Chapter 287

287.17(4)(bm) (bm) Shortfall fees. In addition to the registration fee, beginning in 2011, a manufacturer shall pay shortfall fees under par. (d) if the amounts calculated under that provision are positive numbers, except that a manufacturer is not required to pay shortfall fees until its covered electronic devices have been sold or offered for sale to households or covered schools in this state for 3 full program years and except as provided under par. (g).

287.17(4)(d) (d) Annual shortfall fee. The annual shortfall fee to be paid by a manufacturer in a program year is calculated as follows:

287.17(4)(d)1. 1. Determine the manufacturer’s target recycling weight. The department shall calculate the target recycling weight for each manufacturer for the upcoming program year and shall report a manufacturer’s target recycling weight to the manufacturer no later than the August 1 preceding the program year in which the target recycling weight will apply. The department shall calculate a manufacturer’s target recycling weight as follows:

287.17(4)(d)1.a. a. Divide the number of pounds of the manufacturer’s covered electronic devices sold to households or covered schools in this state during the program year that began 2 program years before the beginning of the program year in which the target recycling weight will apply, as reported under sub. (5) (a), by the total weight of all manufacturers’ covered electronic devices sold to households or covered schools in this state during the same program year. The quotient, rounded to the nearest one-hundredth, shall be the manufacturer’s market share percentage.

287.17(4)(d)1.b. b. Multiply the manufacturer’s market share percentage, as calculated under subd. 1. a., by the total weight of eligible electronic devices collected in this state that recyclers received for recycling during the program year that began 2 program years before the beginning of the program year in which the target recycling weight will apply, as reported under sub. (8) (b) 1. The product, rounded to the nearest whole number, shall be the manufacturer’s target recycling weight for the upcoming program year.

287.17(4)(d)2. 2. Determine the actual recycling weight by adding the weight of eligible electronic devices recycled by or on behalf of the manufacturer during the previous program year, as determined under par. (f) 1., plus the number of recycling credits that a manufacturer elects to use, as reported to the department under sub. (5) (c) 3.

287.17(4)(d)3. 3. Subtract the actual recycling weight, determined under subd. 2., from the target recycling weight, determined under subd. 1.

287.17(4)(d)4. 4. Multiply the amount determined under subd. 3. by the estimated cost of recycling determined as follows:

287.17(4)(d)4.a. a. Fifty cents per pound for a manufacturer if the weight of eligible electronic devices recycled by or on behalf of the manufacturer, as determined under subd. 2., is less than 50 percent of the target recycling weight, determined under subd. 1.

287.17(4)(d)4.b. b. Forty cents per pound for a manufacturer if the weight of eligible electronic devices recycled by or on behalf of the manufacturer, as determined under subd. 2., is at least 50 percent but not more than 90 percent of the target recycling weight, determined under subd. 1.

287.17(4)(d)4.c. c. Thirty cents per pound for a manufacturer if the weight of eligible electronic devices recycled by or on behalf of the manufacturer, as determined under subd. 2., is more than 90 percent of the target recycling weight, determined under subd. 1.

287.17(4)(dm) (dm) Target recycling weight for 2010. A manufacturer’s target recycling weight for the last 2 program quarters of program year 2009-10, is calculated by multiplying the number of pounds of the manufacturer’s covered electronic devices sold to households in this state during program year 2007-08, as reported under sub. (5) (a), by 0.8 and multiplying the product by 0.5.

287.17(4)(e) (e) Recycling credits. If, for a program year, the weight of eligible electronic devices recycled by or on behalf of a manufacturer, as determined under par. (f) 1. or 2., exceeds the target recycling weight determined under par. (d) 1. or (dm), the manufacturer has a number of recycling credits equal to the number of excess pounds or 20 percent of the target recycling weight, whichever is less. The manufacturer may use the credits for the purpose of par. (d) 2. for any of the 3 succeeding program years or may sell credits to another manufacturer for use for any of the 3 succeeding program years.

287.17(4)(f) (f) Weight recycled.

287.17(4)(f)1. 1. The weight of eligible electronic devices recycled by or on behalf of a manufacturer for a program year is the weight reported under sub. (5) (b) for that program year, except that if the manufacturer reports separately the weight of eligible electronic devices used by households or covered schools in rural counties and used by households or covered schools in urban counties for a program year, the weight is determined by adding the weight used by households or covered schools in urban counties in that program year and 1.25 times the weight used by households or covered schools in rural counties in that program year.

287.17(4)(f)2. 2. The weight of eligible electronic devices recycled by or on behalf of a manufacturer for the last 2 program quarters of program year 2009-10 is the weight reported under sub. (5) (b) for that period, except that if the manufacturer reports separately the weight of eligible electronic devices used by households or covered schools in rural counties and used by households or covered schools in urban counties for that period, the weight is determined by adding the weight used by households or covered schools in urban counties in that period and 1.25 times the weight used by households or covered schools in rural counties in that period.

287.17(4)(g) (g) Relief from shortfall fee.

287.17(4)(g)1. 1. Instead of paying a shortfall fee under this subsection in a year, a manufacturer may submit, with its registration, a request for relief from the shortfall fee in that year along with information showing that the manufacturer has made good faith progress toward meeting its target recycling weight under par. (d) 1.

287.17(4)(g)2. 2. If the department determines that a manufacturer that makes a request under subd. 1. in a year has made good faith progress toward meeting its target recycling weight, the department shall waive the requirement that the manufacturer pay the shortfall fee in the year. If the department determines that the manufacturer has not made good faith progress toward meeting its target recycling weight, it shall notify the manufacturer and the manufacturer shall pay the shortfall fee within 60 days after receiving the notification.

287.17(4)(g)3. 3. The department shall establish by rule what may constitute good faith progress toward meeting a target recycling weight under this paragraph. The rule shall provide flexibility in staff determination of good faith progress, but shall establish means by which good faith progress may be demonstrated, and shall account for circumstances beyond a manufacturer’s control such as a reduction in collection sites or events due to a local or statewide declared emergency.

287.17(5) (5) Manufacturers reporting requirements.

287.17(5)(a) (a) Weight of covered electronic devices sold.

287.17(5)(a)1. 1. Except as provided in subd. 3., with each registration that it submits under sub. (3), a manufacturer shall report one of the following to the department:

287.17(5)(a)1.a. a. The total weight of each model of its covered electronic devices sold to households or covered schools in this state during the previous program year.

287.17(5)(a)1.b. b. The total weight of all of its covered electronic devices sold to households or covered schools in this state during the previous program year.

287.17(5)(a)1.c. c. An estimate, based on national sales data, of the total weight of its covered electronic devices sold to households or covered schools in this state during the previous program year.

287.17(5)(a)2. 2. A manufacturer shall include in the report required under subd. 1. a description of how the manufacturer calculated the weight reported under subd. 1.

287.17(5)(a)3. 3. A manufacturer is not required to report under subd. 1. until its covered electronic devices have been sold or offered for sale to households or covered schools in this state for one full program year.

287.17(5)(a)4. 4. The department may reject a manufacturer’s report under subd. 1. if it determines that the report is not complete or not reasonably accurate.

287.17(5)(b) (b) Weight of eligible electronic devices recycled. With the registration that it submits under sub. (3), a manufacturer shall report to the department the total weight of eligible electronic devices used by households or covered schools in this state that were collected by or delivered to the manufacturer for recycling by the manufacturer or that were collected by or delivered to a registered recycler for recycling on behalf of the manufacturer during the preceding program year. A manufacturer shall also report separately the weight of eligible electronic devices used by households or covered schools in rural counties and used by households or covered schools in urban counties for the purpose of obtaining the weight adjustment under sub. (4) (f) for eligible electronic devices received from households or covered schools in rural counties.

287.17(5)(c) (c) Recycling credits. With the registration that it submits under sub. (3), beginning in 2011, a manufacturer shall report all of the following to the department:

287.17(5)(c)1. 1. The number of recycling credits that the manufacturer purchased during the preceding program year.

287.17(5)(c)2. 2. The number of recycling credits that the manufacturer sold during the preceding program year.

287.17(5)(c)3. 3. The number of recycling credits that the manufacturer elects to use in the calculation of its shortfall fees under sub. (4) (d) 2.

287.17(5)(c)4. 4. The number of recycling credits available to the manufacturer after calculating its shortfall fees under sub. (4) (d) 2.

287.17(7) (7) Collectors.

287.17(7)(a) (a) Registration.

287.17(7)(a)1. 1. No person may operate as a collector delivering or arranging for the delivery of eligible electronic devices to a registered recycler for recycling on behalf of a manufacturer who is registered under sub. (3) unless the person is registered under this paragraph. A person shall register by submitting, no later than the first day of the 2nd month of each program year, to the department a registration, using a form prescribed by the department, that includes all of the following:

287.17(7)(a)1.a. a. The name, address, and contact information of a responsible individual.

287.17(7)(a)1.b. b. The street address of all facilities at which the person operates as a collector.

287.17(7)(a)1.c. c. A certification that the person has all governmental licenses or other approvals that are required to operate as a collector and has complied, and will continue to comply, with the requirements of this subsection and with applicable health, environmental, safety, and financial responsibility requirements.

287.17(7)(a)2. 2. A complete registration is effective on receipt by the department and is valid until the first day of the 2nd month of the following program year unless suspended or revoked before that date.

287.17(7)(b) (b) Reports and records. No later than the first day of the 2nd month of each program year, a registered collector shall report to the department the total weight of eligible electronic devices collected in this state during the preceding program year and the names of all registered recyclers to whom the collector delivered eligible electronic devices. A registered collector shall maintain records of the sources of eligible electronic devices it collects and of the registered recyclers to whom the collector delivers eligible electronic devices.

287.17(7)(c) (c) Limitation. A registered collector may not use prison labor to collect eligible electronic devices the weight of which was or will be reported under sub. (5) (b).

287.17(8) (8) Recyclers.

287.17(8)(a) (a) Registration.

287.17(8)(a)1. 1. No person may operate as a recycler receiving eligible electronic devices on behalf of a manufacturer who is registered under sub. (3) unless the person is registered under this paragraph. A person shall register by submitting, no later than the first day of the 2nd month of each program year, to the department a registration, using a form prescribed by the department, that includes all of the following:

287.17(8)(a)1.a. a. The name, address, and contact information of a responsible individual.

287.17(8)(a)1.b. b. The street address of all facilities at which the person conducts recycling.

287.17(8)(a)1.c. c. The certification required under par. (d).

287.17(8)(a)1.d. d. Documentation of the liability insurance required under this subsection.

287.17(8)(a)2. 2. A complete registration is effective on receipt by the department and is valid until the first day of the 2nd month of the following program year unless suspended or revoked before that date.

287.17(8)(b) (b) Reports and records.

287.17(8)(b)1. 1. No later than the first day of the 2nd month of each program year, a registered recycler shall report to the department the total weight of eligible electronic devices collected in this state that the recycler received for recycling on behalf of a manufacturer registered under sub. (3) during the preceding program year and the name of the manufacturer.

287.17(8)(b)2. 2. No later than the first day of the 8th month of each program year, a registered recycler shall report to the department all of the following:

287.17(8)(b)2.a. a. The total weight of eligible electronic devices collected in this state that the recycler received for recycling on behalf of a manufacturer during the first 6 months of the program year and the name of the manufacturer.

287.17(8)(b)2.b. b. The total weight of eligible electronic devices collected in this state that the recycler received for recycling during the first 6 months of the program year in anticipation of attributing them to a manufacturer for the purposes of the program under this section.

287.17(8)(b)3. 3. A registered recycler shall maintain records of the sources of eligible electronic devices collected in this state that the recycler receives for recycling on behalf of a manufacturer registered under sub. (3).

287.17(8)(c) (c) Operational requirements.

287.17(8)(c)1. 1. A registered recycler shall maintain liability insurance coverage in the amount of at least $1,000,000 for environmental releases, accidents, and other emergencies.

287.17(8)(c)2. 2. A registered recycler may not use prison labor to recycle eligible electronic devices the weight of which was or will be reported under sub. (5) (b).

287.17(8)(c)3. 3. A registered recycler shall maintain proof of financial responsibility ensuring the availability of funds in an amount sufficient to cover the reasonable estimated costs of paying another person to close the facilities at which recycling is conducted, including managing any remaining eligible electronic devices or materials derived from eligible electronic devices and performing any necessary environmental cleanup. The registered recycler shall maintain, and provide to the department upon request, an itemized statement of the estimated costs in a form specified by the department and documentation of the source of the estimates. The registered recycler may provide the proof of financial responsibility required under this subdivision using one of the following:

287.17(8)(c)3.a. a. A surety bond.

287.17(8)(c)3.b. b. A deposit of cash, certificates of deposit, or securities issued by the federal government.

287.17(8)(c)3.c. c. An escrow account.

287.17(8)(c)3.d. d. An irrevocable letter of credit.

287.17(8)(c)3.e. e. An irrevocable trust.

287.17(8)(c)4. 4. A registered recycler shall maintain records that can be used to determine, for each program year, the total weight of eligible electronic devices recycled by the recycler on behalf of manufacturers under this section, the weight of materials derived from those eligible electronic devices that the registered recycler sends to another person for use in a manufacturing process or for recovery of usable materials, and the weight of materials derived from those eligible electronic devices that the registered recycler sends to be disposed of in a solid waste disposal facility or burned at a solid waste treatment facility.

287.17(8)(c)5. 5. A registered recycler shall maintain records that do all of the following:

287.17(8)(c)5.a. a. Identify each person who received from the registered recycler materials derived from eligible electronic devices recycled on behalf of manufacturers under this section.

287.17(8)(c)5.b. b. If a person identified under subd. 5. a. does not use the materials in a manufacturing process, identify each person who receives from the person identified under subd. 5. a. materials derived from eligible electronic devices recycled on behalf of manufacturers under this section.

287.17(8)(c)5m. 5m. A registered recycler shall make the information under subds. 4. and 5. for a program year available, upon request, to a manufacturer on behalf of whom the recycler recycled eligible electronic devices under this section in that program year, except that if the recycler maintains a system under which it tracks eligible electronic devices recycled on behalf of one manufacturer, and the disposition of the materials derived from those eligible electronic devices, separately from other eligible electronic devices that it recycles, the recycler is only required to provide to that manufacturer the information under subds. 4. and 5. concerning the eligible electronic devices recycled on behalf of that manufacturer.

287.17(8)(c)6. 6. A registered recycler shall maintain records that show the actions that it takes in a program year to ensure that the persons identified under subd. 5. use the materials derived from eligible electronic devices in a manufacturing process or for recovery of usable materials and shall make that information available upon request to a manufacturer on behalf of whom the recycler recycles eligible electronic devices under this section in that program year.

287.17(8)(c)7. 7. A registered recycler shall prepare and maintain a written contingency plan for responding to releases of hazardous substances that complies with the requirements in s. NR 664.0052, Wis. Adm. Code.

287.17(8)(c)8. 8. A registered recycler shall comply with any other operational requirement in rules promulgated under par. (e).

287.17(8)(d) (d) Certification. As a condition of registration under par. (a), a registered recycler shall submit to the department a certification that states that the registered recycler does all of the following:

287.17(8)(d)1. 1. Complies with par. (c).

287.17(8)(d)2. 2. Complies with federal, state, and local requirements concerning the storage, transportation, processing, and exporting of eligible electronic devices and materials derived from eligible electronic devices, including the requirements in 40 CFR 261.39 (a) (5) and 273.20 and requirements in rules promulgated under s. 291.05.

287.17(8)(d)3. 3. Complies with federal requirements under 29 CFR 1910.120 concerning occupational and environmental health and safety training for employees.

287.17(8)(e) (e) Modifying or adding requirements by rule. The department shall review the requirements under par. (c) 1. to 7. to determine whether it is necessary to modify or add to those requirements so that the requirements applicable to registered recyclers are at least equivalent to nationally recognized standards for recycling eligible electronic devices. If the department determines that it is necessary to modify or add to the requirements under par. (c) 1. to 7., the department shall promulgate rules that modify or add to the requirements so that they are at least equivalent to nationally recognized standards for recycling eligible electronic devices. The department may not promulgate a rule under this paragraph that takes effect before October 1, 2011.

287.17(9) (9) Retailers. Beginning on July 1, 2010, a retailer who sells covered electronic devices for use by households or covered schools shall provide to purchasers information describing how eligible electronic devices can be collected and recycled and a description of the prohibitions in s. 287.07 (5) (a). A retailer may satisfy this requirement by providing a toll-free number for receiving the information and a description of how to access the department’s Internet site under sub. (10) (a). A retailer who sells through a catalog may provide the information in the catalog. A retailer who sells through the Internet may provide the information on its Internet site.

287.17(9m) (9m) Record keeping and inspection. A person subject to sub. (3), (7), (8), or (9) shall maintain records related to the program under this section and reports required under this section for at least 3 program years. The department may inspect records of a person subject to sub. (3), (7), (8), or (9) that are related to the program under this section.

287.17(10) (10) Powers and duties of the department.

287.17(10)(a) (a) Internet site; manufacturers. The department shall maintain an Internet site on which the department lists the names of manufacturers who are registered under sub. (3) and the names of the brands listed in the manufacturers’ registrations. The department shall update the information on the Internet site promptly upon receipt of a new or revised registration. The department shall include on the Internet site a statement that this section applies only to covered electronic devices sold for household or covered school use and that the list of manufacturers is not a list of manufacturers qualified to sell video display devices, computers, or printers for industrial, commercial, or other nonhousehold or non-covered-school uses. The department shall also include on the Internet site the contact information provided by manufacturers under sub. (3) (a) 2.

287.17(10)(am) (am) Internet site; recyclers. The department shall maintain an Internet site on which the department lists the names of registered recyclers. The department shall update the information on the Internet site promptly upon receipt of a new or revised registration.

287.17(10)(b) (b) Providing information. Except as provided in par. (bm), the department shall make the information provided in registration statements and reports under subs. (3), (5), (7), and (8) available to manufacturers, retailers, and the public.

287.17(10)(bm) (bm) Confidentiality.

287.17(10)(bm)1. 1. The department shall keep confidential any part of a record, report, or other information obtained in the administration of this section upon receiving an application for confidential status by any person containing a showing satisfactory to the department that the part of a record, report, or other information would, if made public, divulge a method or process that is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), of that person.

287.17(10)(bm)2. 2. If the department refuses to release information on the grounds that it is confidential under subd. 1. and anyone challenges that refusal, the department shall inform the person who submitted the application under subd. 1. of that challenge. Unless that person authorizes the department to release the information, that person shall pay the reasonable costs incurred by this state to defend the refusal to release the information.