Chapter 7E. Battery Producer Responsibility.
§ 8–771.01. Definitions.
For the purposes of this chapter, the term:
(1) "Battery" means a device that consists of one or more electrically connected electrochemical cells and is designed to store and deliver electric energy.
(2) "Battery-containing product" means a product that contains or is packaged with a rechargeable or primary battery. The term "battery-containing product" does not include:
(A) Covered electronic equipment, as that term is defined in § 8-1041.01(4);
(B) A product in which the only batteries used, at the time of sale, are supplied by a producer that:
(i) Is a member of a battery stewardship organization that has an approved battery stewardship plan pursuant to § 8-771.03(b) and is registered in accordance with § 8-771.04(b); and
(ii) Has provided written certification of that membership to both the producer of the covered battery-containing product and the battery stewardship organization of which the battery producer is a member;
(C) A medical device, as described in 21 U.S.C. § 360c; provided, that the medical device is not designed and marketed for sale or resale principally to consumers for personal use; or
(D) A motor vehicle, part of a motor vehicle, or a component part of a motor vehicle assembled by, or for, a vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle.
(3) "Battery stewardship organization" means an organization registered under § 8-771.04(b).
(4) "Brand" means a trademark, including both a registered and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered battery or covered battery-containing product, and identifies the owner or licensee of the brand.
(5) "Collection rate" means a percentage, by weight, that a battery stewardship organization collects that is calculated by dividing the total weight of primary and rechargeable batteries collected during a calendar year by the average annual weight of primary and rechargeable batteries that were estimated to have been sold in the District by all producers participating in an approved battery stewardship plan during the previous 3 calendar years.
(6) "Covered battery" means a new or unused primary battery or rechargeable battery.
(7) "Covered battery-containing product" means a new or unused battery-containing product.
(8) "DOEE" means the District Department of Energy and Environment.
(9) "Performance goal" means a metric proposed in a battery stewardship plan to measure, on an annual basis, the performance of that plan, taking into consideration technical feasibility and economic practicality, in achieving continuous, meaningful progress to improve the rate of battery recycling in the District. The term "performance goal" includes target collection rates, target recycling efficiencies by battery recycling process, and goals for public awareness, convenience, and accessibility.
(10) "Primary battery" means a non-rechargeable battery that weighs 4.4 pounds (2 kilograms) or less, including alkaline, carbon-zinc, and lithium metal batteries.
(11) "Producer" means, with respect to a covered battery or covered battery-containing product that is sold, offered for sale, or distributed for sale in the District:
(A) A person who manufacturers a covered battery or covered battery-containing product and sells or offers for sale in the District that covered battery or battery-containing product under the person's own brand;
(B) If there is no person to which subparagraph (A) of this paragraph applies or if no contact information for the person is available, the owner or licensee of a brand under which a covered battery or covered battery-containing product is sold, offered for sale, or distributed for sale in the District, whether or not the trademark is registered; or
(C) If there is no person to which subparagraph (A) or (B) of this paragraph applies or if no contact information for the person is available, a person that imports the covered battery or covered battery-containing product into the United States for sale or distribution for sale in the District.
(12) "Rechargeable battery" means a battery that contains one or more voltaic or galvanic cells, electrically connected to produce electric energy, designed to be recharged, that weighs less than 11 pounds (5 kilograms) and has a Watt-hour rating of no more than 300 Watt-hours. The term "rechargeable battery" does not include:
(A) A battery that contains electrolyte as a free liquid, or
(B) A battery that employs lead-acid technology, unless that battery is sealed and contains no free liquid electrolyte.
(13) "Recycling" means the series of activities, including separation, collection, and processing, through which materials are recovered or otherwise diverted from the solid waste stream for use as raw materials or in the manufacture of products other than fuel.
§ 8–771.02. Battery collection.
(a) All producers of covered batteries and covered battery-containing products sold or offered for sale in the District of Columbia, including retail, wholesale, business-to-business, and online sales, shall:
(1) Be a member of a battery stewardship organization pursuant to § 8-771.04; and
(2) As part of a battery stewardship organization, implement a battery collection program as set forth in an approved battery stewardship plan that provides for collection of all primary and rechargeable batteries on a free, regular, convenient, and accessible basis. At the time of collection, there shall be no cost to consumers, retailers, or the District.
(b) On or before January 1, 2023, a battery stewardship organization shall submit a proposed battery stewardship plan to DOEE for review. A battery stewardship organization shall implement the battery stewardship plan no later than 90 days after the plan is approved.
(c) A producer shall not be subject to the requirements in subsection (a) if the producer sells or offers for sale in the District only batteries or battery-containing products that were imported into the District before October 1, 2021.
§ 8–771.03. Battery stewardship plan.
(a) A proposed battery stewardship plan shall include, at a minimum:
(1) A list of producers and brands, including:
(A) All producers participating in the battery stewardship plan and contact information for each of the participating producers;
(B) The brands of batteries and battery-containing products covered by the battery stewardship plan; and
(C) Brands of products meeting the exemption described in § 8-771.01(2)(B) that contain batteries supplied by producers participating in the battery stewardship plan;
(2) An anticipated annual budget for the battery stewardship plan, broken down into administrative, collection, transportation, disposition, and communication costs, along with a description of the financing method used to implement the battery stewardship plan. The budget shall fund, at a minimum, staff responsible for implementing the battery stewardship plan in the District and include funds for fees administered by DOEE. The budget may not include legal fees or costs related to legislative efforts;
(3) Economically and technically feasible performance goals for each of the first 3 years of implementation of the battery stewardship plan that are based on the estimated total weight of primary and rechargeable batteries that have been sold in the District in the previous 3 calendar years by the producers participating in the battery stewardship plan;
(4) A description of how the battery stewardship organization will provide for the convenient collection of primary and rechargeable batteries from consumers as required by § 8-771.02(a). At a minimum, the battery stewardship plan shall provide for a minimum of one collection site per 10,000 people in the District, with a reasonable geographic spread of collection sites across all 8 wards, taking into account accessibility to public transit, and an explanation for the geographic spread; except, that DOEE shall not require the collection site minimum in this paragraph to be met in the first year of implementation of the plan if the plan provides a reasonable timetable for achieving that requirement;
(4A) A description of how the battery stewardship organization will develop strategies, in consultation with DOEE and other relevant parties, for collecting primary and rechargeable batteries in areas and communities that face environmental justice challenges associated with waste management;
(5) A description of how the battery stewardship organization will arrange for components of the discarded batteries to be recycled to the maximum extent economically and technically feasible, in a manner that is environmentally sound and safe for waste management workers;
(6) A list of all key participants in the battery collection program, including:
(A) The names of the collection sites accepting batteries under the plan, including the address and contact information for each collection site;
(B) The name and contact information of a transporter or contractor collecting batteries from the collection sites; and
(C) The name, address, and contact information of the recycling facilities that process the collected batteries;
(7) A description of the education and outreach that will be used to inform consumers about the battery collection program, which must, at a minimum, notify the public that there is a free collection program for all primary and rechargeable batteries as well as the location of the collection sites and how to access the battery collection program; and
(8) Other information as required by the Mayor through rulemaking.
(b)(1)(A) Within 120 days after receipt of a proposed battery stewardship plan or a proposed amendment to a plan, DOEE shall determine whether the plan or amendment complies with the requirements of this section. DOEE shall notify the applicant of the plan or amendment approval or rejection in writing. If DOEE rejects a proposed plan or amendment, DOEE shall include the reasons for rejecting the plan or amendment.
(B) An applicant whose plan or amendment to a plan is rejected by DOEE shall submit a revised plan or amendment within 45 days after receiving the notice of rejection. DOEE shall review the revised plan or amendment, issue an order approving or disapproving the revised plan or amendment, and notify the applicant of the decision within 45 days after receipt of the revised plan or amendment. An applicant whose revised plan or amendment is rejected by DOEE may appeal the decision to the Office of Administrative Hearings, pursuant to Chapter 18 of Title 2.
(C) In the event of an appeal of an initial plan's disapproval, obligations of the battery stewardship organization and producers under this chapter may be stayed in their entirety until final disposition of the appeal. In the event of an appeal of an amended plan's disapproval, obligations of the battery stewardship organization and producers, including collection and remittance of fees to the battery stewardship organization, under this chapter shall remain in accordance with the previously approved plan until final disposition of the appeal.
(2) DOEE shall post all proposed battery stewardship plans, and any proposed amendments pursuant to subsection (c) of this section or § 8-771.05(b), on its website for 30 days after the date the application is submitted and provide an opportunity for public review and comment.
(b-1) The battery stewardship organization may propose or DOEE may require an amendment to a battery stewardship plan to improve program functioning or if a change in District law or regulation necessitates a revision in the plan.
(c) Every 2 years following approval of the battery stewardship plan, the battery stewardship organization shall submit amended performance goals to DOEE for approval, based on the implementation of the program up until that point and current economic and technical feasibility. DOEE may require a battery stewardship organization to make other revisions to the plan at this time through a plan amendment if the performance goals under the battery stewardship plan are not being met after 2 years of plan implementation.
(d) Any battery collection site designated under a plan shall:
(1) Complete a safety tutorial on how to safely manage batteries, to be provided by the battery stewardship organization implementing the stewardship plan;
(2) Prominently display the availability of drop-off at their location; and
(3) Provide for the acceptance of up to 100 batteries per visit, and accept all primary and rechargeable batteries regardless of type or brand.
§ 8–771.04. Battery stewardship organization.
(a) A battery stewardship organization shall:
(1) Develop and submit a battery stewardship plan that meets the requirements of § 8-771.03;
(2) Maintain a public, regularly-updated website that lists all producers and producers' brands covered by the battery stewardship organization's approved battery stewardship plan;
(3) Provide sellers, government agencies, nonprofit organizations, and all collection sites with educational materials describing collection opportunities for batteries under the battery stewardship plan, including any signage required by § 8-771.03(d)(2); and
(4) Cover all costs for battery collection, transportation, processing, education, administration, recycling, and end-of-life handling, with such handling being in accordance with practices approved by DOEE.
(b) Beginning January 1, 2022, and annually thereafter, a battery stewardship organization shall file a registration form with DOEE. The registration form shall require the following information:
(1) A list of the producers participating in the battery stewardship organization;
(2) For each participating producer, the name, address, and contact information of a person responsible for ensuring the participating producer's compliance with this chapter;
(3) A description of how the battery stewardship organization proposes to meet the requirements of subsection (a) of this section, including any reasonable requirements for participation in the battery stewardship organization; and
(4) The name, address, and contact information of a person for a nonmember producer to contact on how to become a member of the battery stewardship organization.
(c) DOEE may revoke the registration of a battery stewardship organization that fails to implement a material provision of an approved battery stewardship plan. If a registration is revoked by DOEE, a battery stewardship organization may appeal the revocation to the Office of Administrative Hearings, pursuant to Chapter 18 of Title 2.
§ 8–771.05. Annual reporting.
(a) On or before June 1, 2024, and annually thereafter, a battery stewardship organization shall submit a report to DOEE describing activities carried out under the battery stewardship plan during the previous calendar year. The report shall include, at a minimum:
(1) Any updated contact information for the battery stewardship organization, all participants in the organization, and a list of the brands of batteries and battery-containing products for which the battery stewardship organization is responsible;
(2) The weight of the batteries collected by the battery stewardship organization, reported to the extent feasible by:
(A) Collection site; and
(B) Chemistry type of primary and rechargeable batteries;
(3) The estimated total sales, by weight, of primary and rechargeable batteries and primary and rechargeable batteries contained in or with battery-containing products sold in the District by the producer or producers participating in the battery stewardship organization, to the extent feasible for each of the previous 3 calendar years;
(4) A description of progress made toward the program performance goals under § 8-771.03(a)(3), including:
(A) A summary of how program implementation compared to performance goals;
(B) An explanation of why performance goals were not met, if applicable; and
(C) An evaluation of the effectiveness of methods and processes used to achieve the performance goals and how methods and processes can be improved;
(5) A description of the collection sites, including:
(A) The addresses and contact information, including website links, for all collection sites;
(B) A map indicating the location of all collection sites in the District; and
(C) An assessment of collection convenience and accessibility;
(6) A description of the educational materials that support implementation of the battery stewardship plan, including examples, as well as an evaluation of the success of the education and outreach effort and how it can be improved;
(7) A description of the manner in which the collected batteries were sorted, consolidated, managed, and processed, including:
(A) The manner in which the collected batteries were recycled, including weight and chemistry of material recycled;
(B) What facilities processed the batteries, including a summary of any violations of environmental laws and regulations over the previous 3 years at each facility; and
(C) A discussion of recycling efficiency rates; and
(8) The costs of implementation of the battery stewardship plan, including the costs of collection, recycling, education, and outreach, and an anticipated budget for the next calendar year.
(b) In the event a battery stewardship organization does not meet a performance goal, the battery stewardship organization shall, in coordination with DOEE, amend its battery stewardship plan, following the requirements set forth in § 8-771.03, to conduct more outreach, provide additional education materials, or improve collection accessibility as needed.
(c) Four years after the date the initial battery stewardship plan is approved, a battery stewardship organization shall hire an independent third party to conduct an assessment of the battery stewardship plan and implementation of the plan. The assessment shall examine the effectiveness of the battery stewardship plan in collecting and recycling batteries and compare the cost-effectiveness of the plan to that of collection plans or programs for batteries in other jurisdictions. The results of the assessment and recommendations to improve the battery stewardship plan shall be submitted to DOEE as part of the annual report required under subsection (a) of this section.
§ 8–771.06. DOEE responsibilities.
(a) DOEE shall maintain a website that includes:
(1) A copy of all approved battery stewardship plans;
(2) The names of producers participating in approved battery stewardship plans;
(3) A list of all approved brands covered by a battery stewardship plan filed with DOEE; and
(4) A copy of all annual reports submitted under § 8-771.05.
(b) A battery stewardship organization implementing an approved battery stewardship plan in compliance with the requirements of this chapter may petition DOEE alleging, with evidence, that a producer is not complying with the requirements of this chapter or a battery stewardship plan. DOEE shall investigate and provide a determination to the petitioner within 45 days after receipt of a petition. DOEE shall take enforcement action if noncompliance is demonstrated.
(c) Every 5 years, DOEE shall report on the status of the battery recycling program and provide this report to the Council and on its website. The report shall include:
(1) The amount, by weight, of batteries collected under approved battery stewardship plans;
(2) The percentage of collected batteries not covered by or attributable to a producer participating in an approved battery stewardship organization; and
(3) Recommendations for any amendments to this chapter.
(d) In addition to the requirements of subsection (c) of this section, DOEE's first report under subsection (c) of this section shall include:
(1) An evaluation of whether an environmental handling fee, meaning an amount added at the point of sale to the purchase price of a covered battery or battery-containing product, would promote and support increased battery recycling in the District; and
(2) An assessment of how rechargeable batteries with a watt-hour rating above 300 watt-hours could be incorporated into the battery collection program under this chapter.
(e) DOEE shall assist in educational and outreach efforts to inform the public about the battery collection opportunities in the District.
§ 8–771.07. Cause of action.
(a) A battery stewardship organization implementing an approved battery stewardship plan in compliance with the requirements of this chapter may bring a civil action against a producer for damages when:
(1) The plaintiff incurs more than $1,000 in actual costs collecting, handling, recycling, and properly disposing of the defendant producer's batteries sold or offered for sale in the District; and
(2) The defendant producer is not in compliance with the requirements of § 8-771.02(a).
(b) DOEE shall not be a necessary party to or be required to provide assistance or otherwise participate in a civil action authorized under this section solely due to its regulatory requirements under this chapter, unless subject to subpoena before a court of jurisdiction.
(c) A battery stewardship organization may file a civil action under this section regardless of whether it has petitioned DOEE under § 8-771.06(b).
(d) For the purposes of this section, the term "damages" means:
(1) The actual costs a plaintiff battery stewardship organization incurs in collecting, handling, recycling, or properly disposing of batteries reasonably identified as having originated from another battery producer or battery stewardship organization, and
(2) The attorneys' fees and costs associated with bringing the civil action.
§ 8–771.08. Immunity from liability; confidential information.
(a) Notwithstanding the provisions of Chapter 45 of Title 28, a producer and a battery stewardship organization may negotiate, enter into agreements with, share the burdens of their operation with, and conduct business with each other in accordance with this chapter in ways that may affect competition. No producer or battery stewardship organization shall be prosecuted, held liable, or subject to penalties or damages under Chapter 45 of Title 28 for actions conducted in accordance with this chapter, including:
(1) The creation, implementation, or management of a battery stewardship organization and any battery stewardship plan regardless of whether it is submitted, denied, or approved;
(2) The cost and structure of a battery stewardship plan;
(3) The types or quantities of batteries being recycled or otherwise managed pursuant to this chapter; and
(4) The establishment, administration, or disbursement of environmental handling fees or fee schedules, if applicable, to be collected at the point-of-sale for covered batteries and covered battery-containing products.
(b) Financial, production, and sales data reported to the Mayor by a battery stewardship organization shall not be subject to disclosure under subchapter II of Chapter 5 of Title 2 or any other law or regulation; except, that the Mayor may release a summary form of the data that does not disclose individual producer information.
§ 8–771.09. Disposal ban.
(a) Beginning January 1, 2022, no producer shall dispose of primary or rechargeable batteries in the District except through battery recycling programs or other methods approved by the Mayor.
(b) Beginning August 1, 2023, no person in the District shall knowingly dispose of primary or rechargeable batteries in the District except through battery recycling programs or other methods approved by the Mayor.
§ 8–771.10. Rules, enforcement, and fees.
(a) The Mayor, pursuant to subchapter I of Chapter 5 of Title 2, may issue rules to implement the provisions of this chapter.
(b)(1) The Mayor shall charge an annual administrative fee to producers or battery stewardship organizations implementing approved battery stewardship plans to cover the District's oversight costs, including planning, plan review, annual oversight, enforcement, and other directly related tasks.
(2) The Mayor may impose civil fines and penalties for violations of the provisions of this chapter or any rules issued pursuant to this chapter, pursuant to Chapter 18 of Title 2 ("Civil Infractions Act"). Enforcement and adjudication of an infraction shall be pursuant to the Civil Infractions Act.
(3) Fees, penalties, and fines collected under this chapter shall be deposited in the Product Stewardship Fund established by § 1-325.381.
(c)(1) For the purpose of enforcing the provisions of this chapter, or any rule issued pursuant to this chapter, the Mayor may, upon 48 hours' written notice and the presentation of appropriate credentials to the owner, operator, or agent in charge, enter upon any public or private property in a reasonable and lawful manner during normal business hours for the purpose of inspection and observation.
(2) If denied access to any place while carrying out the activities described paragraph (1) of this subsection, the Mayor may apply to a court of competent jurisdiction for a search warrant.
