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Washington State Set to Issue Aggressive Rules for Recycling Electronic Waste

August 2, 2006

Manufacturers, retailers and consumers of electronics – from laptops to televisions – will soon be required to comply with a new set of state regulations in Washington mandating recycling of electronic wastes (“E-wastes”). On July 19, 2006 the Washington State Department of Ecology (“Ecology”) proposed regulations to implement the “Electronic Product Recycling Law”, Chapter 70.95N RCW, which was enacted by the Washington State Legislature earlier this year. A copy of the proposed rules can be found at: http://www.ecy.wa.gov/laws-rules/activity/erecycle.html.

Washington State is just the fourth state in the country to adopt legislation mandating the recycling of consumer electronic products. When fully implemented, the law will require manufacturers of computers, computer monitors, laptops, televisions, and other covered consumer electronic products to provide no-cost recycling services to consumers throughout the state. Ecology is developing implementing regulations in two stages to coincide with deadlines imposed by the new law. First, manufacturers must register all covered electronic products (“CEPs”) by January 1, 2007. RCW 70.95N.040. The proposed rules set out the registration process for manufacturers, as well as registration for collectors, and transporters of electronic products. This first stage also covers rules on administrative fee structure, brand labeling, and enforcement and penalties. . Final rules for this first, registration stage are expected to be filed with the state Code Reviser in November 2006, with a December 2006 effective date.

The second stage of rulemaking, which has not yet commenced, will focus on the development of recycling plans by product manufacturers. Under the law, manufacturers must elect whether they intend to participate in a statewide plan, known as the “standard plan”, or to develop their own recycling plan, known as an “independent plan.” RCW 70.95N.040(4)(d). The initial “standard plan” and all “independent plans” must be submitted to Ecology for review by February 1, 2008. RCW 70.95N.060. Rules implementing this requirement and developed in this second stage will provide detail on the requirements for the recycling plans, as well as performance standards for processors (plan implementers), collectors, and transporters of electronic products. Second stage rules are expected to be issued in April 2007. A final rule would be issued August 2007, with a September 2007 effective date.

First Stage Proposed Rules

A. Required Brand Labeling

Ecology’s proposed regulations would require that after January 1, 2007 all electronic products sold in Washington State must contain a permanently affixed and readily visible label indicating the manufacturer’s brand name. In-state retailers in possession of unlabeled products on January 1, 2007 would be allowed to exhaust their stock. The regulations also prohibit manufacturers and retailers from selling a CEP in the state unless the brand name of that product is on Ecology’s “Manufacturer Registration List for the Electronic Product Recycling Program.” WAC 173-900-040.

B. Manufacturers Registration Requirements

All manufacturers of covered electronic products must register with Ecology prior to January 1, 2007. The proposed rules detail the information that must be provided to Ecology on the registration form. This information includes the manufacturer’s name, contact and billing information and whether the manufacturer intends to participate in a “standard” or “independent” plan. In addition, manufacturers are required to list all brand names that they own, including both brand names currently in use and brand names no longer in use. Manufacturers must also provide a description of the word, phrase or logo used as the brand label and describe the manner in which it may appear on electronic products. WAC 173-900-200.

Ecology will maintain a list on its website called the “Manufacturer Registration List for the Electronic Product Recycling Program.” The list will identify manufacturers by name and brand and will contain information on registration status. WAC 173-900-200(11).

C. Administrative Fees

Fees covering Ecology’s cost of administering the electronic product-recycling program will be charged to each registered manufacturer. The proposed regulations would create a tiered fee system that distributes administrative fees on a sliding scale and that is based on a manufacturer’s percentage of total market share of CEPs sold in the state. Ecology will use national market data to assign manufacturers to one of the five tiers. Ecology will attempt to distribute fees to each tier based upon the number of manufacturers and the revenue needed to cover Ecology’s costs. The proposed rules contain provisions for manufacturers to request tier reassignment. WAC 173-900-210.

D. Transporter/Collector Registration

The proposed rules also create a mandatory registration system for all transporters and/or collectors of covered electronic products in Washington. Transporters are defined as an entity that “transports covered electronic products from collection sites or services to processors or other locations for the purpose of recycling, but does not include an entity or person that hauls their own unwanted electronic products.” WAC 173-900-030. Collectors are defined as “an entity that is licensed to do business in Washington State and that gathers unwanted covered electronic product from households, small businesses, school districts, small governments, and charities for the purpose of recycling . . ..” Id. Transporters and collectors have until September 1, 2008 to register with Ecology. Information required as part of the registration includes contact and location information, business license information, permit information, description of services provided, and description of geographic areas served. Ecology will maintain a list of transporters and collectors and their registration status on its website. WAC 173-900-300.

E. Penalties

The rules proposed by Ecology in this first stage of rulemaking also include a penalty and enforcement section. This section outlines the types of violations that can be levelled against manufacturers, retailers, collectors, and transporters. Entities in violation of the regulations will first be issued a written Notice of Violation. If the violation is not corrected within thirty days Ecology may assess civil penalties of up to one thousand dollars for the first violation, and up to two thousand dollars for subsequent violations. WAC 173-900-600 through 630.

The disposal of obsolete consumer electronic products is an environmental issue of growing concern not only in Washington State but across the entire Country. Over 20 states have or are considering enacting legislation. Of the four states that have adopted legislation, the Washington program will have the most far reaching and comprehensive rules. Washington’s E-waste law creates an entirely new, relatively complex regulatory scheme. Unlike other states, however, the program itself is to be implemented largely by the private sector, without the express involvement of local government, which usually plays the central role in solid waste issues. The new program is designed to be developed, driven, and paid for by the manufacturers of consumer electronic products.

Consumer advocates and environmental groups have strongly supported the Washington law. “It is the strongest [U.S.] law so far [in that it] establishes that manufacturers have a responsibility for both collecting and recycling their products, “according to Barbara Kyle, national coordinator of the Computer TakeBack Campaign.

However, not everyone agrees that Washington has struck the right balance with respect to who should bear the burden and the financial cost of recycling electronic waste. The Consumer Electronics Association (“CEA”) opposed the Washington law arguing that the “vast majority of consumer electronics manufacturers prefer the ARF model” or advanced fee recovery model that passes the costs directly on to consumers. CEA is also concerned about the ad hoc approaches being taken by states in developing E-Waste programs, and would prefer a federally run program.[1]

Washington’s new E-Waste law will present new administrative and financial obligations on manufactures desiring to sell their consumer electronic products in the State. Because of these obligations and the controversy surrounding the enactment of the Washington law, the regulations implementing the new legislation will be watched closely around the country. Ecology has scheduled a series of public hearings around the state to receive comments on the draft rules. Information about the hearings and how to submit written comments to Ecology can be found at: http://www.ecy.wa.gov/laws-rules/erecycling/p0607.pdf. Comments must be received by 5:00 PM on September 7, 2006.

Marten Law Group will submit comments on the regulations and is working with affected parties.

For a summary of the requirements of the new law see the previous article in this publication, Washington Legislature Mandates Mandatory Recycling of Consumer Electronics: Bill Sent to Governor, http://www.martenlaw.com/news/?20060315-electronics-recycling.

[1] Tekla S. Perry, Who Pays for E-Waste?

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