SENATE BILL 1
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Michael S. Sanchez
AN ACT
RELATING TO THE ENVIRONMENT; ENACTING THE BEVERAGE CONTAINER RECYCLING ACT; CREATING A FUND; PROVIDING PENALTIES; MAKING APPROPRIATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Beverage Container Recycling Act".
Section 2. DEFINITIONS.--As used in the Beverage Container Recycling Act:
A. "beverage" means a soft drink, soda water, carbonated, natural or mineral water or other nonalcoholic carbonated drink; beer, ale or other malt drink of whatever alcoholic content; or a mixed wine drink or a mixed spirit drink;
B. "beverage container" means an airtight metal, glass, paper or plastic container or a container composed of a combination of these materials that, at the time of sale, contains one gallon or less of a beverage;
C. "dealer" means a person who sells or offers for sale to consumers within this state a beverage in a beverage container, including an operator of a vending machine containing beverages in beverage containers;
D. "distributor" means a person who sells beverages in beverage containers to a dealer within New Mexico, including a manufacturer who engages in such sales;
E. "empty returnable container" means a beverage container that contains nothing except the residue of its original contents;
F. "manufacturer" means a person who bottles, cans or otherwise places beverages in beverage containers for sale to distributors, dealers or consumers;
G. "mixed spirit drink" means a drink containing ten percent or less alcohol by volume consisting of distilled spirits mixed with nonalcoholic beverages or flavoring or coloring materials and that may also contain water, fruit juices, fruit adjuncts, sugar, carbon dioxide or preservatives; or any spirit-based beverage, regardless of the percent of alcohol by volume, that is manufactured for sale in a metal container;
H. "mixed wine drink" means a drink or similar product marketed as a wine cooler and containing less than seven percent alcohol by volume consisting of wine and plain, sparkling, or carbonated water and containing any one or more of the following:
(1) nonalcoholic beverages;
(2) flavoring;
(3) coloring materials;
(4) fruit juices;
(5) fruit adjuncts;
(6) sugar;
(7) carbon dioxide; or
(8) preservatives;
I. "nonrefillable container" means a returnable container that is not intended to be refilled for sale by a manufacturer;
J. "nonreturnable container" means a beverage container upon which no deposit or a deposit of less than ten cents ($.10) has been paid or is required to be paid upon the removal of the container from the sale or consumption area or for which no cash refund or a refund of less than ten cents ($.10) is payable by a dealer or distributor in this state of that beverage in beverage containers;
K. "operator of a vending machine" means equally its owner, the person who refills it and the owner or lessee of the property upon which it is located;
L. "overredeemer" means a distributor or manufacturer whose annual total value of deposits collected on beverage containers sold within New Mexico is less than the annual total value of refunds made upon beverage containers redeemed within New Mexico;
M. "returnable container" means a beverage container upon which a deposit of at least ten cents ($.10) has been paid or is required to be paid upon the removal of the container from the sale or consumption area and for which a refund of at least ten cents ($.10) in cash is payable by every dealer or distributor in this state of beverages in such beverage containers;
N. "sale or consumption area" means the premises within the property of the dealer or of the dealer's lessor where the sale is made within which beverages in returnable containers may be consumed without payment of a deposit and upon removing a beverage container from which the customer is required by the dealer to pay the deposit;
O. "superintendent" means the superintendent of regulation and licensing; and
P. "underredeemer" means a distributor or manufacturer whose annual total value of deposits collected on beverage containers sold within New Mexico exceeds the annual total value of refunds made upon beverage containers redeemed within New Mexico.
Section 3. NONRETURNABLE CONTAINERS--RETURNABLE CONTAINERS--REDEMPTION CENTERS--REFUNDS.--
A. A dealer shall not sell, offer for sale or give to a consumer a nonreturnable container or a beverage in a nonreturnable container.
B. A dealer who regularly sells beverages for consumption off the dealer's premises shall provide on the premises, or within one hundred yards of the premises on which the dealer sells or offers for sale a beverage in a returnable container, a convenient means whereby the containers of any kind, size and brand sold or offered for sale by the dealer may be returned by, and the deposit refunded in cash to, a person, regardless of whether the person is the original customer of that dealer and regardless of whether the container was sold by that dealer.
C. Regional centers for the redemption of returnable containers may be established in addition to, but not as substitutes for, the means established for refunds of deposits as provided in the Beverage Container Recycling Act.
D. Except as provided in Subsections E and G of this section, a dealer shall accept from a person an empty returnable container of any kind, size or brand sold or offered for sale by that dealer and pay to that person its full refund value in cash.
E. A dealer who does not require a deposit on a returnable container when the contents are consumed in the dealer's sale or consumption area is not required to pay a refund for accepting that empty container.
F. Except as provided in Subsection G of this section, a distributor shall accept from a dealer an empty returnable container of any kind, size or brand sold or offered for sale by that distributor and pay to the dealer its full refund value in cash.
G. Each beverage container sold or offered for sale by a dealer shall clearly indicate by embossing or by a stamp, a label or other method securely affixed to the beverage container the refund value of the container and the name of this state. A dealer or distributor may refuse to accept from a person an empty returnable container that does not state on the container the refund value of the container and the name of this state. The provisions of this subsection do not apply to a refillable container having a refund value of not less than ten cents ($.10), having a brand name permanently marked on it and having a securely affixed method of indicating that it is a returnable container.
H. A dealer shall not sell, offer for sale or give to consumers a metal beverage container any part of which becomes detached when opened.
I. A person, dealer, distributor or manufacturer shall not return an empty returnable container to a dealer for a refund of the deposit if a dealer has already refunded the deposit on that returnable container. The provisions of this subsection do not prohibit a dealer from refunding the deposit on an empty returnable container each time the returnable container is sanitized by the manufacturer and reused as a beverage container.
J. A dealer is not required to accept from a person empty returnable containers for a refund in excess of twenty-five dollars ($25.00) on any given day.
K. A manufacturer licensed by the superintendent shall not require a distributor licensed by the superintendent to pay a deposit to the manufacturer on a nonrefillable container. However, a manufacturer licensed by the superintendent and a distributor licensed by the superintendent may enter into an agreement providing that either or both may originate a deposit or any portion of a deposit on a nonrefillable container if the agreement is entered into freely and without coercion.
L. A manufacturer shall refund the deposit paid on any container returned by a distributor for which a deposit has been paid by a distributor to the manufacturer.
M. The provisions of Subsections D, F and G of this section apply only to a returnable container that was originally sold in New Mexico as a filled returnable container.
N. Any person who knowingly violates the provisions of this section may be assessed a civil penalty of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000).
Section 4. BEVERAGE CONTAINER CERTIFICATION.--
A. To promote the use of reusable beverage containers of uniform design and to facilitate the return of containers to manufacturers for reuse as a beverage container, the environmental improvement board shall adopt rules to certify beverage containers. The rules shall require that beverage containers are reusable as beverage containers if more than one manufacturer in the ordinary course of business will accept the beverage container for reuse as a beverage container and more than one manufacturer in the ordinary course of business will pay the refund value of the container. The environmental improvement board shall establish rules for appropriate size classifications, each of which shall include a size range of at least three liquid ounces.
B. The environmental improvement board shall not certify more than one beverage container of a particular manufacturer in each size classification. A beverage container shall not be certified under this section if, by reason of its shape or design or by reason of words or symbols permanently inscribed thereon, whether by engraving, embossing, painting or other permanent method, it is reusable as a beverage container in the ordinary course of business only by a manufacturer of a beverage sold under a specific brand name or if the environmental improvement board finds that its use by more than one manufacturer is not of sufficient volume to promote the purposes set forth in Subsection A of this section.
C. The beverage container shall be deemed certified unless an application for certification under this section is denied by the environmental improvement board within sixty days after the application is filed.
D. The environmental improvement board may at any time review certification of a beverage container. If, upon the review, after written notice and hearing afforded to the person who filed the original application for certification of the beverage container under this section, the environmental improvement board determines that the beverage container is no longer qualified for certification, it shall withdraw certification. Withdrawal of certification shall be effective on a date specified by the environmental improvement board, but not less than thirty days after written notice to the person who filed the original application for certification of the beverage container under this section and to the manufacturer.
Section 5. REPORT--FILING.--
A. Not later than December 1, 2009 and not later than December 1 of each year thereafter, a distributor or manufacturer who originates a deposit on a beverage container shall file a report with the department of environment containing the dollar value of both the total deposits collected by the distributor or manufacturer on beverage containers sold within New Mexico and total refunds made upon beverage containers redeemed by the distributor or manufacturer within New Mexico.
B. If an underredeemer purchases empty returnable containers from an overredeemer, that purchase shall be reported by the underredeemer as a "refund made" and shall be reported by the overredeemer as a "deposit originated" in the report prescribed by Subsection A of this section. The report made by an underredeemer shall include the name and address of each overredeemer and the refund value of the empty returnable beverage containers purchased from each overredeemer. The report made by an overredeemer shall include the name and address of each underredeemer that purchased the returnable containers from that overredeemer and the refund value of the empty returnable beverage containers sold. The total consideration paid by an underredeemer to an overredeemer as authorized by this subsection shall equal the redemption value of the containers.
C. A purchase or sale made pursuant to this section during January of each year shall be included in the report for the previous calendar year only.
Section 6. UNCLAIMED BOTTLE DEPOSITS--AUDIT--ASSESSMENT--COLLECTION BY DEPARTMENT OF ENVIRONMENT--PAYMENT BY UNDERREDEEMER CREDIT--APPLYING CREDIT AGAINST PRIOR YEARS--REPORT.--
A. The department of environment may audit, assess and collect the amount of money reflecting unclaimed bottle deposits owed to the department and enforce the obligation to pay the amount of money reflecting unclaimed bottle deposits owed to the department. Not later than December 15, 2009 and not later than December 15 of each year thereafter, an underredeemer shall pay to the department of environment that amount of money by which its annual total value of deposits exceeds its annual total value of refunds made on redeemed beverage containers, subject to the overredemption credit contained in this section.
B. After December 15, 2009, an underredeemer who becomes an overredeemer in a subsequent year may credit the value of the overredemption in order to reduce the amount of money owed to the department of environment pursuant to Subsection A of this section in one or more subsequent years as a result of that person again becoming an underredeemer. The value of the overredemption may be carried forward for not more than three years or until the credit granted in this section is completely depleted, whichever occurs first.
C. A manufacturer who no longer originates deposits may carry the value of an overredemption back for prior years in order to utilize its credit and reduce the amount of underredemption owed to the department of environment pursuant to this section on a one-time basis only. Utilization of this one-time credit may be applied against underredemption amounts owed for reporting years commencing in 2010.
Section 7. BEVERAGE CONTAINER DEPOSIT FUND--CREATED.--There is created in the state treasury the "beverage container deposit fund", which is a revolving fund administered by the department of environment. The fund shall consist of money paid to the department of environment by underredeemers, income from investment of the fund and money otherwise accruing to the fund. Money in the fund shall not revert to the general fund. The department of environment shall administer the fund, and money in the fund is appropriated to the department to administer provisions of the Beverage Container Recycling Act. Money in the fund shall be disbursed on warrants signed by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment or the secretary's authorized representative. Subject to appropriations by the legislature, proceeds from the fund may be used to operate recycling programs within the department of environment, including programs that apportion amounts to each dealer on the basis of the number of empty returnable containers handled by a dealer as determined by the reports filed with the department of environment.
Section 8. UNCLAIMED DEPOSITS.--Unclaimed deposits on returnable containers are considered to be the property of the person purchasing the returnable container and are not the property of the distributor or manufacturer that originated the deposit.
Section 9. PROHIBITED RETURN--VIOLATION--CIVIL PENALTY.--
A. A person shall not return or attempt to return to a dealer for a refund a beverage container that the person knew or should have known was not purchased in New Mexico as a filled returnable container or a beverage container that the person knew or should have known did not have a deposit paid for it at the time of purchase.
B. A person who knowingly returns twenty-five or more, but not more than one hundred, nonreturnable containers may be assessed a civil penalty of not more than one hundred dollars ($100).
C. A person who knowingly returns more than one hundred nonreturnable containers or violates Subsection B of this section for a second or subsequent time may be assessed a civil penalty of not more than five hundred dollars ($500).
Section 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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