section is nonpublic data under section 13.37,
6.30subdivision 2.
6.31 Subd. 14. Agency responsibilities. The agency shall provide, on its Web site, a
6.32list of all compliant producers and brands participating in stewardship plans that the
6.33agency has approved and a list of all producers and brands the agency has identified as
6.34noncompliant with this section.
6.35 Subd. 15. Local government responsibilities. (a) A city, county, or other public
6.36agency may choose to participate voluntarily in a product stewardship program.
7.1(b) Cities, counties, and other public agencies are encouraged to work with producers
7.2and stewardship organizations to assist in meeting product stewardship program reuse and
7.3recycling obligations, by providing education and outreach or using other strategies.
7.4(c) A city, county, or other public agency that participates in a product stewardship
7.5program must report for the first year of the program to the agency using the reporting
7.6form provided by the agency on the cost savings as a result of participation and describe
7.7how the savings were used.
7.8 Subd. 16. Administrative fee. (a) The stewardship organization or individual
7.9producer submitting a stewardship plan shall pay the agency an annual administrative fee.
7.10The agency shall set the fee at an amount that, when paid by every stewardship organization
7.11or individual producer that submits a stewardship plan, is adequate to cover the agency's
7.12full costs of administering and enforcing this section. The agency may establish a variable
7.13fee based on relevant factors, including, but not limited to, the portion of architectural
7.14paint sold in the state by members of the organization compared to the total amount of
7.15architectural paint sold in the state by all organizations submitting a stewardship plan.
7.16(b) The total amount of annual fees collected under this subdivision must not exceed
7.17the amount necessary to recover costs incurred by the agency in connection with the
7.18administration and enforcement of this section.
7.19(c) The agency shall identify the direct program development or regulatory costs
7.20it incurs under this section before stewardship plans are submitted and shall establish a
7.21fee in an amount adequate to cover those costs, which shall be paid by a stewardship
7.22organization or individual producer that submits a stewardship plan. The commissioner
7.23must make the proposed fee available for public review and comment for at least 30 days.
7.24(d) A stewardship organization or individual producer subject to this section must
7.25pay to the commissioner the agency's administrative fee under paragraph (a) on or before
7.26July 1, 2014, and annually thereafter and the agency's onetime development fee under
7.27paragraph (c) on or before July 1 the year following submission of a stewardship plan.
7.28Each year after the initial payment, the annual administrative fee may not exceed five
7.29percent of the aggregate stewardship assessment collected for the preceding calendar year.
7.30 (e) The commissioner must deposit the fees collected under this section in the
7.31state treasury and credit the fee to the miscellaneous special revenue account in the
7.32environmental fund. Fees in the account may be used by the commissioner to implement
7.33and enforce this section.
7.34 Sec. 3. [115A.142] PRIMARY BATTERIES; PRODUCT STEWARDSHIP
7.35PROGRAM; STEWARDSHIP PLAN.
8.1 Subdivision 1. Definitions. For purposes of this section, the following terms have
8.2the meaning given:
8.3(1) "brand" means a name, symbol, word, or mark that identifies a primary battery,
8.4rather than its components, and attributes the battery to the owner or licensee of the brand
8.5as the producer;
8.6(2) "discarded battery" means a primary battery that is no longer used for its
8.7manufactured purpose;
8.8(3) "primary battery" means an electric cell that generates an electromotive force by
8.9the direct and usually irreversible conversion of chemical energy into electrical energy.
8.10It cannot be recharged efficiently by an electric current;
8.11(4) "producer" means a person that:
8.12(i) has legal ownership of the brand, brand name, or cobrand of a primary battery
8.13sold in the state;
8.14(ii) imports a primary battery branded by a producer that meets item (i) when the
8.15producer has no physical presence in the United States;
8.16(iii) if items (i) and (ii) do not apply, makes an unbranded primary battery that is
8.17sold in the state; or
8.18(iv) sells a primary battery at wholesale or retail, does not have legal ownership
8.19of the brand, and elects to fulfill the responsibilities of the producer for the battery by
8.20certifying that election in writing to the commissioner;
8.21(5) "recycling" means the process of collecting and preparing recyclable materials and
8.22reusing the materials in their original form or using them in manufacturing processes that
8.23do not cause the destruction of recyclable materials in a manner that precludes further use;
8.24(6) "retailer" means any person who offers primary batteries for sale at retail in
8.25the state;
8.26(7) "sale" or "sell" means transfer of title of a primary battery for consideration,
8.27including a remote sale conducted through a sales outlet, catalog, Web site, or similar
8.28electronic means. Sale or sell includes a lease through which a primary battery is provided
8.29to a consumer by a producer, wholesaler, or retailer;
8.30(8) "stewardship organization" means an organization appointed by one or more
8.31producers to act as an agent on behalf of the producer to design, submit, and administer a
8.32product stewardship program under this section; and
8.33(9) "stewardship plan" means a detailed plan describing the manner in which a
8.34product stewardship program under subdivision 2 will be implemented.
8.35 Subd. 2. Product stewardship program. For each primary battery sold in the
8.36state, producers must, individually or through a stewardship organization, implement
9.1and finance a statewide product stewardship program that manages primary batteries by
9.2reducing primary battery waste generation, promoting primary battery recycling, and
9.3providing for negotiation and execution of agreements to collect, transport, and process
9.4primary batteries for end-of-life recycling.
9.5 Subd. 3. Requirement for sale. (a) On and after December 1, 2014, or three months
9.6after program plan approval, whichever is sooner, no producer, wholesaler, or retailer may
9.7sell or offer for sale in the state a primary battery unless the battery's producer participates
9.8in an approved stewardship plan, either individually or through a stewardship organization.
9.9(b) Each producer must operate a product stewardship program approved by the
9.10agency or enter into an agreement with a stewardship organization to operate, on the
9.11producer's behalf, a product stewardship program approved by the agency.
9.12 Subd. 4. Requirement to submit plan. (a) On or before August 1, 2014, and before
9.13offering a primary battery for sale in the state, a producer must submit a stewardship
9.14plan to the agency and receive approval of the plan or must submit documentation to the
9.15agency that demonstrates the producer has entered into an agreement with a stewardship
9.16organization to be an active participant in an approved product stewardship program as
9.17described in subdivision 2. A stewardship plan must include all elements required under
9.18subdivision 5.
9.19(b) An amendment to the plan, if determined necessary by the commissioner, must
9.20be submitted every five years.
9.21(c) It is the responsibility of the entities responsible for each stewardship plan to
9.22notify the agency within 30 days of any significant changes or modifications to the plan or
9.23its implementation. Within 30 days of the notification, a written plan revision must be
9.24submitted to the agency for review and approval.
9.25 Subd. 5. Stewardship plan content. A stewardship plan must contain:
9.26(1) certification that the product stewardship program will accept discarded primary
9.27batteries regardless of which producer produced the batteries and their individual
9.28components;
9.29(2) contact information for the individual and the entity submitting the plan, a list of
9.30all producers participating in the product stewardship program, and the brands covered by
9.31the product stewardship program;
9.32(3) a description of the methods by which the discarded primary batteries will
9.33be collected in all areas in the state without relying on end-of-life fees, including an
9.34explanation of how the collection system will be convenient and adequate to serve the
9.35needs of small businesses and residents in both urban and rural areas on an ongoing basis;
10.1(4) a description of how the adequacy of the collection program will be monitored
10.2and maintained;
10.3(5) the names and locations of collectors, transporters, and recyclers that will
10.4manage discarded batteries;
10.5(6) a description of how the discarded batteries and the batteries' components will
10.6be safely and securely transported, tracked, and handled from collection through final
10.7recycling and processing;
10.8(7) a description of the method that will be used to recycle the discarded primary
10.9batteries to ensure that the batteries' components, to the extent feasible, are transformed or
10.10remanufactured into finished batteries for use;
10.11(8) a description of the promotion and outreach activities that will be used to
10.12encourage participation in the collection and recycling programs and how the activities'
10.13effectiveness will be evaluated and the program modified, if necessary;
10.14(9) evidence of adequate insurance and financial assurance that may be required for
10.15collection, handling, and disposal operations;
10.16(10) five-year performance goals, including an estimate of the percentage of
10.17discarded batteries that will be collected, reused, and recycled during each of the first five
10.18years of the stewardship plan. The performance goals must include a specific escalating
10.19goal for the amount of discarded batteries that will be collected and recycled during each
10.20year of the plan. The performance goals must be based on:
10.21(i) the most recent collection data available for the state;
10.22(ii) the estimated amount of primary batteries disposed of annually;
10.23(iii) the weight of primary batteries that is expected to be available for collection
10.24annually;
10.25(iv) actual collection data from other existing stewardship programs; and
10.26 (v) the market share of the producers participating in the plan.
10.27The stewardship plan must state the methodology used to determine these goals; and
10.28(11) a discussion of the status of end markets for discarded batteries and what, if any,
10.29additional end markets are needed to improve the functioning of the program.
10.30 Subd. 6. Consultation required. Each stewardship organization or individual
10.31producer submitting a stewardship plan must consult with stakeholders including retailers,
10.32collectors, recyclers, local government, and customers during the development of the plan.
10.33 Subd. 7. Agency review and approval. (a) Within 90 days after receipt of a proposed
10.34stewardship plan, the agency shall determine whether the plan complies with subdivision
10.355. If the agency approves a plan, the agency shall notify the applicant of the plan approval
10.36in writing. If the agency rejects a plan, the agency shall notify the applicant in writing of
11.1the reasons for rejecting the plan. An applicant whose plan is rejected by the agency must
11.2submit a revised plan to the agency within 60 days after receiving notice of rejection.
11.3(b) Any proposed changes to a stewardship plan must be approved by the agency
11.4in writing.
11.5 Subd. 8. Plan availability. All draft and approved stewardship plans shall be
11.6placed on the agency's Web site for at least 30 days and made available at the agency's
11.7headquarters for public review and comment.
11.8 Subd. 9. Conduct authorized. A producer or stewardship organization that
11.9organizes collection, transport, and processing of primary batteries under this section
11.10is immune from liability for the conduct under state laws relating to antitrust, restraint
11.11of trade, unfair trade practices, and other regulation of trade or commerce only to the
11.12extent that the conduct is necessary to plan and implement the producer's or organization's
11.13chosen organized collection or recycling system.
11.14 Subd. 10. Responsibility of retailers. (a) On and after December 1, 2014, or three
11.15months after program plan approval, whichever is sooner, no primary battery may be sold
11.16in the state unless the battery's producer is participating in an approved stewardship plan.
11.17(b) Any retailer may participate, on a voluntary basis, as a designated collection
11.18point pursuant to a product stewardship program under this section and in accordance
11.19with applicable law.
11.20(c) No retailer or distributor shall be found to be in violation of this subdivision if,
11.21on the date the primary battery was ordered from the producer or its agent, the producer
11.22was listed as compliant on the agency's Web site according to subdivision 13.
11.23 Subd. 11. Stewardship reports. Beginning March 1, 2016, producers of primary
11.24batteries sold in the state must individually or through a stewardship organization
11.25submit an annual report to the agency describing the product stewardship program. At a
11.26minimum, the report must contain:
11.27(1) a description of the methods used to collect, transport, and process primary
11.28batteries in all regions of the state;
11.29(2) the weight of all primary batteries collected in all regions of the state and a
11.30comparison to the performance goals and recycling rates established in the stewardship
11.31plan;
11.32(3) the amount of discarded primary batteries collected in the state by method of
11.33disposition, including recycling and other methods of processing;
11.34(4) samples of educational materials provided to consumers and an evaluation of the
11.35effectiveness of the materials and the methods used to disseminate the materials; and
11.36(5) an independent financial audit of the stewardship organization.
12.1 Subd. 12. Data classification. Trade secret information, as defined under section
12.213.37, submitted to the agency under this section is nonpublic data under section 13.37,
12.3subdivision 2.
12.4 Subd. 13. Agency responsibilities. The agency shall provide, on its Web site, a
12.5list of all compliant producers and brands participating in stewardship plans that the
12.6agency has approved and a list of all producers and brands the agency has identified as
12.7noncompliant with this section.
12.8 Subd. 14. Local government responsibilities. (a) A city, county, or other public
12.9agency may choose to participate voluntarily in a product stewardship program.
12.10(b) Cities, counties, and other public agencies are encouraged to work with producers
12.11and stewardship organizations to assist in meeting product stewardship program recycling
12.12obligations, by providing education and outreach or using other strategies.
12.13(c) A city, county, or other public agency that participates in a product stewardship
12.14program must report for the first year of the program to the agency using the reporting
12.15form provided by the agency on the cost savings as a result of participation and describe
12.16how the savings were used.
12.17 Subd. 15. Private enforcement. (a) The operator of a statewide product stewardship
12.18program established under subdivision 2 that incurs costs exceeding $5,000 to collect,
12.19handle, recycle, or properly dispose of discarded primary batteries sold or offered for sale
12.20in Minnesota by a producer who does not implement its own program or participate in a
12.21program implemented by a stewardship organization, may bring a civil action or actions
12.22to recover costs and fees as specified in paragraph (b) from each nonimplementing or
12.23nonparticipating producer who can reasonably be identified from a brand or marking on a
12.24used consumer battery or from other information.
12.25 (b) An action under paragraph (a) may be brought against one or more primary
12.26battery producers, provided that no such action may be commenced:
12.27 (1) prior to 60 days after written notice of the operator's intention to file suit has been
12.28provided to the agency and the defendant or defendants; or
12.29 (2) if the agency has commenced enforcement actions under subdivision 10 and is
12.30diligently pursuing such actions.
12.31 (c) In any action under paragraph (b), the plaintiff operator may recover from
12.32a defendant nonimplementing or nonparticipating primary battery producer costs the
12.33plaintiff incurred to collect, handle, recycle, or properly dispose of primary batteries
12.34reasonably identified as having originated from the defendant, plus the plaintiff's attorneys'
12.35fees and litigation costs.
13.1 Subd. 16. Administrative fee. (a) The stewardship organization or individual
13.2producer submitting a stewardship plan shall pay the agency an annual administrative fee.
13.3The agency shall set the fee at an amount that, when paid by every stewardship organization
13.4or individual producer that submits a stewardship plan, is adequate to cover the agency's
13.5full costs of administering and enforcing this section. The agency may establish a variable
13.6fee based on relevant factors, including, but not limited to, the portion of primary batteries
13.7sold in the state by members of the organization compared to the total amount of primary
13.8batteries sold in the state by all organizations submitting a stewardship plan.
13.9(b) The total amount of annual fees collected under this section must not exceed
13.10the amount necessary to recover costs incurred by the agency in connection with the
13.11administration and enforcement of this section.
13.12(c) The agency shall identify the direct program development or regulatory costs
13.13it incurs under this section before stewardship plans are submitted and shall establish a
13.14fee in an amount adequate to cover those costs, which shall be paid by a stewardship
13.15organization or individual producer that submits a stewardship plan. The commissioner
13.16must make the proposed fee available for public review and comment for at least 30 days.
13.17(d) A stewardship organization or individual producer subject to this section must
13.18pay to the commissioner the agency's administrative fee under paragraph (a) on or before
13.19July 1, 2015, and annually thereafter and the agency's onetime development fee under
13.20paragraph (c) on or before July 1 the year following submission of a stewardship plan.
13.21 (e) The commissioner must deposit the fees collected under this section in the
13.22state treasury and credit the fee to the miscellaneous special revenue account in the
13.23environmental fund. Fees in the account may be used by the commissioner to implement
13.24and enforce this section.
13.25 Subd. 17. Exemption; medical device. The requirements of this section do not
13.26apply to a medical device as defined in the Food, Drug, and Cosmetic Act, United States
13.27Code, title 21, section 321, paragraph (h).
13.28 Sec. 4. [115A.1425] REPORT TO LEGISLATURE AND GOVERNOR.
13.29As part of the report required under section 115A.121, the commissioner of the
13.30Pollution Control Agency shall provide a report to the governor and the legislature on the
13.31implementation of sections 115A.141, 115A.1415, and 115A.142.
13.32 Sec. 5. EFFECTIVE DATE.
13.33Sections 1 to 4 are effective July 1, 2013.
