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. D. Solid waste transfer stations that handle electronic waste: The rule amends an exemption in s. NR 502.07, Wis. Adm. Code, to ensure electronics collection sites can meet the conditional license exemption as transfer stations in s. NR 502.07 (2), Wis. Adm. Code, when electronics are appropriately stored in cardboard Gaylords or on pallets and do not need to be moved off-site weekly. It also creates a new conditional exemption from solid waste transfer facility licensing for facilities such as retailer logistics centers, where loads of electronics collected from stores are consolidated. E. Solid waste processing license requirements for electronics processing facilities: The rule adds language to s. NR 502.08, Wis. Adm. Code, to require electronics processing facilities to obtain a solid waste processing license from the department and meet applicable code requirements for obtaining and maintaining that license. The rule exempts very small-scale electronics processing activities from licensing, along with electronics repair, which pose a low risk to human health or the environment and for which obtaining department approval would be burdensome and inefficient for both the facility and for the department. An addition to s. NR 502.08 (6), Wis. Adm. Code, is meant to ensure that third-party haulers contracted by electronics processing facilities are informed of applicable requirements under s. NR 502.06 (2) (ag), Wis. Adm. Code. F. Clarification of solid waste fees and financial responsibility requirements: The rule makes small changes in ch. NR 520, Wis. Adm. Code, to ensure electronics processing facilities are covered by this chapter in the same way that other solid waste processing facilities are, including being exempted from annual licensing fees, and to clarify what must be included in closure cost estimates for non-landfill solid waste facilities. This part of the rule addresses the most common bad actor problem, where a facility removes the most valuable components and leaves less valuable materials behind as waste. Creation of ch. NR 530, Wis. Adm. Code, specific to the E-Cycle Wisconsin program The new chapter only covers activities and entities regulated under s. 287.17, Wis. Stats. This includes both in-state and out-of-state brokers, collectors, manufacturers, recyclers and retailers. Generally, the proposed ch. NR 530, Wis. Adm. Code, matches existing registration and report forms, guidance, and other current practices. The rule seeks to codify some of the streamlined approaches that have been developed by the department and industry and to establish rules for the marketplace in recycling creidts that has developed since the 2009 statute was enacted. These include: — Clarification of which devices meet the definitions of “computer monitor,” “computer peripheral” and “consumer computer” under s. 287.17 (1), Wis. Stats. — Requirements for information submitted with annual registration and report forms.
— Eligibility of electronic devices recovered from waste loads or illegal dumping to count toward manufacturers’ weight recycled.
— The reasons and process for suspension and revocation of program registrations.
— Options for electronics retailers to comply with the prohibition in s. 287.17 (2) (c), Wis. Stats., on selling unregistered brands of covered electronics. Below are the requirements that are new or different under this rulemaking:
A. Criteria for determining when materials are “recyclable”: The existing s. 287.17 (1) (m), Wis. Stats., defines recycling as “preparing eligible electronic devices for use in manufacturing processes or for recovery of usable materials and delivering the materials for use.” It specifies that “recycling" does not include destruction by incineration or other processes or land disposal of recyclable materials and does not include reuse, repair, or any other process through which eligible electronic devices are returned for use by households or schools in their original form. The statute does not provide criteria for the department, manufacturers or recyclers to determine whether a material is “recyclable.” As markets for materials like cathode ray tube glass and plastics have shifted and dwindled, it has sometimes been difficult for the department to provide guidance on whether the weight of certain material from eligible electronic devices sent for disposal would still be eligible for manufacturer credit because it is not “recyclable.” The proposed rule lays out criteria to help make this determination.
B. Registered recyclers: The proposed rule makes small changes to operational and reporting requirements for registered recyclers, primarily to ensure owner financial responsibility (OFR) required under s. 287.17 (8) (c), Wis. Stats., adequately covers facility closure and cleanup costs. 1. On their annual registration, registered recyclers would need to list all facilities where they recycle or store eligible electronics (currently, they are only required to list facilities where they recycle eligible electronics) and maintain OFR for any storage facilities, in addition to the current requirement to maintain OFR for recycling facilities.
2. In-state registered recyclers would be subject to the solid waste processing license requirement described in the previous section under (F), and would need to follow the OFR requirements in ch. NR 520, Wis. Adm. Code. For the most part, in-state recyclers’ existing OFR should already meet these requirements. They would be required to name the department as the beneficiary or obligee for their OFR (nearly all do so already). 3. To ensure a level playing field with in-state recyclers, there would be more specific requirements for the OFR maintained by out-of-state registered recyclers, including naming an independent third party as the beneficiary or obligee, estimating costs based on an independent third party performing the work, and notifying the department of OFR changes or cancelation in a timely manner.
4. The rule also adds a requirement for registered recyclers to use and keep records of bills of lading for shipments of electronic devices or components under E-Cycle Wisconsin for at least 3 years. The U.S. Department of Transportation already requires bills of lading for most shipments, but the rule specifies details that should be included in shipments of electronics under the program.
C. Registered collectors: The proposed rule requires registered collectors to keep independent records of the dates and volumes of loads of eligible electronics they ship under the E-Cycle Wisconsin program. The goal is to maintain the ability to cross-check and verify reports provided to collectors by receiving facilities.
D. Authorized brokers: Several entities have been operating as brokers under E-Cycle Wisconsin since the program began. The proposed rule defines the term “authorized broker” as a person that provides services to registered manufacturers and registered recyclers for the purpose of cooperation under s. 287.17 (2) (b), Wis. Stats., and that complies with the notification requirement at s. NR 530.10 (2), Wis. Adm. Code. The only substantive change from existing practices is a requirement that registered recyclers that purchase recycled weight (often called “paper weight”) from other registered recyclers would be required to complete a broker form, as well as the registered recycler form. E. Electronics retailers: The proposed rule provides more information on how retailers may meet the customer education requirements in s. 287.17 (9), Wis. Stats. To meet the customer education requirement, retailers may include information on receipts for covered electronics about the electronics disposal bans and how to recycle eligible electronics. This could include linking to the department’s website. In brick-and-mortar stores, this information could also be posted prominently in either the store’s electronics section or by registers. F. Clarifying definitions of covered electronic devices: The proposed rule clarifies that components of video game systems, such as gaming consoles, are covered electronic devices if they meet the definition of “consumer computer” under s. 287.17 (1) (e), Wis. Stats. This would require manufacturers of these devices, the modern versions of which have much the same functionality as conventional computers, to register their brands, pay annual registration fees if applicable, and meet annual recycling targets based on the weight of these devices sold to Wisconsin households and covered schools. G. Addition of eligible electronic devices: The proposed rule adds three categories of devices to the list of eligible electronic devices under s. 287.17 (1) (gs), Wis. Stats., based on the department’s determination under s. 287.17 (10) (i), Wis. Stats., that the disposal or burning of these devices in a solid waste facility may be harmful to human health or the environment, due primarily to the fire risk posed by lithium ion and other rechargeable batteries these devices typically contain. The device categories are a telephone with a video display, a telephone accessory operated by a battery, and a component of a video game system or a portable hand-held video game device operated by a battery that does not meet the definition of a computer monitor or consumer computer. Telephones with video displays are already banned from landfills and incinerators under s. 287.07 (5), Wis. Stats., and the other two categories of devices are accessories to electronics that are or would be banned from landfills and incinerators. Adding these electronics as eligible electronic devices under E-Cycle Wisconsin will further facilitate and encourage their recycling and prevent them from causing fires during solid waste collection, transfer and disposal activities. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: There is no existing or proposed federal regulation for electronics recycling.
7. Summary of Comments Received on the Statement of Scope and How the Agency Took Those Comments into Account in Drafting the Proposed Rule: The department did not receive any comments on the statement of scope for this rule.
8. Comparison with Similar Rules in Adjacent States: Four other Midwest states (Illinois, Indiana, Michigan and Minnesota) have electronics take-back laws. Iowa does not have a similar law. In all four, all collectors and recyclers receiving and processing residential e-waste are required to register with the take-back programs (the programs equivalent to E-Cycle Wisconsin). In contrast, Wisconsin’s statute only requires collectors and recyclers participating in the manufacturer-funded E-Cycle Wisconsin program to register with the department.
Two of these states require recyclers to separately obtain a license or permit.
— Minnesota electronics recyclers are required to obtain a “permit by rule” as solid waste facilities, which requires a simple application and a sign-off by local governments that they have met zoning requirements. OFR is not required.
— Indiana issues permits to electronics recyclers that have 23 tons or more of material on-site for more than 5 days. The permits must be renewed every 5 years and require owner financial responsibility ($200/ton for material on-site, with the state as the beneficiary).
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The E-Cycle Wisconsin program began in 2010, and the department receives and analyzes annual reports from registered collectors, recyclers and manufacturers, and brokers. The department also conducts on-site inspections of registered collection sites and recyclers, and in-store and online inspections of electronics retailers. The department used data from these reports and inspections to identify areas where additional clarifications or requirements could improve the program’s function and efficiency and provide a more level playing field for participants.
There are currently 16 recyclers registered with E-Cycle Wisconsin, 6 located in Wisconsin and 10 based in other states. The department regularly requests and reviews paperwork from all registered recyclers to verify closure cost estimates and OFR methods and amounts. The department used this data to inform adjustments to OFR requirements in both ch. NR 520 and the new ch. NR 530, Wis. Adm. Code. The department also reviewed estimated or actual cleanup costs from enforcement cases related to electronics mismanagement since 2007.
In addition, the department gathered information to inform these rule changes at several E-Cycle Wisconsin stakeholder meetings. 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.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The proposed rule requires a solid waste processing plan of operation for electronics dismantling and processing activities. This would entail a one-time cost for some facilities, including small businesses, which is addressed in Section 11 of this board order below. These facilities would also be required to obtain an annual license; however, the department would waive annual licensing fees, as it currently does for other solid waste processing facilities with a primary purpose of recycling. Some of these costs could be offset by attracting customers that are seeking to work with department-licensed facilities, to ensure electronics are legitimately recycled.
