Relating to solar photovoltaic energy systems; prescribing an effective date.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 81st OREGON LEGISLATIVE ASSEMBLY--2021 Regular Session House Bill 2186 Sponsored by Representative WILDE (Presession filed.) SUMMARY The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor’s brief statement of the essential features of the measure as introduced. Establishes requirements for product stewardship program for solar photovoltaic energy sys- tems. Establishes Solar Photovoltaic Energy System Stewardship Fund. Becomes operative January 1, 2023. Imposes penalty for violation by manufacturer or stewardship organization of program pro- visions not to exceed $10,000 per day for each day of violation. Takes effect on 91st day following adjournment sine die. A BILL FOR AN ACT Relating to solar photovoltaic energy systems; creating new provisions; amending ORS 459.995; and prescribing an effective date. Be It Enacted by the People of the State of Oregon: SOLAR PHOTOVOLTAIC ENERGY SYSTEM STEWARDSHIP PROGRAM SECTION 1. As used in sections 1 to 11 of this 2021 Act: (1) “Brand” means a name, symbols, words or marks that identify a solar photovoltaic energy system and attribute the solar photovoltaic energy system to the manufacturer of the solar photovoltaic energy system. (2) “Consumer electronic device” means any device containing an electronic circuit board that is intended for everyday use by individuals. (3) “Environmentally sound management” includes the following management practices, implemented in a manner that is designed to protect public health, safety and the environ- ment: (a) Adequate record keeping; (b) Detailed documentation of the methods used to: (A) Manage end-of-life solar photovoltaic energy systems collected as part of a solar photovoltaic energy system stewardship program; and (B) Track and document the fate of end-of-life solar photovoltaic energy systems from collection through final disposition within this state and outside this state; (c) Performance audits and inspections of recyclers, haulers and other parties as deter- mined by a stewardship organization; (d) Compliance with worker health and safety requirements; and (e) Maintenance of adequate liability insurance for a stewardship organization and con- tractors working for the stewardship organization. NOTE: Matter in boldfaced type in an amended section is new; matter [ italic and bracketed] is existing law to be omitted. New sections are in boldfaced type. LC 1654 HB 2186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (4) “Manufacturer” means any person that: (a) Manufactures solar photovoltaic energy systems under a brand that it owns or is li- censed to use for sale in this state; (b) Assembles a solar photovoltaic energy system that uses parts manufactured by others for sale in this state under the assembler’s brand name; (c) Resells in this state under its own brand name a solar photovoltaic energy system produced by others; (d) Manufactures a cobranded solar photovoltaic energy system for sale in this state that carries the name of both the manufacturer and a retailer; (e) Imports a solar photovoltaic energy system into the United States that is sold in this state; (f) Sells at retail a solar photovoltaic energy system acquired from an importer that is the manufacturer and elects to register as the manufacturer for those products; or (g) Elects to assume the responsibility and register in lieu of a manufacturer as defined under paragraphs (a) to (f) of this subsection. (5) “Market share” means a manufacturer’s percentage of all solar photovoltaic energy systems sold in this state during a specified time period, as calculated in accordance with methods established by the Environmental Quality Commission by rule. (6) “Person” has the meaning given that term in ORS 468.005. (7) “Rare-earth element” means lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, lutetium, yttrium or scandium. (8) “Retailer” means a person that offers solar photovoltaic energy systems for sale at retail through any means, including but not limited to remote offerings such as sales outlets, catalogs or the Internet. (9) “Reuse” means any operation by which a solar photovoltaic energy system or a com- ponent of a solar photovoltaic energy system changes ownership and is used for the same purpose for which it was originally purchased. (10)(a) “Solar photovoltaic energy system” means equipment and devices that have the primary purpose of collecting solar energy and generating electricity by photovoltaic effect. (b) “Solar photovoltaic energy system” does not include a photovoltaic cell that is part of a consumer electronic device for which it provides electricity needed to make the con- sumer electronic device function. (11) “Solar photovoltaic energy system stewardship program” means a statewide program for the collection and environmentally sound management of solar photovoltaic energy sys- tems that is funded and operated by a stewardship organization pursuant to a plan approved by the Department of Environmental Quality under section 4 of this 2021 Act. (12) “Stewardship organization” means a corporation, nonprofit organization, or other legal entity designated by a manufacturer or a group of manufacturers to implement a solar photovoltaic energy system stewardship program. SECTION 2. (1) A manufacturer or retailer may not sell or offer for sale a solar photovoltaic energy system in this state unless the solar photovoltaic energy system is la- beled with a brand that is included in a plan for a solar photovoltaic energy system stewardship program that is approved by the Department of Environmental Quality under section 4 of this 2021 Act. [2] HB 2186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (2) A retailer is in compliance with subsection (1) of this section if, on the date the solar photovoltaic energy system is ordered from the manufacturer or its agent, the website maintained by the manufacturer’s stewardship organization lists the manufacturer, along with the manufacturer’s brand associated with the solar photovoltaic energy system, as a participant in an approved solar photovoltaic energy system stewardship program. SECTION 3. (1) Each stewardship organization must prepare and submit to the Depart- ment of Environmental Quality a plan for the development and implementation of solar photovoltaic energy system stewardship program. (2) A solar photovoltaic energy system stewardship program plan must describe how the stewardship organization will: (a) Manage and conduct a solar photovoltaic energy system stewardship program; (b) Fund the program, including how the stewardship organization will fund all the costs incurred for the collection and environmentally sound management of solar photovoltaic energy systems covered by the program with a funding mechanism that ensures that solar photovoltaic energy systems can be collected without cost to the last owner or holder; (c) Maximize the recovery of solar photovoltaic energy system components, including rare-earth elements and commercially valuable materials; (d) Provide for the collection of solar photovoltaic energy systems at locations that are within the region of this state in which the solar photovoltaic energy systems were used and are as convenient as reasonably practicable, and if no such location within the region of this state exists, include an explanation for the lack of such location; (e) Provide information to relevant stakeholders to enable stakeholders to properly dis- mantle, transport and treat end-of-life solar photovoltaic energy systems in a manner con- sistent with environmentally sound management practices and paragraph (c) of this subsection; (f) Establish performance goals, including a solar photovoltaic energy system reuse and recovery rate of no less than 85 percent; and (g) Establish and maintain a website that provides information about collection sites under the program and lists manufacturers participating in the stewardship organization under the program plan and the brands of solar photovoltaic energy systems that are sold or offered for sale in this state by participating manufacturers. (3) A stewardship organization may periodically amend a program plan by submitting an amendment to the department in the form and manner prescribed by the department. The department shall approve or reject a program plan amendment in the same manner as a program plan under section 4 of this 2021 Act. SECTION 4. (1) The Department of Environmental Quality shall approve a plan submitted under section 3 of this 2021 Act if the stewardship organization submits a completed plan, the proposed plan meets the requirements of section 3 (2) of this 2021 Act and the stewardship organization pays the fee established by the Department of Environmental Quality under section 6 (1)(a) of this 2021 Act. (2)(a) Not later than 60 days after receiving a plan under section 3 of this 2021 Act, the department shall approve or reject the plan. If the department rejects the plan, the depart- ment shall inform the stewardship organization of the reason or reasons for the rejection. (b) Not later than 60 days after the department rejects a plan under paragraph (a) of this subsection, a stewardship organization must submit to the department a revised plan. Not [3] HB 2186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 later than 90 days after receiving a revised plan under this paragraph, the department shall approve or reject the revised plan. (3) A stewardship organization must implement a stewardship plan approved under this section within 90 days of the date on which the department approves the plan. SECTION 5. (1) By April 1 of each year, or by a later date as determined by the Depart- ment of Environmental Quality, a stewardship organization shall provide a report for review by the department that details how the plan approved by the department under section 4 of this 2021 Act was implemented during the previous calendar year. (2) A report under this section must include: (a) Information about the services that were provided and the materials collected during the previous calendar year; and (b) An evaluation of the stewardship organization’s success in meeting the performance goals established under section 3 (2)(f) of this 2021 Act. SECTION 6. (1) The Department of Environmental Quality shall establish and collect the following fees from a stewardship organization: (a) A fixed, one-time fee reasonably calculated to cover the costs of reviewing a solar photovoltaic energy system stewardship program plan submitted under section 3 of this 2021 Act. (b) An annual fee charged to each stewardship organization reasonably calculated to cover the costs of administering, implementing and enforcing sections 1 to 11 of this 2021 Act. (2) The fee calculated for each stewardship organization under subsection (1)(b) of this section must be proportionate to the market share of all solar photovoltaic energy systems sold in this state by the manufacturers registered with the stewardship program. The de- partment may make a reasonable estimate of the market share of a manufacturer for any year for which market share information for that manufacturer has not been provided to the department. (3) Fees collected by the department under this section shall be deposited in the State Treasury to the credit of the Solar Photovoltaic Energy System Stewardship Fund estab- lished under section 8 of this 2021 Act. SECTION 7. (1) In accordance with the applicable provisions of ORS chapter 183 relating to contested case proceedings, the Department of Environmental Quality may issue an order requiring compliance with the provisions of sections 1 to 11 of this 2021 Act. (2) The department may bring an action against any person that is in violation of the provisions of sections 1 to 11 of this 2021 Act. SECTION 8. The Solar Photovoltaic Energy System Stewardship Fund is established, separate and distinct from the General Fund. Interest earned by the Solar Photovoltaic Energy System Stewardship Fund shall be credited to the fund. Moneys in the fund are continuously appropriated to the Department of Environmental Quality and may be used only to pay the costs of administering, implementing and enforcing sections 1 to 11 of this 2021 Act. SECTION 9. The Legislative Assembly declares that the collaboration of manufacturers and stewardship organizations to develop and implement solar photovoltaic energy system stewardship programs is in the best interests of the public. Therefore, the Legislative As- sembly declares its intent that the development, implementation and operation of solar [4] HB 2186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 photovoltaic energy system stewardship programs as required by sections 1 to 11 of this 2021 Act shall be exempt from state antitrust laws. The Legislative Assembly further declares its intent to provide immunity for the development, implementation and operation of solar photovoltaic energy system stewardship programs as required by sections 1 to 11 of this 2021 Act from federal antitrust laws. This section does not authorize any person to engage in activities or to conspire to engage in activities that constitute per se violations of state or federal antitrust laws that are not authorized under sections 1 to 11 of this 2021 Act. SECTION 10. (1) The Department of Environmental Quality shall evaluate any federal law that establishes a national program for the collection and recycling of solar photovoltaic energy systems. (2) If the department determines that the federal law substantially meets or exceeds the requirements and intent of sections 1 to 11 of this 2021 Act, the department shall include information on the federal law in a report to the appropriate interim committees of the Legislative Assembly in the manner provided under ORS 192.245 no later than September 15 of the even numbered year next following. SECTION 11. The Environmental Quality Commission may adopt rules as necessary to implement sections 1 to 11 of this 2021 Act. SECTION 12. ORS 459.995 is amended to read: 459.995. (1) Except as provided in subsection (2) of this section, in addition to any other penalty provided by law: (a) Any person who violates ORS 459.205, 459.270, 459.272, 459.386 to 459.405, 459.705 to 459.790, 459A.005 to 459A.620, 459A.310 to 459A.335, 459A.675 to 459A.685 or 646A.080, or any rule or order of the Environmental Quality Commission pertaining to the disposal, collection, storage or reuse or recycling of solid wastes, as defined by ORS 459.005, or any rule or order pertaining to the disposal, storage or transportation of waste tires, as defined by ORS 459.705, or any rule or order pertaining to the sale of novelty items that contain encapsulated liquid mercury, incurs a civil penalty not to exceed $25,000 per day for each day of the violation. (b) Any person who violates the provisions of ORS 459.420 to 459.426 incurs a civil penalty not to exceed $500 for each violation. Each battery that is disposed of improperly is a separate violation. Each day an establishment fails to post the notice required under ORS 459.426 is a separate vio- lation. (c) For each day a city, county or metropolitan service district fails to provide the opportunity to recycle as required under ORS 459A.005, the city, county or metropolitan service district incurs a civil penalty not to exceed $500 for each violation. (d) Any person who violates the provisions of ORS 459.247 (1)(f) incurs a civil penalty not to exceed $500 for each violation. Each covered electronic device that is disposed of improperly is a separate violation. (e) Any retailer that violates the provisions of ORS 459A.825 (1) or (2)(b) or section 2 of this 2021 Act incurs a civil penalty not to exceed $100 per day for each day of the violation. (f) Any producer that violates the provisions of ORS 459A.825 (1) incurs a civil penalty not to exceed $1,000 per day for each day of the violation. (g) Any stewardship organization that violates the provisions of ORS 459A.825 (2)(a), 459A.827, 459A.830 to 459A.837 or 459A.842 incurs a civil penalty not to exceed $1,000 per day for each day of the violation. (h) Any manufacturer or stewardship organization that violates sections 1 to 11 of this [5] HB 2186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 2021 Act or any rule adopted under sections 1 to 11 of this 2021 Act incurs a civil penalty not to exceed $10,000 per day for each day of the violation. (2) Any product manufacturer or package manufacturer who violates ORS 459A.650 to 459A.665 or any rule adopted under ORS 459A.650 to 459A.665 incurs a civil penalty not to exceed $1,000 per day for each day of the violation. A violation of ORS 459A.650 to 459A.665 is not subject to addi- tional penalties under subsection (1) of this section. (3) Any civil penalty authorized by subsection (1) or (2) of this section shall be imposed in the manner provided by ORS 468.135. MISCELLANEOUS SECTION 13. (1) Sections 1 to 11 of this 2021 Act and the amendments to ORS 459.995 by section 12 of this 2021 Act become operative on January 1, 2023. (2) The Environmental Quality Commission and the Department of Environmental Qual- ity may take any action before the operative date specified in subsection (1) of this section that is necessary for the commission and the department to exercise, on and after the op- erative date specified in subsection (1) of this section, all of the duties, functions and powers conferred on the commission and the department by sections 1 to 11 of this 2021 Act and the amendments to ORS 459.995 by section 12 of this 2021 Act. SECTION 14. Initial plans for solar photovoltaic energy system stewardship programs under section 3 of this 2021 Act must be submitted to the Director of the Department of Environmental Quality no later than April 1, 2023. CAPTIONS SECTION 15. The unit captions used in this 2021 Act are provided only for the conven- ience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2021 Act. EFFECTIVE DATE SECTION 16. This 2021 Act takes effect on the 91st day after the date on which the 2021 regular session of the Eighty-first Legislative Assembly adjourns sine die. [6]