The statement of scope for this rule, SS 093-19, was approved by the Governor on August 29, 2019, published in Register No. 765A1 on September 3, 2019, and approved by the Natural Resources Board on December 11, 2019. This rule was approved by the Governor on November 18, 2021.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
RENUMBERING AND AMENDING, AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to renumber and amend NR 500.03 (203) and 520.07 (2); to amend NR 502.05 (3) (a), 502.06 (2) (am), 502.07 (1) (b), (c), (cm), (2) (a), (c) and (2f), 502.08 (2) (f), 520 Table 2 Footnote (4); and to create NR 500.03 (71g), (71m), (71r) and (203) (b), 502.04 (6) Note, 502.06 (2) (ag) and (L), 502.07 (2) (am), (cm), and (2d), 502.08 (1) (c), (2) (j), (k), and (6) (p), 520.07 (2m) and ch. 530 relating to implementing electronics recycling program requirements and affecting small business.
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
Section 287.03, Wis. Stats., directs the department to promulgate rules necessary to implement ch. 287, Wis. Stats. In addition, s. 287.17, Wis. Stats., gives the department specific authority for promulgating rules related to certain aspects of the electronics recycling law. Section 287.17 (10) (k), Wis. Stats., gives the department authority to modify manufacturer registration fees. Section 287.17 (10) (i), Wis. Stats., gives the department authority to modify the list of eligible electronic devices in s. 287.17 (1) (gs), Wis. Stats., or the list of electronics banned from landfill or incinerator disposal in s. 287.07 (5) (a), Wis. Stats. Section 287.17 (8) (e) gives the department authority to modify or add to operational requirements for registered recyclers. Section 289.06 (1), Wis. Stats., directs the department to promulgate rules implementing and consistent with ch. 289 and ss. 292.31 and 292.35, Wis. Stats.
4. Related Statutes or Rules:
Chapter NR 500, Wis. Adm. Code, General Solid Waste Management Requirements Chapter NR 502, Wis. Adm. Code, Solid Waste Storage, Transportation, Transfer, Incineration, Air Curtain Destructors, Processing, Wood Burning, Composting And Municipal Solid Waste Combustors Chapter NR 520, Wis. Adm. Code, Solid Waste Management Fees And Financial Responsibility Requirements Section 287.07, Wis. Stats., prohibitions on land disposal and incineration, including for electronic devices.
5. Plain Language Analysis:
Wisconsin’s electronics recycling law (2009 Wisconsin Act 50) established a statewide product stewardship program to collect and recycle certain electronics from Wisconsin households and schools (now in s. 287.17, Wis. Stats.). This recycling program, funded by manufacturers of TVs, computers, monitors and printers, is called E-Cycle Wisconsin. The law also banned landfill and incinerator disposal of many electronics beginning in September 2010 under s. 287.07 (5), Wis. Stats. To date, the department has not promulgated any rules related to ss. 287.07 (5) or 287.17, Wis. Stats. Section 287.17, Wis. Stats., was intended to be detailed enough for the department to complete initial implementation without rulemaking (it prohibited the department from promulgating rules during the first two years of the program). Since 2009 Wisconsin Act 50 took effect, the state’s electronics recycling industry has grown and matured, and relationships among electronics collection points, consolidation points, recycling facilities and electronics manufacturers have become more complex. The department has worked extensively with program participants over the years to develop and improve streamlined, online registration and report forms. These allow the department to verify the accuracy of information that collectors, recyclers and manufacturers report, and also provide data to update a public list of electronics recycling options in real time, which the department identified as a high priority based on statewide surveys of Wisconsin households. In addition, the department has worked with stakeholders to put in place a flexible and efficient marketplace for the buying and selling of credit for recycled eligible electronic devices, making it easier for manufacturers to meet their recycling targets and for recyclers to recover costs. The proposed new ch. NR 530, Wis. Adm. Code, codifies many of these improved and streamlined registration and reporting practices. Prior to the electronics recycling law’s enactment in 2009, and anticipating increasing volumes of electronic devices reaching the end of their service life, the department modified regulatory requirements for electronics recycling to encourage development of e-cycling infrastructure. The department exempted electronics recyclers from solid waste processing license requirements under s. NR 502.08 (2) (f), Wis. Adm. Code, as “Facilities for the processing of scrap iron, steel or nonferrous metal using large machines to produce a principal product of scrap metal for scrap or use for remelting purposes.” Transporters were also exempted from solid waste transporting requirements under s. NR 502.06 (2) (a), Wis. Adm. Code, as “Services for the collection and transportation of only gravel pit spoils, quarry materials, earth materials or salvageable materials other than those listed in s. 287.07 (3) or (4), Stats.”
Since these decisions were made, there have been several significant changes in the electronics recycling landscape that have led the department to re-examine this interpretation with this rulemaking and seek to define requirements for electronics collection, transportation and recycling activities. These included:
— Significant growth in Wisconsin’s electronics recycling infrastructure, due largely to 2009 Wisconsin Act 50, including the rapid growth among a handful of high-tech recycling facilities in the state.
— An increase in enforcement cases resulting from irresponsible recyclers or “scrappers” removing high value metals from electronics while illegally leaving hazardous materials behind. Since 2015, the department estimates these cases have led to more than $2 million in completed or projected cleanups. The majority of these costs are covered either by taxpayers or by landlords who own the properties on which the material has been mismanaged.
— A large change in the market for glass from cathode ray tubes (CRTs), which has made recycling older TVs and monitors much more expensive and led to stockpiles of CRTs and lead-containing CRT glass which is a hazardous waste.
— Greater public awareness of the need to recycle electronics, and more demand for legitimate recyclers providing these services.
— The rapid and continued evolution of electronics, which has changed both the commodity value of electronic waste and the methods and tools needed to properly recycle it. Newer electronics have a lower metal content (more valuable as commodities) with a commensurate increase in plastic components with a lower commodity value. They contain fewer toxic materials, but more flammable, difficult-to-remove lithium ion batteries, which add labor and fire prevention costs.
Many elements in this rule come directly from discussions with E-Cycle Wisconsin program stakeholders over the years. At the most recent E-Cycle Wisconsin stakeholder meeting in May 2018, participants were positive about the electronics recycling law, but noted several areas of concern, including a need for more actions to deter bad actors; the lack of affordable, convenient recycling for some state residents; a lack of consumer awareness about the need to responsibly recycle electronics; and economic and safety issues the changing electronic waste stream has brought to collectors and recyclers. The department has addressed these concerns in the proposed rule.
Changes to existing chs. NR 500, 502 and 520, Wis. Adm. Code The department is proposing the following changes to chs. NR 500, 502 and 520, Wis. Adm. Code, to ensure safe collection, transportation and processing of electronic waste and to make regulation of these activities more consistent with other types of solid waste: A. Definitions: The rule creates and amends definitions in s. NR 500.03, Wis. Adm. Code, to make it clear that electronic devices are a different type of material than scrap metal, appliances or other materials defined in this section, and to clarify what is and is not included in electronics processing. This is necessary because many appliances, cars and other items would now also meet the definition of an electronic device. The rule specifically excludes electronic devices from the definition of “salvageable materials” in s. NR 500.03 (203), Wis. Adm. Code, which required the department to amend or add language in several parts of ch. NR 502 to clarify requirements for electronic devices. B. Storage of waste electronic devices at apartments, commercial establishments, business establishments and industries: The rule amends language in s. NR 502.05 (3) (a), Wis. Adm. Code, to ensure electronics and similar devices that may not need to be stored in containers are still eligible for this exemption from solid waste storage licensing. C. Transportation of electronic waste: The rule adds and amends language in s. NR 502.06, Wis. Adm. Code, to exempt trucks carrying only electronic waste for recycling from the requirement to obtain a solid waste collection and transportation (C&T) license from the department, but to retain basic operational requirements to ensure the electronics remain recyclable and that haulers comply with the electronics disposal ban. It also creates an exemption from C&T licensing for parcel carriers transporting incidental amounts of solid waste for recycling, such as electronic devices, smoke detectors, or other items recycled through mail-back programs.