Or. Admin. Code § 340-090-0680

Current through Register Vol. 63, No. 10, October 1, 2024

Section 340-090-0680 - Producer Responsibility Organization Coordination

(1) Interim coordination.

(a) For the initial program period, if DEQ receives program plans from multiple prospective producer responsibility organizations, DEQ may appoint an interim coordinator to coordinate among the prospective producer responsibility organizations. The interim coordinator will develop an interim coordination plan that meets the criteria of section 2 of this rule. The interim coordinator will serve in its role until December 31, 2026, or until a coordination plan proposed by the producer responsibility organizations has been approved by DEQ, whichever comes sooner.

(b) From March 31, 2024, onward and prior to the approval by DEQ of a coordination plan developed by the producer responsibility organizations, DEQ may assign interim coordination tasks, including but not limited to those listed in sub-section (c) of this rule, to a producer responsibility organization or to a willing applicant producer responsibility organization. When assigning tasks to a producer responsibility organization DEQ will consider the following criteria during the program plan review:

(A) The qualifications of the producer responsibility organization including experience specific to the accomplishment of each interim coordination task;

(B) The producer responsibility organization's access to financial resources and progress toward securing 10% minimum market share;

(C) The initial producer membership of the producer responsibility organization; and

(D) The quality of the program plan submitted by the producer responsibility organization, including the likelihood that plans for interim coordination activities will achieve milestones.

(c) DEQ may assign interim coordination tasks to approved producer responsibility organizations, or to willing applicant producer responsibility organizations. Approved producer responsibility organizations must begin the interim coordination tasks upon DEQ assigning the task. The tasks required by this subsection include the following:

(A) Setting up single accounting point of contact and invoice processing system for required producer responsibility organization compensation payments, including:

(i) Payment of contamination management fees (ORS 459A.920) and processor commodity risk fees (ORS 459A.923) to commingled recycling processing facilities;

(ii) Compensation to (and associated negotiation with) local governments for service expansion on the basis of the needs assessment (ORS 459A.890(5) and (8)).

(iii) Compensation to local governments for expenses besides service expansion (ORS 459A.890 not including subsection (5)); and

(iv) Compensation to existing depots for service expansion to accommodate products on the producer responsibility organization depot list (ORS 459A.896(1)(a)).

(B) Setting up a system to reconcile expenses amongst producer responsibility organizations, in proportion to modified market share as required by OAR 340-090-0700(2).

(C) Establishing and maintaining a depot collection system (per ORS 459A.896(1)) that meets collection targets, convenience standards and performance standards established by the Environmental Quality Commission.

(D) Developing and issuing educational materials that promote the uniform statewide collection list and other requirements pursuant to ORS 459A.893.

(d) The interim coordinator will conduct the following tasks in consultation with DEQ and the producer responsibility organizations:

(A) Calculate the interim, preliminary, and final modified market share of each producer responsibility organization as required by OAR 340-090-0700(2)-(4).

(B) Define the standard product categorization to be used in producer responsibility organization membership fee structures.

(e) The interim coordinator will develop an interim coordination plan meeting the requirements of section 2 of this rule. The interim coordinator will review the draft plan with all prospective producer responsibility organizations and with DEQ, and then produce an updated version for review and approval by DEQ. Once approved by DEQ, producer responsibility organizations must follow the interim plan until it is replaced with a coordination plan submitted jointly by producer responsibility organizations and approved by DEQ.

(f) DEQ's costs in appointing and overseeing an interim coordinator are costs of administering the provisions ORS 459A.860 to 459A.975.

(2) Standards and requirements for coordination plans.

(a) A producer responsibility organization is responsible for the implementation of an approved coordination plan.

(b) A coordination plan must include:

(A) Identification of the producer responsibility organization coordinating body;

(B) A process for designating a new coordinating body and notifying DEQ in advance;

(C) A process for resolving disputes between producer responsibility organizations and between producer responsibility organizations and local governments and their service providers;

(D) A process by which a producer responsibility organization or multiple producer responsibility organizations will assume responsibilities to implement a coordination plan should the coordinating body be unable to implement the coordination plan;

(E) A process to address coordination in the event a producer responsibility organization ceases implementation of a producer responsibility program; and

(F) A plan for how the producer responsibility organizations will coordinate to ensure that their obligations under provisions ORS 459A.860 to 459A.975 are met.

(c) In reviewing a coordination plan submitted for approval, DEQ will consider whether the coordination plan will ensure:

(A) Achievement of the statewide plastics recycling goal established under ORS 459A.926, including development of combined plastic recycling rate projections across all producer responsibility organizations;

(B) Education that promotes the uniform statewide collection list as provided under ORS 459A.893;

(C) A Single-point-of-contact accounting that provides timely funding, reimbursement, and payments required under ORS 459A.860 to 459A.975, including funding, reimbursement and payments related to ORS 459A.890, ORS 459A.896, ORS 459A.920, and 459A.923;

(D) Processes to allocate costs among producer responsibility organizations that are proportional to modified market share as required by OAR 340-090-0700(2);

(E) A consistent statewide system to ensure all Oregon residents can easily identify, understand, and access services provided through ORS 459A.860 to 975, including through consistent messaging and branding, and through a single website listing the services provided by all producer responsibility organizations under ORS 459A.896;

(F) Assurance that all covered products collected for recycling are delivered to responsible end markets and managed according to Oregon's materials management hierarchy, as required by ORS 459A.896(2);

(G) A single point of contact for the coordination body and for each PRO, respectively, for communicating with the Recycling Council and DEQ in coordinated fashion, when appropriate, on topics including Recycling Council recommendations and material lists;

(H) Establishment of a recycling depot system that meets collection targets, convenience standards, and performance standards established in OAR 340-090-0640, OAR 340-090-0650, and OAR 340-090-0660;

(I) A process for aggregating data submitted by producer responsibility organizations to calculate and publish modified market shares, identify and publish a list of large producers, and report market share data to DEQ; and

(J) A list of standard product categories that the producer responsibility organizations will use to establish their membership fees pursuant to ORS 459A.884.

(3) Rules establishing processes for submittal, review, approval or rejection, amendment, and revocation of coordination plans.

(a) Producer responsibility organizations must jointly submit a coordination plan to DEQ by February 1, 2026. Once approved, this plan will replace the interim coordination plan described in section 1 of this rule.

(b) DEQ will approve a coordination plan if it determines that the plan adequately meets all requirements of section 2 of this rule.

(c) The coordination plan review period will consist of the following phases:

(A) DEQ shall approve, approve with conditions, or reject the submittal within 90 days of receiving it. If DEQ rejects the submittal, DEQ will provide comments that discuss the reasons for the rejection.

(B) If DEQ rejects the submittal, the producer responsibility organizations must jointly submit a revised plan no later than 60 days from the date of rejection. The revised submittal must address DEQ's comments on the initial submittal.

(C) DEQ shall approve, approve with conditions, or reject the revised submittal within 90 days of receiving it. If DEQ rejects the revised submittal, DEQ may do the following:

(i) Request that the producer responsibility organizations make further revisions to the plan;

(ii) Direct the producer responsibility organization to make specific revisions to the plan; or

(iii) Issue an order to direct implementation of an alternative coordination plan pursuant to section 4 of this rule.

(D) The producer responsibility organizations must jointly submit a second revised plan, pursuant to paragraph (c)(C)(i) or (ii) of this section, no later than 30 days from the date of second rejection.

(E) If the second revision is not timely or does not meet the coordination plan requirements of section 2 of this rule to DEQ's satisfaction, DEQ may direct specific revisions or issue an order to direct implementation of an alternative coordination plan pursuant to section 4 of this rule. Failure to submit an approvable plan under paragraph D of this this subsection is a violation of these rules for purposes of enforcement. If DEQ directs revisions, the producer responsibility organizations must implement the revisions or request a hearing as provided in ORS chapter 183.

(d) Producer responsibility organizations may only change an approved coordination plan through plan amendments. Producer responsibility organizations must submit a coordination plan amendment to DEQ for approval at least 45 days before the change is to take effect. DEQ will approve or reject the amendment request within 45 days of receiving the request. DEQ may, for good cause, allow the producer responsibility organizations to submit an amendment request less than 45 days before the change is to take effect.

(e) DEQ's rejection of a coordination plan or plan amendment does not relieve the producer responsibility organizations or the coordination body from continuing to implement an approved coordination plan.

(f) In accordance with the applicable provisions of ORS chapter 183 relating to contested case proceedings, DEQ may issue an order to suspend, amend, or revoke a coordination plan in whole or in part if it determines that implementation of the coordination plan would:

(A) Present a risk to the environment or public health, or

(B) Prevent a producer responsibility organization from implementing its producer responsibility program plan in compliance with ORS 459A.860 to 459A.975.

(4) DEQ issuance of an order requiring a coordination plan.

(a) If no coordination plan is submitted within the timelines specified in section 3 of this rule, or if DEQ rejects a revised coordination plan pursuant to section 3 of this rule, DEQ may require the producer responsibility organizations to implement a coordination plan by order.

(b) The order will provide a start date and include any requirements DEQ determines are necessary to implement ORS 459A.860 to 459A.975 and related rules. The order may direct a producer responsibility organization to undertake the role of coordinating body and coordinate the implementation of the order and require that all other producer responsibility organizations collaborate with the coordinating body on implementation of the plan.

(c) Failure to adequately implement or comply with an order issued under this section is a violation of these rules.

(d) Within 20 days of the issuance of an order under this section a producer responsibility organization may request a hearing as provided in ORS chapter 183. If a producer responsibility organization requests such a hearing under ORS chapter 183 the producer responsibility organizations shall continue to implement the order pending the outcome of legal proceedings.

(5) Coordination rules for the entry of new producer responsibility organizations.

(a) If a new producer responsibility organization enters the program in 2026 or later, the approved producer responsibility organizations coordination plan must be updated by plan amendment. If no producer responsibility organization coordination plan has been approved by DEQ, one must be submitted and finalized within one year, subject to the review process outlined in rule OAR 340-090-0680(3). The timelines and procedures provided in section 1 for interim coordination will apply to a new producer responsibility organization before 2026.

(b) If an updated producer responsibility coordination plan is not approved within the one year DEQ may require the implementation of a coordination plan by order pursuant to section 4 of this rule.

(c) During the plan development and review phase under subsection (a), DEQ may revoke the existing coordination plan and reinstate interim coordination pursuant to section 1.

Or. Admin. Code § 340-090-0680

DEQ 18-2023, adopt filed 11/17/2023, effective 11/17/2023

Statutory/Other Authority: ORS 459A.975 & 468.020

Statutes/Other Implemented: ORS 459A.860 - 459A.975