Proposed Covered Electronic Device Takeback Program: WVDEP Responds to Comments

The West Virginia Department of Environmental Protection (WVDEP) has responded to comments on the proposed Covered Electronic Device Takeback Program Rule, 33 CSR 11, that the agency proposed as required by S.B. 746 that took effect in June 2008. The 2010 Legislature will likely adopt a version of the proposed rule, and the WVDEP’s response to comments provides guidance for manufacturers selling or interested in selling computers, monitors, televisions, digital picture frames and other electronic devices in West Virginia as well as counties and municipalities interested in obtaining funding to stage electronic takeback events or establish long-term takeback/recycling programs for electronic devices. The WVDEP’s response to comments may also be of interest to retailers and consumers of electronic devices seeking access to the manufacturers authorized to sell or lease their products in West Virginia. 

Senate Bill 746 added six new sections to The A. James Manchin Rehabilitation Environmental Action Plan, which are codified at W. Va. Code §§22-15A-24 through 29, relating to implementing a takeback program for certain electronic devices with manufacturers. The proposed rule would establish procedures for manufacturers of covered electronic devices (CEDs) to register their brands with the state and pay the required annual registration fee. During the first year of the program, the initial registration fee is $10,000 per manufacturer that has not implemented a takeback program in West Virginia. The fee for all subsequent years for non-participating registered manufacturers is $5,000. A fee of $3,000 is required if an approved takeback or recycling program has been implemented in the prior year in West Virginia, and the fee for all subsequent years for participating manufacturers is $500. The proposed rule would also establish the Covered Electronic Device Grant Program, which would allow counties and municipalities to receive grants to stage electronic takeback events or establish long-term take back/recycling programs. Written comments were submitted by the Information Technology Industry Council (ITI), which represents manufacturers of computers, televisions, printers, and other electronic equipment, and two manufacturers, 3M Touch Systems, Inc. (3M) and Eastman Kodak Company (Kodak). 

 In response to a comment by ITI that the legislation did not make clear which manufacturers are supposed to pay registration fees to the state under the law, the WVDEP stated that the proposed rule specified that two primary criteria must be met before a manufacturer is required to register in West Virginia. Those criteria are: (1) the manufacturer must have manufactured an average of more than 1,000 CEDs per year in a three-year period immediately preceding the initial registration; and (2) the manufacturer desires to sell or lease CEDs in West Virginia. 

ITI also asserted that the legislation indicated that the legislature intended to include only CEDs from consumers and consequently only the manufacturers of devices sold to consumers. The WVDEP disagreed, explaining that manufacturers of CEDs ordinarily do not sell their products directly to the general public, but to distributors and retailers. The WVDEP further explained that as a result manufacturers could not control the ultimate destination of the CEDs manufactured. The WVDEP did agree, however, that there may be some confusion regarding the term “consumer” as it is applied in the statute with regard to the Covered Electronic Devices Takeback Program. Because the term “consumer” is used interchangeably with the term “person” throughout the statute, the WVDEP agreed to add a definition of “consumer” to the proposed legislative rule. The definition that the WVDEP agreed to add will provide that ,a consumer is “a natural person or resident, corporation, firm, partnership, agency, association, organization or society that resides in West Virginia and has legally purchased or is in legal possession of a CED.” 

ITI also requested clarification for the products covered by the “video display device” definition, asserting that the definition could include many devices other than computers, monitors, laptops, and televisions. The WVDEP responded that the rule defines a video display device as an electronic device with an output surface (a screen) that displays or is capable of displaying moving graphical images, regardless of the technology used to attain those images. The WVDEP explained that the definition is intended to accommodate future changes in technology and is not intended to be limited to a few specific products.

ITI along with 3M, a member company which manufactures touch screen monitors for business, industrial, medical, educational, and governmental usage, urged the WVDEP to clarify the exemption for “video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment” based on the design and intended use of the CED. Both ITI and 3M offered the following exemption language:

A covered electronic device that is functionally or physically a part of, or connected to, or integrated within a larger piece of equipment or system designed and intended for use in an industrial, governmental, commercial, research and development, or medical setting, including but not limited to diagnostic, monitoring, control or medical products (as defined under the Federal Food, Drug, and Cosmetic Act), or equipment used for security, sensing, monitoring, anti-terrorism, emergency services purposes or equipment designed and intended primarily for use by professional users.

 

The WVDEP declined to adopt the corrective language suggested by ITI and 3M. The WVDEP interprets the exemption in the definition of “covered electronic device” to be based on the physical characteristic of the CED, not the use of the CED. The WVDEP finds the words “contained within” in the statutory definition are sufficient to convey that the exemption applies only to those CEDs that are too bulky or cumbersome to be reasonably transported to a takeback center or mailed back to the manufacturer.

3M asked the WVDEP to add language to the proposal clarifying that the state website listing manufacturers authorized to sell or lease their products in West Virginia also reference the possibility that industrial/commercial equipments is exempt and therefore a manufacturer selling that equipment may not be listed. The WVDEP agreed to incorporate 3M’s suggestion and also stated that the website would provide that CED manufacturers that manufacture less than 1,000 units, on average, over a three-year period are exempt from the registration policy process. 

Finally, 3M requested that the WVDEP add a small volume exclusion to the proposed rule. To illustrate, 3M explained that a small volume exclusion would allow items such as specialty devices for the impaired to enable them to use computers or view screens on monitors. 3M suggested a graduated fee scale based on estimated market share, rather than the large initial fee, with no graduated fee scale, that WVDEP used for the proposal. 3M also suggested that the regulatory section on manufacturer registration be clarified to refer to 1,000 units sold in West Virginia. The WVDEP missed the point of 3M’s concerns and summarily responded that the statute and the proposed rule currently allow for a small volume exclusion, noting that the registration requirements do not apply to manufacturers that manufacture an average of less than 1,001 CEDs per year in a three year period immediately preceding the initial registration. 

In its comments, Kodak, which manufactures digital picture frames as well as cameras, printers, and other consumer equipment, requested clarification of the products covered by the “video display device” definition that is included within the regulatory definition of CED. While the primary function of the digital picture frames manufactured by Kodak is to display still photographic images, some of its devices have the capability to display video images. Kodak commented that the regulatory definition suggests any “video-enabled” product could also be considered a CED. Kodak maintained that such an interpretation would “broaden the scope of products beyond what other states are regulating as [CEDs]”. Kodak asserted that the Legislature intended “to cover those products that are most prevalent in the waste stream and are already covered by other state electronic recycling laws,” i.e., computers, monitors, and televisions. Disagreeing with Kodak’s view, the WVDEP stated that a digital picture frame meets the criteria of a CED if it has a screen greater than four inches, measured diagonally, and displays or is capable of displaying moving graphical images. The manufacturer of a digital picture frame meets the criteria of a CED and is subject to the registration requirements if the quantity threshold is satisfied and the product is sold in West Virginia. 

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.