H-2716.1
SUBSTITUTE HOUSE BILL 2144
State of Washington 68th Legislature 2024 Regular Session
By House Environment & Energy (originally sponsored by
Representatives Stonier, Berry, Taylor, Reed, Ramel, Peterson,
Callan, Macri, Street, Gregerson, Berg, Fosse, Doglio, Pollet, Kloba,
and Davis)
READ FIRST TIME 01/22/24.
1 AN ACT Relating to providing for a deposit return program for
2 qualifying beverage containers to be implemented by a distributor
3 responsibility organization; amending RCW 82.19.050 and 70A.245.100;
4 adding a new section to chapter 82.04 RCW; adding a new section to
5 chapter 35.21 RCW; adding a new section to chapter 35A.21 RCW; adding
6 a new section to chapter 36.01 RCW; adding a new chapter to Title 70A
7 RCW; creating a new section; prescribing penalties; and providing an
8 expiration date.
9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
10 NEW SECTION. Sec. 1. INTENT. (1)(a) The legislature finds that
11 the department was directed, through an independent consultant, to
12 study how plastic packaging is managed in the state, to assess
13 various policy options, and to provide recommendations to achieve
14 certain goals, which include:
15 (i) Plastic packaging sold into the state is 100 percent
16 recyclable, reusable, or compostable by January 1, 2025; and
17 (ii) Plastic packaging sold into the state incorporates at least
18 50 percent postconsumer recycled content by January 1, 2030.
19 (b) The legislature also finds that the study recommends that a
20 deposit return system is an effective way for producers to meet
21 outcomes required by an extended producer responsibility framework.
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 1 (2) The legislature finds that a 2023 study commissioned by the
2 department examined potential material recovery targets for consumer
3 packaging and found that the best possible recovery, reuse, and
4 recycling outcomes were made possible with an extended producer
5 responsibility system combined with a deposit return system for
6 qualifying beverage containers.
7 (3) Deposit return systems provide consumers with a financial
8 incentive to return their used beverage container packaging. These
9 systems may charge consumers a deposit at the point of sale that is
10 reimbursed as a refund when the beverage container is returned
11 through the deposit return system.
12 (4) The legislature intends that packaging materials be recycled
13 or reused through a deposit return system for qualifying beverage
14 containers and extended producer responsibility programs for other
15 packaging materials. It is the intent of the legislature that a
16 deposit return system for qualifying beverage containers incentivizes
17 innovation, consumer participation, and industry stewardship to
18 minimize environmental impacts.
19 NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this
20 section apply throughout this chapter unless the context clearly
21 requires otherwise.
22 (1) "Dealer" means any person, corporation, partnership,
23 business, facility, vendor, organization, or individual that sells or
24 provides merchandise, goods, or materials directly to a consumer that
25 engages in the sale of beverages in qualifying beverage containers
26 intended for consumption off site.
27 (2) "Department" means the department of ecology.
28 (3) "Deposit return system" means a qualifying beverage container
29 redemption program that pays a per-unit refund value to consumers for
30 qualifying beverage containers and collects and processes qualifying
31 beverage containers as described in this chapter.
32 (4) "Distributor" means any person or entity who engages in the
33 sale of beverages in qualifying beverage containers to a dealer or
34 entity that sells beverages in qualifying beverage containers to
35 consumers for consumption on-site in this state, including any
36 manufacturer or importer who engages in such sales to dealers,
37 entities that sell beverages in qualifying beverage containers to
38 consumers for consumption on-site, or directly to consumers, and
39 dealers who self-distribute their own brands.
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 1 (5) "Distributor responsibility organization" means a cooperative
2 association subject to chapter 23.86 RCW, or an alternative structure
3 as approved by the department, that is designated by a group of
4 distributors representing the majority of beverages sold in
5 qualifying beverage containers in the state, to develop and carry out
6 the activities required of distributors in this act.
7 (6) "Qualifying beverage container" means any separate, sealed
8 glass, metal, or plastic bottle or can, except for a carton, foil
9 pouch, drink box, or metal container that requires a tool to be
10 opened, that contains any beverage intended for human consumption,
11 and in a quantity of greater than four ounces and less than or equal
12 to one gallon, except for products with dairy milk as a first
13 ingredient and infant formula.
14 NEW SECTION. Sec. 3. RELATIONSHIP WITH OTHER PRODUCER
15 RESPONSIBILITY PROGRAMS. Notwithstanding any other extended producer
16 responsibility program or programs enacted by the legislature to
17 address the recycling or reuse of qualifying beverage containers,
18 upon the effective date of this section, all qualifying beverage
19 containers and their closures and labels of all producers cease to be
20 considered covered products in any other extended producer
21 responsibility program and are instead subject to the requirements of
22 this chapter. A producer responsibility organization or similar
23 entity implementing an extended producer responsibility organization
24 may not require the participation of producers or distributors of
25 qualifying beverage containers or impose fees on producers or
26 distributors of qualifying beverage containers and any closures or
27 labels managed under this chapter.
28 NEW SECTION. Sec. 4. FORMATION OF A DISTRIBUTOR RESPONSIBILITY
29 ORGANIZATION. (1) A group of distributors representing the majority
30 of beverages in qualifying beverage containers sold in or into
31 Washington may form a distributor responsibility organization to
32 operate a deposit return system that meets the requirements of this
33 chapter. To be approved as a distributor responsibility organization,
34 a group of distributors must register with the department and
35 demonstrate to the department's satisfaction that its initial
36 membership represents the majority of beverages in qualifying
37 beverage containers sold or made available for sale in the state.
38 Distributors may not be members of or appear on the registration of
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 1 more than one distributor responsibility organization registering
2 with the department.
3 (2) A distributor responsibility organization registering with
4 the department must submit with its registration the following:
5 (a) A list of its member distributors and their brands of
6 beverages in qualifying beverage containers; and
7 (b) The total gross unit sales volume of beverages in qualifying
8 beverage containers distributed by its members in Washington during
9 the preceding year.
10 (3) The department shall review registrations submitted by a
11 distributor responsibility organization. Except for the registration
12 of an individual distributor independently fulfilling the duties
13 required of a distributor responsibility organization, the department
14 may not approve the registration of a distributor responsibility
15 organization whose initial membership at the time of registration
16 does not represent a majority of beverages in qualifying beverage
17 containers sold or made available for sale in Washington during the
18 prior year. The department shall approve the registration of a
19 distributor responsibility organization whose initial membership at
20 the time of registration represents, to the department's
21 satisfaction, a majority of beverages in qualifying beverage
22 containers sold or made available for sale in Washington during the
23 prior year. The department shall approve the registration of an
24 individual distributor independently fulfilling the duties required
25 of a distributor responsibility organization as described in section
26 5 of this act.
27 (4) The requirements of this chapter do not take effect unless
28 and until a distributor responsibility organization, other than a
29 single distributor independently complying with the requirements of
30 this chapter, is established and registers with the department to
31 establish and operate a deposit return system, and has a plan
32 approved by the department to do so.
33 NEW SECTION. Sec. 5. DISTRIBUTOR RESPONSIBILITY ORGANIZATION
34 MEMBERSHIP AND DISTRIBUTORS INDEPENDENTLY CARRYING OUT THE DUTIES AND
35 REQUIREMENTS OF A DISTRIBUTOR RESPONSIBILITY ORGANIZATION. (1) By
36 October 1, 2025, or 120 days after a distributor responsibility
37 organization's registration is approved by the department, whichever
38 is later, each distributor that offers for sale, sells, or
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 1 distributes in or into Washington beverages in qualifying beverage
2 containers must:
3 (a) Join a distributor responsibility organization; or
4 (b) Register with the department as a distributor independently
5 carrying out all duties and requirements of a distributor
6 responsibility organization as described in this chapter. These
7 duties include, but are not limited to, the following: (i) Providing
8 a convenient bulk bag drop-off system as described in section 12 of
9 this act that accepts all qualifying beverage containers in the same
10 bag and at no cost to consumers; (ii) providing the same number and
11 geographic distribution of drop-off locations as a distributor
12 responsibility organization; (iii) paying to consumers the refund
13 value of qualifying beverage containers; (iv) meeting the performance
14 targets described in section 9 of this act; (v) paying all applicable
15 performance penalties required of a distributor responsibility
16 organization in this chapter; and (vi) fulfilling all reporting
17 requirements required in this chapter.
18 (2) Distributors that have not joined a distributor
19 responsibility organization, or that do not independently fulfill the
20 duties required of a distributor responsibility organization, may not
21 sell or supply beverages in qualifying beverage containers in or into
22 Washington after October 1, 2025, or 120 days after a distributor
23 responsibility organization is approved by the department, whichever
24 is later. Any distributor that operates in violation of this
25 requirement is subject to penalties and damages as described in
26 section 7 of this act.
27 (3) If a distributor responsibility organization, other than a
28 single distributor independently fulfilling the requirements of a
29 distributor responsibility organization, is approved by the
30 department and operates a deposit return system as described in this
31 chapter, all qualifying beverage containers are included in the
32 deposit return system and all requirements of this chapter apply to
33 the distributors of beverages in qualifying beverage containers.
34 NEW SECTION. Sec. 6. INITIAL REPORTING REQUIREMENTS. (1)(a)
35 Until a distributor responsibility organization begins to submit
36 annual reports as required in section 18 of this act, by January 15th
37 of each year, a distributor responsibility organization must submit
38 the following data for the prior calendar year:
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 1 (i) A list of its member distributors and their brands of
2 beverages in qualifying beverage containers; and
3 (ii) The number of qualifying beverage containers sold or made
4 available for sale in the state by members of the distributor
5 responsibility organization, by material category and size.
6 (b) A distributor responsibility organization may rely on member
7 reporting for the reporting requirements in this section.
8 (2) A distributor responsibility organization that submits
9 information or records to the department under this chapter may
10 request that the information or records be made available only for
11 the confidential use of the department, the director, or the
12 appropriate division of the department. The director of the
13 department shall give consideration to the request, and if the
14 director determines that this action is not detrimental to the public
15 interest and is otherwise in accordance with policies and purposes of
16 chapter 43.21A RCW, the director must grant the request for the
17 information to remain confidential as authorized in RCW 43.21A.160.
18 NEW SECTION. Sec. 7. CALCULATION AND PAYMENT OF FEES TO THE
19 DEPARTMENT AND DAMAGES OWED TO A DISTRIBUTOR RESPONSIBILITY
20 ORGANIZATION. (1) The department shall implement, administer, and
21 enforce this chapter. The department may adopt rules to implement,
22 administer, and enforce this chapter.
23 (2) By April 1st of each year after a distributor responsibility
24 organization's registration has been approved by the department, the
25 department must:
26 (a) Prepare a workload analysis that, as narrowly, efficiently,
27 and cost-effectively as possible, identifies the annual costs to
28 implement, administer, and enforce this chapter, including rule
29 making, in the next fiscal year;
30 (b) Determine a total annual fee payment to be paid by a
31 distributor responsibility organization to cover, but not exceed, the
32 costs of implementing, administering, and enforcing this chapter
33 identified through the workload analysis; and
34 (c) Send notice to a distributor responsibility organization of
35 the fee amounts due.
36 (3) By June 30th of the fiscal year of approval of a distributor
37 responsibility organization registration and every June 30th
38 thereafter, a distributor responsibility organization registered with
39 the department shall submit an annual payment to the department to
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 1 fund the costs to implement, administer, and enforce this chapter,
2 including rule making, as identified through the workload analysis.
3 (4) In lieu of the annual fee payment required of the distributor
4 responsibility organization, 120 days after a distributor
5 responsibility organization's registration has been approved by the
6 department, a distributor independently carrying out the duties and
7 requirements of a distributor responsibility organization described
8 in this chapter shall pay a registration fee to the department equal
9 to 10 cents per qualifying beverage container until such time as a
10 distributor responsibility organization begins operating a deposit
11 return system.
12 (5) After a distributor responsibility organization begins
13 operating a deposit return system, and after notification of
14 noncompliance from the department and a 60-day cure period, the
15 department shall administratively impose a civil penalty to any
16 distributor who fails to participate in a distributor responsibility
17 organization as specified in section 5 of this act, or fails to
18 otherwise comply with the requirements of this chapter by
19 independently carrying out the duties of a distributor responsibility
20 organization described in this chapter, which must be at least 15
21 cents per beverage in a qualifying beverage container sold or made
22 available for sale by the distributor in the state, or $10,000,
23 whichever is greater.
24 (6) Any distributor who incurs a penalty under this section may
25 appeal the penalty to the pollution control hearings board created in
26 chapter 43.21B RCW.
27 (7) Fees paid by distributors not participating in a distributor
28 responsibility organization under this section must be deposited into
29 the deposit return organization program account created in section 24
30 of this act and used by the department to offset the costs of
31 implementing the requirements of this chapter.
32 (8) Penalties paid by distributors not participating in a
33 distributor responsibility organization under this section must be
34 deposited into the recycling enhancement account created in RCW
35 70A.245.100.
36 (9) Notwithstanding the requirements of this section, a
37 manufacturer distributor producing a de minimis quantity of beverages
38 in refillable qualifying beverage containers may alternatively comply
39 with the requirements of this chapter by operating a small-scale
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 1 refund program approved by the department, as described in section 21
2 of this act.
3 (10) Unless otherwise specified in a distributor responsibility
4 organization's bylaws or in a contract between a distributor
5 responsibility organization and an individual distributor arranging
6 specifically for the collection of qualifying beverage containers
7 sold for the purpose of consumption on premises, after a distributor
8 responsibility organization begins operating a de