In Tallahassee, Fla., they're calling it ``Die Hardest: The Tax With A Vengeance.'' Florida's controversial 2 cent-per-container advance disposal fee will not be assessed after Oct. 1, but 105 plastic packaging distributors and manufacturers granted a total of 173 exemptions to the law could be liable for millions of dollars of fee payments if they fail to meet the law's requirements anyway - even past that date.
``Even though the law met with an early demise, a company is liable for the fees that weren't collected on the product during the time the fee was imposed,'' said Lisa Echeverri, a lawyer with the Florida Department of Revenue. She said the state has a duty to impose the odd penalty because ``people who had an exemption had a competitive advantage. Those who did not or seek exemption had to pay the one penny up front, or since January, 2 cents per container not exempted from the law.''
Florida started collecting a penny per disposable container in mid-1993. Although projected to raise $100 million or better, the fee brought only $45 million in its first year - in part because of the large number of exemptions. Last year the legislature upped the fee to 2 cents, effective this past January.
The fee, the nation's only statewide advance disposal law, will fade into the sunset two years after its 1993 introduction, following failure of the Florida Legislature earlier this month to extend the tax another two years. But the law establishing the fee is fighting for survival.
The catch is in the 1993 amendments to the original 1988 law. One amendment extended from July 1, 1994, to June 30, 1996, the period under which firms must verify at least a 25 percent recycling level in order to be eligible for an exemption from the fee. Yet even though the fee won't be imposed from October 1995 through July 1996, firms with exemptions must prove their right to have them.
Washington-based American Plastics Council is aware of the situation.
``We believe it will be worked out administratively, and we are monitoring the issues,'' said Rudy Underwood, director of governmental affairs for the 14-state APC Southern region.
Terrence A. Bedell, Clorox Co.'s environmental packaging manager, said the Oakland, Calif., company is ``prepared to document how [it has] met [Florida's] requirements,'' adding, ``I think they'd be hard pressed to enforce it.''
Clorox's Florida exemption affects between 5 million and 6 million pounds of plastic containers annually, Bedell said.
About 391 million plastic carbonated drink containers sold in Florida between July 1, 1994, and June 30, 1996, could also be affected by the legal quirk.
Russ Martin, a manager in the Florida Department of Environmental Protection and the person responsible for interpreting the ADF law, said he plans to enforce the letter of the law, but enforcement plans are vague.
Companies do have an out. The law allows the state or a firm to back down from an exemption with 30 days' notice. At least one holder, Procter & Gamble Co., plans to ask Florida to drop its exemption to remove any chance of later enforcement, said Tom Rattray, P&G associate director of environmental quality in Cincinnati.