Electronics: Toxic Substances Ripe For Regulation

Saturday, April 1, 2006 - 01:00

Introduction

A study conducted by the National Safety Council reports that over 10,000 computers and televisions become obsolete in California alone each day . As a result, over 6 million obsolete computers and televisions are "stockpiled" in California households. This problem is not unique to California, or even to the United States. As electronic technology improves, old equipment throughout the world becomes obsolete at an alarming rate. Disposing of electronics can be problematic because these products often contain toxic substances, including cadmium, lead, mercury, chromium, and brominated flame retardants. For example, a typical computer monitor may contain more than 6% lead by weight.

In recognition of the hazards associated with disposing of electronic products that have reached their end-of-life, legislators have begun tackling the issue of how to dispose of the growing volume of such items, including televisions, personal computers, and cell phones.

Regulations In The United States

Regulation of electronic waste in the United States is complicated by the lack of a uniform federal approach. Current federal regulations do not restrict landfilling of used electronics and do not prevent those products from being exported to other countries, thereby threatening the environment abroad. Hence, state and local governments can be expected to adopt varying product stewardship initiatives through their individual solid waste management programs, risking confusion and conflicting requirements around the country.

Federal Regulations

At the federal level, used electronics are regulated as hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA). However, RCRA regulations do not reach households and small quantity generators. Furthermore, EPA does not have authority to mandate that electronics be recycled or reused, nor does the agency have the power to establish mandatory national regulations. Therefore, many of the federal efforts dealing with disposal of used electronics are voluntary. For example, EPA has designed a voluntary partnership with industry, called the Design for the Environment Program (DfE). The purpose of DfE is "to evaluate the life-cycle environmental impacts of flat panel displays (FPDs) and cathode ray tubes (CRTs) by combining Cleaner Technologies Substitutes Assessment (CTSA) and life-cycle assessment (LCA) approaches."

Within the last year, however, Congressional interest has increased and new legislation has been introduced to encourage electronics recycling. For example, in January 2005, H.R. 320 was introduced, which would provide a tax credit to encourage electronic recycling. Also in January 2005, the National Computer Recycling Act (H.R. 425) was proposed, which would require EPA to establish a grants program to encourage municipalities, individuals, and organizations to form electronic waste recycling programs.

Ironically, the Postal Service may take the federal lead, providing collection points for obsolete electronic equipment at the agency's 38,000 outlets, from which the equipment would be mailed to recyclers or back to the manufacturers, at their cost, incidentally providing a significant revenue stream for the agency.

State Regulations

On the state level, many different approaches have been taken. Indeed, the "patchwork" of state regulations may cause compliance problems for manufacturers, retailers and consumers. For example, a manufacturer might be forced by one state to collect recycling fees at the time of product sale, while another state might require the same manufacturer to pay for recovery when its products reach their end-of-life. Regulation of a national problem on the state and local level will likely cause confusion and conflicting requirements.

Maine and California have been at the forefront of electronic recycling. New legislation took effect in Maine on January 1, 2006, requiring electronics manufacturers to create consolidation points to which municipalities can bring computers and televisions discarded by their citizens. Each manufacturer then becomes responsible for managing the recycling of its own branded products, sharing the cost of "orphan" products. California enacted the Electronic Waste Recycling Act to manage electronic waste and to phase out the use of hazardous components in new products. In July, 2004, California consumers began paying a fee added to the cost of new electronic products to cover the costs associated with free electronic waste recycling in California. The Act affects products containing CRTs, flat panel screens, and video display devices greater than 4 inches. Consumers must be informed by manufacturers where and how to return, recycle, and dispose of electronic devices. California also passed the Cell Phone Recycling Act of 2004, requiring cell phone retailers to provide free collection of used cell phones by July 1, 2006.

At least a dozen other states, including New Jersey, are considering similar legislation. In New Jersey, which already has six licensed electronics "demanufacturers," the legislative battleground has been over when and how to impose the costs of electronics recycling, but all proposals place the ultimate cost burden on the consumer.

Regulations In Europe

While the United States has yet to enact any federal legislation regulating electronic waste disposal, several other countries have already moved ahead and passed such guidance. The European Union (EU) was the first to act in this regard. As a result, several other countries, particularly those in Asia with high electronics manufacturing output, have mimicked these regulations, in order to ensure that their products remain marketable in the EU.

Product stewardship efforts have been in effect in Europe for quite some time. For example, Germany issued draft legislation in 1990 requiring auto manufacturers to take back scrap from used vehicles. The EU also passed directive 94/62/EC, requiring member states to "introduce systems for the return and/or collection of used packaging." In 2003, the EU adopted the Directive on Batteries and Accumulators and Spent Batteries and Accumulators, requiring the creation of free collection systems for batteries. This Act also bans the landfilling or incineration of automotive and industrial batteries. However, in Germany, a national ordinance places total responsibility for end-of-life recycling or disposal upon battery manufacturers.

The EU has also adopted two new electronic waste initiatives, known as RoHS and WEEE. RoHS, the Restriction of Hazardous Substances Directive (2002/95/EC), will regulate the use of mercury and other hazardous substances in electrical and electronic equipment, beginning July 1, 2006. Once this regulation becomes effective, electric and electronic equipment may not contain lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls or polybrominated diphenyl ethers. There are some exceptions to this ban, however, notably "lead in glass of cathode ray tubes, electronic components and fluorescent tubes."

The second EU initiative, WEEE, the Waste Electrical and Electronic Equipment Directive (Directive 2002/96/EC), adopts the polluter pays principle by requiring producers of electronic equipment to finance the collection, treatment, recovery and environmentally sound disposal of their products. This regulation became effective on August 13, 2005 and applies to large and small household appliances, IT and telecommunications equipment; consumer equipment; lighting equipment; electrical and electronic tools; toys, leisure, and sports equipment; medical devices; monitoring and control instruments; and automatic dispensers. The EU also set targets for the collection rates per inhabitant and by the type of electrical equipment.

Future Issues

As the volume of electronic waste increases at staggering rates, many additional issues will need to be addressed by manufacturers, state legislators, and nations throughout the world. The primary challenges for manufacturers will ultimately become how to reduce the hazardous content of their products and how to remain compliant with conflicting requirements in different states or countries. Currently, many countries and manufacturers are looking to the EU for guidance and are adopting its standards to remain globally competitive. China, for example, has chosen to mimic the EU's RoHS and WEEE directives, but its regulatory policy is still evolving. Similarly, South Korean manufacturers are voluntarily complying with the EU's directives. As this trend spreads, manufacturers who distribute products world-wide will be forced to become compliant with the EU's standards in order to remain competitive in all markets.

The results of these initiatives are likely to be manifested in several ways: (1) additional markets for obsolete products, such as televisions and monitors ("demanufacturers," recycling centers, repair shops, etc.) are likely to emerge; (2) companies are likely to opt to lease rather than buy electronic products in order to reduce their waste and disposal obligations; (3) effective voluntary take-back programs are likely to emerge; (4) product design and material selection are likely to be increasingly driven by recycling requirements; (5) product end-of-life regulations are likely to be extended to other classes of products containing hazardous components, beyond televisions, computers, and cell phones to include printers, copiers, refrigerators, washers and dryers, other consumer goods, and packaging; and (6) a national program requiring the recycling of obsolete electronic products is highly likely to emerge in the United States; in the absence of such a program, the EU directives are likely to become the de facto domestic standards.

The blistering pace of innovation in electronic products will continue to accelerate the accumulation of electronic waste. Given the complicated nature of dealing with the disposal of electronics, it is clear that there is not just one answer on how to deal with the problem. However, it is clear that as the world moves further into the electronic age, sound policies and practices need to be implemented to deal with this mounting problem. Trying to establish a cohesive solution that will not interfere with international trade opportunities will clearly become a guiding concern behind future legislative action.

William H. Hyatt, Jr. is an Environmental Partner in the Newark, New Jersey office of Kirkpatrick & Lockhart Nicholson Graham LLP. Sandra Y. Snyder is formerly a summer associate and will begin as a first-year associate in KLNG's Newark office in September 2006.

Please email the author at whyatt@klng.com with questions about this article.