Chapter 548 Oregon Laws 2011

AN ACT

SB 82

Relating to recycling of electronic devices; creating new provisions; amending ORS 459.247, 459A.305, 459A.310, 459A.320, 459A.335 and 459A.340; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2011 Act is added to and made a part of ORS 459A.310 to 459A.335.

SECTION 2. (1) A manufacturer program or a state contractor program that collects, transports and recycles covered electronic devices in an amount that exceeds the program’s return share by weight for a calendar year may claim recycling credits for use in succeeding calendar years as follows:

(a) A program may claim one recycling credit for each pound of covered electronic devices collected, transported and recycled in excess of the program’s return share by weight for a calendar year;

(b) A program may retain all or part of its recycling credits or may sell any portion of its recycling credits to another program at a price negotiated by the parties;

(c) A manufacturer program may use recycling credits earned or purchased to meet up to 15 percent of its return share by weight during any calendar year. One recycling credit may be used to meet one pound of return share by weight; and

(d) By rule, the Environmental Quality Commission may change the percentage of the return share by weight specified in paragraph (c) of this subsection.

(2) A manufacturer program must include the following information on recycling credits in its annual report to the Department of Environmental Quality required by ORS 459A.320 (3)(e):

(a) The number of recycling credits the manufacturer program possessed at the beginning of the previous calendar year.

(b) The total number of recycling credits the manufacturer program purchased and sold during the previous calendar year, the names of the programs from which recycling credits were purchased or to which recycling credits were sold and the number of recycling credits purchased from or sold to each program.

(c) The number of recycling credits the manufacturer program used to meet its return share by weight for the previous calendar year.

(d) The number of recycling credits the manufacturer program is claiming from the previous calendar year. This number is the difference between the total weight of covered electronic devices that the manufacturer program collected, transported and recycled during the previous calendar year and the program’s return share by weight for the previous calendar year.

SECTION 3. ORS 459A.305 is amended to read:

459A.305. As used in ORS 459A.305 to 459A.355:

(1) “Brand” means a name, symbols, words or marks that identify a covered electronic device, rather than any of its components, and attribute the device to the owner of the brand as the manufacturer.

(2) “Collector” means an entity that collects covered electronic devices as part of a manufacturer program or the state contractor program.

(3)(a) “Covered electronic device” means:

(A) A computer monitor of any type having a viewable area greater than four inches measured diagonally;

(B) A desktop computer or portable computer; or

(b) “Covered electronic device” does not include:

(A) Any part of a motor vehicle;

(B) Any part of a larger piece of equipment designed and intended for use in an industrial, commercial or medical setting, such as diagnostic, monitoring or control equipment;

(C) Telephones or personal digital assistants of any type unless the telephone or personal digital assistant contains a viewable area greater than four inches measured diagonally; or

(D) Any part of a clothes washer, clothes dryer, refrigerator, freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier or air purifier.

(4) “Covered entity” means any Oregon household, a business that employs 10 or fewer individuals, a not-for-profit organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code that employs 10 or fewer individuals, or any person giving seven or fewer covered electronic devices to a collector at any one time.

(5) “Environmentally sound management practices” means practices that comply with all applicable laws, including but not limited to adequate record keeping, tracking the fate of recycled materials, performance audits and inspections, provisions for reuse and refurbishment, compliance with worker health and safety requirements, maintaining liability insurance and financial assurances and practices that may be adopted by rule by the Environmental Quality Commission.

(6)(a) “Manufacturer” means any person, irrespective of the selling technique used, including by means of remote sale:

(A) That manufactures covered electronic devices under a brand that it owns or is licensed to use;

(B) That sells covered electronic devices manufactured by others under a brand that the seller owns;

(D) That manufactures covered electronic devices to which it affixes a brand that it does not own; or

(E) On whose account covered electronic devices manufactured outside the United States are imported into the United States. This subparagraph does not apply if, at the time the covered electronic devices are imported into the United States, another person is registered as the manufacturer of the brand of the covered electronic devices.

(b) “Manufacturer” does not include a person with a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licenser.

(7) “Manufacturer program” means a statewide plan for collecting, transporting and recycling covered electronic devices that is provided by a single manufacturer or group of manufacturers pursuant to ORS 459A.320.

(8) “Orphan device” means a covered electronic device for which no manufacturer can be identified.

(9) “Person” means the United States, the state or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or other legal entity.

(10) “Portable computer” means any of the following that has a viewable area greater than four inches measured diagonally and that can be carried as one unit by an individual:

(a) A laptop computer;

(b) A notebook computer; or

(11) “Premium service” means services such as at-location system upgrade services and at-home pickup services, including curbside pickup service.

(12)(a) “Recycling” means:

(A) Processing through disassembling, dismantling, shredding, transforming or remanufacturing covered electronic devices, components and by-products into usable or marketable raw materials or products in a manner such that the original products may lose their identity; or

(B) Smelting materials from components removed from covered electronic devices to recover metals for reuse in conformance with applicable laws and rules.

(b) “Recycling” does not include:

(A) Landfill disposal or incineration of covered electronic devices; or

(B) Energy recovery or energy generation by means of combusting covered electronic devices, components and by-products with or without other waste.

(13) “Recycling credit” means a credit granted to a manufacturer program or a state contractor program for the collection, transport and recycling of covered electronic devices in an amount that exceeds the program’s return share by weight for a calendar year.

[(13)] (14) “Retailer” means a person that offers new covered electronic devices for sale at retail through any means, including but not limited to remote offerings such as sales outlets, catalogs or the Internet.

[(14)] (15) “Return share” means the minimum percentage of covered electronic devices that an individual manufacturer is responsible for collecting, transporting and recycling.

[(15)] (16) “Return share by weight” means the minimum total weight of covered electronic devices that an individual manufacturer is responsible for collecting, transporting and recycling.

[(16)(a)] (17)(a) “Sell” or “sale” means any transfer of title for consideration, including but not limited to remote sales conducted through sales outlets, catalogs or the Internet, or any other similar electronic means.

(b) “Sell” or “sale” does not include leases.

[(17)] (18) “State contractor program” means a statewide program for collecting, transporting and recycling covered electronic devices that is provided by the Department of Environmental Quality for manufacturers who pay a recycling fee to the department pursuant to ORS 459A.325.

SECTION 4. ORS 459A.305, as amended by section 3 of this 2011 Act, is amended to read:

459A.305. As used in ORS 459A.305 to 459A.355:

(2) “Collector” means an entity that collects covered electronic devices as part of a manufacturer program or the state contractor program.

(3) “Computer peripheral” means:

(a) A keyboard or mouse sold exclusively for external use with a computer as a wireless or corded device that provides input into, or output from, a computer; or

(b) Cords used with a keyboard or mouse described in paragraph (a) of this subsection.

[(3)(a)] (4)(a) “Covered electronic device” means:

(A) A computer monitor of any type having a viewable area greater than four inches measured diagonally;

(B) A desktop computer or portable computer; [or]

(D) A computer peripheral; or

(E) A printer.

(b) “Covered electronic device” does not include:

(A) Any part of a motor vehicle;

(B) Any part of a larger piece of equipment designed and intended for use in an industrial, commercial or medical setting, such as diagnostic, monitoring or control equipment;

(C) Telephones or personal digital assistants of any type unless the telephone or personal digital assistant contains a viewable area greater than four inches measured diagonally; or

(D) Any part of a clothes washer, clothes dryer, refrigerator, freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier or air purifier.

[(4)] (5) “Covered entity” means any Oregon household, a business that employs 10 or fewer individuals, a not-for-profit organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code that employs 10 or fewer individuals, or any person giving seven or fewer covered electronic devices to a collector at any one time.

[(5)] (6) “Environmentally sound management practices” means practices that comply with all applicable laws, including but not limited to adequate record keeping, tracking the fate of recycled materials, performance audits and inspections, provisions for reuse and refurbishment, compliance with worker health and safety requirements, maintaining liability insurance and financial assurances and practices that may be adopted by rule by the Environmental Quality Commission.

[(6)(a)] (7)(a) “Manufacturer” means any person, irrespective of the selling technique used, including by means of remote sale:

(A) That manufactures covered electronic devices under a brand that it owns or is licensed to use;

(B) That sells covered electronic devices manufactured by others under a brand that the seller owns;

(D) That manufactures covered electronic devices to which it affixes a brand that it does not own; or

(b) “Manufacturer” does not include a person:

(A) With a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licenser.

(B) That manufactures only computer peripherals and no other covered electronic devices.

[(7)] (8) “Manufacturer program” means a statewide plan for collecting, transporting and recycling covered electronic devices that is provided by a single manufacturer or group of manufacturers pursuant to ORS 459A.320.

[(8)] (9) “Orphan device” means a covered electronic device for which no manufacturer can be identified.

[(9)] (10) “Person” means the United States, the state or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or other legal entity.

[(10)] (11) “Portable computer” means any of the following that has a viewable area greater than four inches measured diagonally and that can be carried as one unit by an individual:

(a) A laptop computer;

(b) A notebook computer; or

[(11)] (12) “Premium service” means services such as at-location system upgrade services and at-home pickup services, including curbside pickup service.

(13)(a) “Printer” means a device that:

(A) Is used to make reproductions, or is multifunctional and performs one or more operations such as scanning or faxing in addition to making reproductions;

(B) Is designed to be placed on a desk or other work surface and may include an optional floor stand; and

(C) Uses print technology such as laser, electrographic, ink jet, dot matrix, thermal or digital sublimation.

(b) “Printer” does not include a device used to make reproductions that:

(A) Is floor-standing;

(B) Is a point of sale receipt printer;

(C) Is also a calculator;

(D) Can also make labels; or

(E) Is embedded in something other than a covered electronic device.

[(12)(a)] (14)(a) “Recycling” means:

(B) Smelting materials from components removed from covered electronic devices to recover metals for reuse in conformance with applicable laws and rules.

(b) “Recycling” does not include:

(A) Landfill disposal or incineration of covered electronic devices; or

(B) Energy recovery or energy generation by means of combusting covered electronic devices, components and by-products with or without other waste.

[(13)] (15) “Recycling credit” means a credit granted to a manufacturer program or a state contractor program for the collection, transport and recycling of covered electronic devices in an amount that exceeds the program’s return share by weight for a calendar year.

[(14)] (16) “Retailer” means a person that offers new covered electronic devices for sale at retail through any means, including but not limited to remote offerings such as sales outlets, catalogs or the Internet.

[(15)] (17) “Return share” means the minimum percentage of covered electronic devices that an individual manufacturer is responsible for collecting, transporting and recycling.

[(16)] (18) “Return share by weight” means the minimum total weight of covered electronic devices that an individual manufacturer is responsible for collecting, transporting and recycling.

[(17)(a)] (19)(a) “Sell” or “sale” means any transfer of title for consideration, including but not limited to remote sales conducted through sales outlets, catalogs or the Internet, or any other similar electronic means.

(b) “Sell” or “sale” does not include leases.

[(18)] (20) “State contractor program” means a statewide program for collecting, transporting and recycling covered electronic devices that is provided by the Department of Environmental Quality for manufacturers who pay a recycling fee to the department pursuant to ORS 459A.325.

SECTION 5. ORS 459A.320 is amended to read:

459A.320. (1) A manufacturer choosing to implement a manufacturer program shall submit a plan to the Department of Environmental Quality at the time of payment of the annual registration fee required under ORS 459A.315.

(2) The manufacturer’s plan must describe how the manufacturer will:

(a) Finance, manage and conduct a statewide program to collect covered electronic devices from covered entities in this state.

(b) Provide for environmentally sound management practices to collect, transport and recycle covered electronic devices.

(d) Include convenient service in every county in this state and at least one collection site for any city with a population of at least 10,000. A collection site for a county may be the same as a collection site for a city in the county. Collection sites shall be staffed and open to the public at a frequency adequate to meet the needs of the area being served. A program may provide collection service jointly with another program.

(3) A manufacturer choosing to implement a manufacturer program shall:

(a) Meet or exceed the requirements for collection sites described in subsection (2) of this section.

(b) Provide for collection, transportation and recycling of covered electronic devices for covered entities free of charge, except that a manufacturer that provides premium service for a covered entity may charge for the additional cost of that premium service.

(d) Conduct a statistically significant sampling or actual count of the covered electronic devices collected and recycled by the manufacturer each calendar year using a methodology approved by the department. The manufacturer shall report the results of the sampling or count to the department, in accordance with the approved sampling methodology or as directed by the department, no later than March 1 of the following calendar year. The report must include:

(A) A list of all brands identified during the sampling or count by the manufacturer;

(B) The weight of covered electronic devices identified for each brand during the sampling or count; and

(C) The total weight of covered electronic devices, including orphan devices, collected from covered entities in the state by the manufacturer during the previous calendar year.

(e) By March 1 of each year, provide a report to the department that details how the plan required under this section was implemented during the previous calendar year.

(4) A group of manufacturers may choose to implement a manufacturer program as one entity, if in doing so the manufacturers meet the sum of their individual return shares by weight under ORS 459A.340 (3) and that sum is at least five percent.

(5) By July 1 of each year, a manufacturer that does not meet its return share by weight for the previous calendar year shall pay the department for the amount not achieved at a rate determined by the department to be equivalent to the amount the manufacturer would have paid, plus 10 percent, to be part of the state contractor program under ORS 459A.340.

(6) A manufacturer participating in the state contractor program under ORS 459A.340 shall notify the department at the time of its registration each year.

(7) Except as provided in subsection (4) of this section, a manufacturer with less than a five percent return share is required to participate in the state contractor program under ORS 459A.340.

SECTION 6. ORS 459A.320, as amended by section 5 of this 2011 Act, is amended to read:

(2) The manufacturer’s plan must describe how the manufacturer will:

(a) Finance, manage and conduct a statewide program to collect covered electronic devices from covered entities in this state.

(b) Provide for environmentally sound management practices to collect, transport and recycle covered electronic devices.

(3) A manufacturer choosing to implement a manufacturer program shall:

(a) Meet or exceed the requirements for collection sites described in subsection (2) of this section.

(d) Conduct a statistically significant sampling or actual count of the covered electronic devices, except for computer peripherals, collected and recycled by the manufacturer each calendar year using a methodology approved by the department. The manufacturer shall report the results of the sampling or count to the department, in accordance with the approved sampling methodology or as directed by the department, no later than March 1 of the following calendar year. The report must include:

(A) A list of all brands identified during the sampling or count by the manufacturer;

(B) The weight of covered electronic devices identified for each brand during the sampling or count; and

(C) The total weight of covered electronic devices, including orphan devices and computer peripherals, collected from covered entities in the state by the manufacturer during the previous calendar year.

(e) By March 1 of each year, provide a report to the department that details how the plan required under this section was implemented during the previous calendar year.

(6) A manufacturer participating in the state contractor program under ORS 459A.340 shall notify the department at the time of its registration each year.

(7) Except as provided in subsection (4) of this section, a manufacturer with less than a five percent return share is required to participate in the state contractor program under ORS 459A.340.

SECTION 7. ORS 459A.335 is amended to read:

459A.335. (1) A retailer may not sell or offer for sale any covered electronic device, except for computer peripherals, in or for delivery into this state unless:

(a) The covered electronic device is labeled with a brand and the label is permanently affixed and readily visible;

(b) The brand is included on the list posted by the Department of Environmental Quality pursuant to ORS 459A.340 (1); and

(c) The list posted by the department pursuant to ORS 459A.340 (1) specifies that the manufacturer is in compliance with the requirements of ORS 459A.305 to 459A.355.

(2) A retailer shall provide to a consumer at the time of the sale of a covered electronic device information from the department’s website that provides details about where and how a consumer can recycle covered electronic devices in Oregon. The information shall be provided in printed form for in-store sales and in printable form for Internet sales and other sales where the Internet is involved.

SECTION 8. ORS 459A.340, as amended by section 1, chapter 38, Oregon Laws 2010, is amended to read:

459A.340. The Department of Environmental Quality shall:

(1) Maintain and make available on its website the following lists, which must be updated by the first day of each month:

(a) A list of registered manufacturers and their brands;

(b) A list of brands for which no manufacturer has registered; and

(2) Review and approve manufacturer plans that comply with ORS 459A.320 and are submitted annually by manufacturers choosing to implement a manufacturer program for recycling covered electronic devices.

(3)(a) Determine the return share and return share by weight for each calendar year for each manufacturer. The return share shall be determined by dividing the total weight of covered electronic devices of that manufacturer’s brands by the total weight of covered electronic devices for all manufacturers’ brands. The return share by weight shall be determined by multiplying the return share for each such manufacturer by the total weight in pounds of covered electronic devices, including orphan devices [, collected from covered entities the previous calendar year] and computer peripherals, as determined by the department.

(b) For each manufacturer except those specified in paragraph (c) of this subsection, determine the return share and return share by weight for calendar years through 2011 based on the best available public return share data and public weight data from within the United States for covered electronic devices from covered entities. For subsequent years, the return share of covered electronic devices for each manufacturer shall be based on the most recent annual sampling or count of covered electronic devices. For subsequent years, the total weight in pounds of covered electronic devices shall be based on the total weight of covered electronic devices, including orphan devices and computer peripherals, as[,] determined by the department.

(c) For each manufacturer whose manufacture of covered electronic devices as defined in ORS 459A.305 [(3)(a)(C)] (4)(a)(C) exceeds its manufacture of covered electronic devices as defined in ORS 459A.305 [(3)(a)(A) and (B)] (4)(a)(A) and (B), determine the return share and return share by weight based on the total return share and return share by weight determined under paragraph (a) of this subsection for all manufacturers described in this paragraph, allocated according to each manufacturer’s percentage of the total number of covered electronic devices described in ORS 459A.305 [(3)(a)(C)] (4)(a)(C) sold in this state the previous calendar year. The department:

(A) May use national market data, retail and manufacturer data, consumer research and other data to determine the percentages described in this paragraph. The department may also require that manufacturers submit sales or other data regarding the number of the manufacturer’s covered electronic devices sold in Oregon. Manufacturers must submit any data required by the department in the format requested by the department.

(B) May assess a surcharge to the annual registration fee for manufacturers described in this paragraph if the department determines that the surcharge is necessary to cover any additional costs to the department in making the determinations described in this paragraph. The department must allocate any assessed surcharge to the manufacturer as a percentage of the manufacturer’s return share determined pursuant to this paragraph.

(d) By May 1 of each year, provide to each manufacturer that had a return share determined under this section its return share and its return share by weight for the following year.

(4) Establish a state contractor program for the collection, transportation and recycling of covered electronic devices from covered entities in this state. The state contractor program shall:

(a) To the extent practicable, use existing local collection, transportation and recycling infrastructure;

(b) Utilize environmentally sound management practices to collect, transport and recycle covered electronic devices;

(c) Provide for covered entities, free of charge, convenient and available collection services and sites for covered electronic devices in both rural and urban areas;

(d) Advertise and promote collection opportunities statewide and on a regular basis; and

(e) Conduct a statistically significant sampling or actual count of the covered electronic devices, except for computer peripherals, collected and recycled by the state contractor program during each calendar year using a methodology approved by the department and prepare a report no later than March 1 of the following calendar year that includes:

(A) A list of all brands identified during the sampling or count;

(B) The weight of covered electronic devices identified for each brand during the sampling or count; and

(C) The total weight of covered electronic devices, including orphan devices and computer peripherals, collected from covered entities in the state by the state contractor program during the previous calendar year.

(5) Determine a manufacturer’s annual registration fee for purposes of ORS 459A.315 (2) using national market data prorated for Oregon based on statewide population.

(6) Determine the recycling fee to be paid under ORS 459A.325 by each manufacturer that participates in the state contractor program established pursuant to subsection (4) of this section. The department shall determine the recycling fees based on the manufacturer’s annual return share and return share by weight as determined under subsection (3) of this section.

(7) Maintain on its website information on collection opportunities for covered electronic devices, including collection site locations and hours. The information must be made available in a printable format for retailers.

(8) Report biennially to the Legislative Assembly on the operation of the statewide system for collection, transportation and recycling of covered electronic devices.

SECTION 9. ORS 459A.310 is amended to read:

459A.310. (1) ORS 459A.305 to 459A.355 apply to all manufacturers engaging in the activities set forth in ORS 459A.305 [(6)] (7) before, on or after June 7, 2007.

(2) ORS 459A.305 to 459A.355 do not apply to reused or refurbished covered electronic devices.

(3) A manufacturer may not sell or offer for sale any covered electronic device, except for computer peripherals, in or for delivery in this state unless:

(a) The covered electronic device is labeled with a brand and the label is permanently affixed and readily visible; and

(b) The brand is included in the plan that is filed with the Department of Environmental Quality pursuant to ORS 459A.320.

SECTION 10. ORS 459.247 is amended to read:

459.247. (1) No person shall dispose of and no disposal site operator shall knowingly accept for disposal the following types of solid waste at a solid waste disposal site:

(a) Discarded or abandoned vehicles;

(b) Discarded large home or industrial appliances;

(d) Tires;

(e) Lead-acid batteries; or

(f) Covered electronic devices.

(2) As used in this section:

(a) “Covered electronic device” has the meaning given that term in ORS 459A.305, except that “covered electronic device” does not include a computer peripheral or a printer as those items are defined in ORS 459A.305; and

(b) “Used oil” has the meaning given that term in ORS 459A.555.

(3) Nothing in this section shall prohibit a disposal site operator from accepting and storing, for purposes of recycling or recovering, any of the types of solid waste listed in subsection (1) of this section.

(4) The Environmental Quality Commission may postpone the prohibition under subsection (1)(f) of this section in any area of this state where the commission determines there is an inadequate system for the collection, transportation and recycling of covered electronic devices.

(5)(a) Each disposal site operator shall establish and implement, in accordance with any permit requirements established by the Department of Environmental Quality, a program reasonably designed to prevent acceptance of covered electronic devices for disposal. If an operator operates the disposal site in conformity with the program, the operator is presumed to have complied with the provisions of this section that prohibit knowingly accepting covered electronic devices for disposal.

(b) This section does not prevent the disposal site operator from accepting and storing, for purposes of recycling, reusing or refurbishing, covered electronic devices.

SECTION 11. (1) Section 2 of this 2011 Act and the amendments to ORS 459A.305 and 459A.320 by sections 3 and 5 of this 2011 Act apply to calendar year 2011 and each calendar year thereafter.

(2)(a) Except as provided in paragraph (b) of this subsection, the amendments to ORS 459.247, 459A.305, 459A.310, 459A.320, 459A.335 and 459A.340 by sections 4 and 6 to 10 of this 2011 Act become operative on January 1, 2015, and apply to calendar year 2015 and each calendar year thereafter.

(b) Before the operative date specified in paragraph (a) of this subsection, the Environmental Quality Commission may adopt rules or take any other action, and the Department of Environmental of Quality may take any action, including but not limited to requiring submission of the plan specified in ORS 459A.320 and payment of the registration fee required under ORS 459A.315, as necessary to implement and ensure compliance with, on or after the operative date specified in paragraph (a) of this subsection, the amendments to ORS 459.247, 459A.305, 459A.310, 459A.320, 459A.335 and 459A.340 by sections 4 and 6 to 10 of this 2011 Act.

SECTION 12. This 2011 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2011 Act takes effect on its passage.

Approved by the Governor June 28, 2011

Filed in the office of Secretary of State June 29, 2011

Effective date June 28, 2011

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