By: Van de Putte S.B. No. 338

(In the Senate - Filed December 5, 2008; February 11, 2009, read first time and referred to Committee on Business and Commerce; March 30, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 7, Nays 0; March 30, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 338 By: Van de Putte

A BILL TO BE ENTITLED

AN ACT

relating to requirements for businesses that offer plastic checkout bags to customers; providing civil and administrative penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle B, Title 5, Health and Safety Code, is amended by adding Chapter 376 to read as follows:

CHAPTER 376. PLASTIC CHECKOUT BAGS

Sec. 376.001. DEFINITIONS. In this chapter:

(1) "Business" means a commercial enterprise or establishment, including a sole proprietorship, joint venture, partnership, corporation, or other legally recognizable entity, whether for profit or not for profit that:

(A) is a full-line, self-service retail store with annual sales of $3 million or more and that sells a line of dry grocery, canned goods, or nonfood items and some perishable items; or

(B) has over 10,000 square feet of retail space that generates sales or use tax and has a licensed pharmacy.

(2) "Checkout bag" means a carryout bag that is provided by a store to a customer at the point of sale.

(3) "Commission" means the Texas Commission on Environmental Quality.

(4) "Reusable bag" means a bag with handles that is specifically designed and manufactured for multiple reuse and is made of:

(A) cloth or other machine-washable fabric; or

(B) other durable material suitable for reuse, including plastic that is at least 2.25 millimeters thick.

Sec. 376.002. APPLICABILITY. This chapter does not apply to a business:

(1) with fewer than 51 employees; or

(2) whose principal business activity is providing prepared food for immediate consumption.

Sec. 376.003. BUSINESS REQUIRED TO OFFER REUSABLE BAGS AT REASONABLE PRICE. (a) A business that offers a plastic checkout bag to a customer shall make a reusable bag available for sale at a reasonable price and shall display the reusable bag at or near the point of sale or the entrance to the business.

(b) A business described by Subsection (a) shall provide training to an employee whose position may include offering a plastic checkout bag to a customer. The training shall include efficient bagging techniques, offering the sale or distribution of reusable bags, and other procedures intended to reduce the utilization of plastic checkout bags.

Sec. 376.004. RECYCLING PROGRAM. (a) Except as provided by Subsections (b) and (c), a business that offers a plastic checkout bag to a customer shall establish a plastic checkout bag recycling program that requires the business to:

(1) print or display in a highly visible manner on the outside of a plastic checkout bag provided by the business the words "Please Return to a Participating Business for Recycling" or a similar message to encourage recycling the bag;

(2) place in a visible, easily accessible location at or near the entrance of the business a plastic checkout bag collection bin clearly marked with information stating that the bin is for the purpose of collecting and recycling plastic checkout bags;

(3) maintain on a yearly basis records describing the collection, transport, and recycling of plastic checkout bags under the program established under this section; and

(4) make the records of the program available to the commission on request.

(b) A business with only one opening for both customer entrance and exit may comply with the requirements of Subsection (a)(2) by placing near the entrance one plastic checkout bag collection bin clearly marked with information stating that the bin is for the purpose of collecting and recycling plastic checkout bags.

(c) A business is exempt from establishing a plastic checkout bag recycling program as required by Subsection (a) if:

(1) the business is not located in a municipality or a county that operates a recycling program that accepts plastic checkout bags; and

(2) a private recycling service that accepts plastic checkout bags is not available to the business at a reasonable cost.

(d) A business required to maintain records under this section may collect records in a centralized manner.

Sec. 376.005. PREEMPTION OF LOCAL ORDINANCE. This chapter preempts a local ordinance or rule to the extent of any conflict with this chapter.

Sec. 376.006. RULES. The commission shall adopt rules to implement this chapter.

SECTION 2. Section 7.052, Water Code, is amended by adding Subsection (b-3) to read as follows:

(b-3) The amount of the penalty for a violation of Chapter 376, Health and Safety Code, may not exceed:

(1) $200 for the first violation;

(2) $400 for the second violation, if the violation occurs on or before the first anniversary of the date of the first violation; or

(3) $600 for the third or a subsequent violation, if the violation occurs on or before the first anniversary of the date of the preceding violation.

SECTION 3. Subchapter C, Chapter 7, Water Code, is amended by adding Section 7.076 to read as follows:

Sec. 7.076. AFFIRMATIVE DEFENSE. It is an affirmative defense to the imposition of an administrative penalty for a violation of Chapter 376, Health and Safety Code, if the business corrects the condition causing the violation in a timely manner. The affirmative defense is available for a violation of:

(1) Section 376.004(a)(2) or (b), Health and Safety Code, resulting from the theft of a bin if the business replaces the stolen bin within a reasonable period of time; or

(2) Section 376.003(a), Health and Safety Code, resulting from the temporary lack of reusable bags for sale if the business restocks the supply of reusable bags within a reasonable period of time.

SECTION 4. Sections 7.102 and 7.103, Water Code, are amended to read as follows:

Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to Chapter 37 of this code, Chapter 366, 371, or 372, Health and Safety Code, Subchapter G, Chapter 382, Health and Safety Code, or Chapter 1903, Occupations Code, shall be assessed for each violation a civil penalty not less than $50 nor greater than $5,000 for each day of each violation as the court or jury considers proper. A business that causes, suffers, allows, or permits a violation of a statute, rule, or order relating to Chapter 376, Health and Safety Code, shall be assessed a civil penalty not greater than $100 for each day of each violation as the court or jury considers proper. A person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to any other matter within the commission's jurisdiction to enforce, other than violations of Chapter 11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and Safety Code, shall be assessed for each violation a civil penalty not less than $50 nor greater than $25,000 for each day of each violation as the court or jury considers proper. Each day of a continuing violation is a separate violation.

Sec. 7.103. CONTINUING VIOLATIONS. (a) Except as provided by Subsection (b), if [If] it is shown on a trial of a defendant that the defendant has previously been assessed a civil penalty for a violation of a statute within the commission's jurisdiction or a rule adopted or an order or a permit issued under such a statute within the year before the date on which the violation being tried occurred, the defendant shall be assessed a civil penalty not less than $100 nor greater than $25,000 for each subsequent day and for each subsequent violation.

(b) If it is shown on the trial of a defendant for a violation of Chapter 376, Health and Safety Code, or a rule adopted or an order issued under that chapter that the defendant has previously been assessed a civil penalty for a violation of that chapter or a rule adopted or an order issued under that chapter within the year before the date on which the violation being tried occurred, the defendant shall be assessed a civil penalty not greater than:

(1) $200 if the violation being tried is the defendant's second violation of that chapter or a rule adopted or an order issued under that chapter; or

(2) $500 if the violation being tried is the defendant's third or a subsequent violation of that chapter or a rule adopted or an order issued under that chapter.

(c) Each day of a continuing violation is a separate violation.

SECTION 5. Subchapter D, Chapter 7, Water Code, is amended by adding Section 7.112 to read as follows:

Sec. 7.112. AFFIRMATIVE DEFENSE. It is an affirmative defense to the imposition of a civil penalty for a violation of Chapter 376, Health and Safety Code, if the business corrects the condition causing the violation in a timely manner. The affirmative defense is available for a violation of:

(1) Section 376.004(a)(2) or (b), Health and Safety Code, resulting from the theft of a bin if the business replaces the stolen bin within a reasonable period of time; or

(2) Section 376.003(a), Health and Safety Code, resulting from the temporary lack of reusable bags for sale if the business restocks the supply of reusable bags within a reasonable period of time.

SECTION 6. Section 376.005, Health and Safety Code, as added by this Act, applies only to local ordinances or rules adopted on or after the effective date of this Act.

SECTION 7. This Act takes effect January 1, 2010, except that Section 376.006, Health and Safety Code, as added by this Act, takes effect September 1, 2009.

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