Or. Admin. Code § 340-090-0840

Current through Register Vol. 63, No. 12, December 1, 2024

Section 340-090-0840 - Covered Products

(1) Food serviceware and packaging. For purposes of ORS 459A.863(7) and (18):

(a) Packaging includes materials used in storage. A storage item is an item purchased empty and used for storage of other material, including but not limited to file boxes and folders, moving boxes, plastic storage bags including garbage bags, food containers for perishable or non-perishable foods, and plastic storage containers for durable items including large bins with and without lids.

(b) Packaging includes service packaging. Service packaging is packaging that is filled at the point of sale for the purpose of transferring goods to a consumer. Service packaging includes but is not limited to:

(A) Single-use shopping bags, including checkout, produce, and bulk food bags;

(B) Bags, wraps, single-use trays and associated items such as paper used to separate slices of cheese, and used by a retailer for packaging cheese, tofu, produce, meat, and fish;

(C) Trays provided to a consumer for containing multiple plants purchased at a nursery; and

(D) Bags or envelopes used to contain screws, nails and other bulk fasteners at a hardware store.

(c) Packaging includes materials used for shipping or moving. A shipping or moving item is used for shipping or moving products and includes but is not limited to boxes, envelopes, labels, bubble wrap, packing peanuts, packing paper and packing tape.

(d) Food serviceware includes wraps sold directly to consumers, including but not limited to aluminum foil, film wrap, wax paper, and parchment paper.

(e) Food serviceware is used to contain or consume food or drink that is ready to eat. Food serviceware is sold empty or unused to a retailer, a dine-in food establishment or a take-out food establishment, regardless of whether the item is used to prepackage food for resale, is filled on site for food ordered by a customer or is resold as is. As used in this Subsection, ready to eat food is prepared or cooked in advance, with no further cooking or preparation required before consumption.

(2) The following are not covered products:

(a) Packaging that is used for the long-term (five or more years) storage of a durable good as defined by the Bureau of Economic Analysis, United States Department of Commerce, in its online glossary at https://www.bea.gov/help/glossary/durable-goods.

(b) Packaging of the following medical devices:

(A) Class II medical devices, as defined in the Federal Food, Drug, and Cosmetics Act at 21 U.S.C. Sec. 360(c), that are sold labeled as sterile and for which a 510(k) premarket notification pursuant to 21 U.S.C. Sec. 360(k) has been cleared by the Food and Drug Administration.

(B) Class III medical devices as defined in the Federal Food, Drug, and Cosmetics Act at 21 U.S.C. Sec. 360(c).

(c) Packaging used in healthcare facilities, as defined in ORS 442.015, for the management of infectious waste as defined in ORS 459.386.

(d) Packaging of the following agricultural chemicals:

(A) Pesticides classified as restricted-use under the Federal Insecticide, Fungicide and Rodenticide Act at 7 U.S.C. Sec. 136a and 40 CFR part 152, subpart I, and sold to licensed commercial applicators.

(B) Returnable or refillable intermediate bulk containers containing commercial-use pesticides, fertilizers and agricultural amendments.

(C) Returnable or refillable asset totes, drums, and kegs containing commercial-use pesticides, fertilizers and agricultural amendments.

(D) Rigid HDPE packaging of commercial-use pesticides, fertilizers, adjuvants, surfactants, and agricultural amendments produced by members of the Ag Container Recycling Council or ACRC and eligible for collection by ACRC.

(i) This exemption does not apply in any year that ACRC fails to submit data to DEQ, in a form and manner provided by DEQ, that demonstrates ACRC's maintenance of a consistent collection rate and standard of convenience compared with a baseline year of 2023, and that ACRC is recycling the containers at responsible end markets.

(ii) Once every five years and beginning no later than in 2027, ACRC must corroborate its self-reporting by arranging and paying for a third-party audit of its collection program in Oregon and providing results to the department.

(e) Reusable and refillable pressurized cylinders of the following types:

(A) Pure hydrogen or oxygen cylinders of any size;

(B) Acetylene cylinders, 10 cubic feet and larger in size; and

(C) Carbon dioxide cylinders, 5 lbs. and larger in size.

(3) For purposes of ORS 459A.869(13), an exemption for products collected and recycled outside of Opportunity To Recycle:

(a) Collection services not provided under the opportunity to recycle include but are not limited to the following.

(A) Any collection from a commercial generator that is not used by a local government to comply with ORS 459A.005 or .007, including:

(i) Commercial generators collecting and sending materials directly to end markets and exempt from the requirements of ORS 459A.005 and .007 per ORS 459A.075; and

(ii) Collection points that accept materials from consumers and send them directly to end markets.

(B) Any collection of materials from residential generators that is not used by a local government to comply with ORS 459A.005 or .007 and that does not send materials to a commingled recycling processing facility before they go to end markets.

(b) Separation means separation of two or more commingled materials from one another or removal of contamination from a material that was collected source segregated.

(c) A material is recycled at a responsible end market if the end market has been verified as responsible by a producer responsibility organization pursuant to OAR 340-090-0670(3)(f) or certified responsible through third-party certification from an Environmental Quality Commission-approved program pursuant to ORS 459A.955(2)(h)(A)(ii) and OAR 340-090-0670(3)(a)(B). The certification, verification, or the most recent renewal audit of either the certification or the verification conducted pursuant to OAR 340-090-0670(3)(g) must have occurred within a calendar year of the producer requesting the exemption.

(d) Materials collected through a recycling collection service provided under ORS 459A.896(1) and used by a producer responsibility organization to satisfy the convenience standards are not eligible for the exemption. This applies both to physical collection points counted by a producer responsibility organization toward the convenience standard at OAR 340-090-0640(2) and to collection applied by a producer responsibility organization toward alternative compliance to convenience standards pursuant to OAR 340-090-0640(6).

Or. Admin. Code § 340-090-0840

DEQ 20-2024, adopt filed 11/24/2024, effective 11/24/2024

Statutory/Other Authority: ORS 459A.863

Statutes/Other Implemented: ORS 459A.863