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Washington State Electronic Waste Recycling Rules Go Into Effect

November 7, 2007

Beginning this week, manufacturers and retailers of televisions, laptop and desktop computers, and computer monitors will be required to comply with the Washington Department of Ecology (Ecology)'s second set of detailed electronic waste (E-waste) recycling rules.[1] In March 2006, Washington joined a growing number of states which require manufacturers of certain electronic products to provide free E-waste recycling services for households, small businesses, local governments, and charities.[2] While local governments are usually responsible for solid waste issues, Washington’s E-waste recycling law creates an entirely new, relatively complex regulatory scheme intended to be implemented and paid for largely by the private sector.

Eight other states have established E-waste recycling programs, and twenty-three states introduced E-waste bills during the 2007 legislative session.[3] With the exception of California’s program, manufacturers and retailers of certain types of electronic products (generally televisions, computers, and computer monitors) are responsible for funding E-waste recycling programs, and in some cases like Washington, they are responsible for implementing programs that provide an extensive network of E-waste collection points. In response to the growing patchwork of inconsistent state-level requirements, the Electronic Industries Alliance (EIA), a coalition of electronics manufacturers, is advocating for uniform federal standards.[4] To date, however, such efforts have apparently gained little traction on Capitol Hill, so electronic manufacturers and retailers will continue to navigate the rapidly expanding labyrinth of state-level programs – at least for the time being.

National Trends in E-Waste Recycling

Under federal solid waste regulations, electronic equipment containing cathode ray tubes (CRT) or mercury are considered hazardous waste; however, those regulations have done little to stem the flow of E-waste into landfills because households and businesses that generate small quantities of CRTs are generally exempted from such regulations.[5] Indeed, the Environmental Protection Agency (EPA) estimates that nearly 2 million tons of E-waste are deposited in landfills across the United States annually, while only 345,000 to 379,000 tons of E-waste are recycled.[6]

In response to concerns regarding the potential leaching of mercury and other toxic substances from E-waste in landfills, at least nine states have established mandatory E-waste recycling programs.[7] California passed the nation’s first mandatory E-waste recycling law in 2003.[8] The California E-waste program is unique because it is run by state agencies and funded by consumers who pay a small recycling fee ($6 - $10) at the point of sale when purchasing televisions, monitors, and laptops (but not desktop computers/CPUs). The state collects the recycling funds and uses them to reimburse recyclers and collectors who submit receipts showing they have collected covered electronic products for recycling. Manufacturers do not participate in the program and have no obligation to label, collect, or otherwise recycle covered products.

Unlike the California model, Washington and seven other states have established E-waste recycling programs which require significant funding and participation from manufacturers and retailers. These programs, however, are not built on a uniform model. Despite similar funding mechanisms, each state program requires different levels of participation from the manufacturers, retailers, and consumers.[9] The varying, and often inconsistent, requirements pose significant compliance challenges for nation-wide manufacturers and retailers, a problem that may be exacerbated as other jurisdictions consider adopting their own E-waste programs. While EIA has advocated for a uniform national standard combining features of both the California “consumers pay” model and the other “manufacturers pay” models, Congress has not proposed legislation nor has EPA announced rulemaking to date with a scope comparable to the state programs or EIA’s proposal.[10]

Washington’s E-Waste Program

Washington enacted its mandatory E-waste recycling program in 2006, and Ecology has developed implementing regulations in two stages. Under the Phase 1 E-waste rules, which Ecology issued in November 2006, all manufacturers of “covered electronic products” or “CEPs” were required to register with Ecology beginning in January 2007.[11] CEPs include televisions and monitors that measure 4” or more diagonally, and laptop and desktop computers.[12] The Phase 1 rules prohibit all retailers (regardless of size)[13] from selling CEPs in Washington unless they are marked with a permanently affixed and readily visible label indicating the manufacturer’s brand name.[14] Finally, the Phase 1 rules established a tiered fee system that distributes the costs of administering the E-waste program on a sliding scale based on a manufacturer’s percentage of CEPs sold in the state.

Ecology’s recently published Phase 2 rules, which went into effect on November 5, 2007, focus on mandatory recycling plans and performance standards for businesses that sell CEPs or collect, transport, or process CEPs for recycling. By February 1, 2008, CEP manufacturers must submit a recycling plan and indicate whether they will participate in the state-wide “Standard” recycling program, or whether they will individually or collectively develop an “Independent” recycling program. The Standard Plan and Independent Plans require manufacturers to collect and recycle a certain percentage, by weight, of CEPs. A manufacturer’s target obligation is known as an “equivalent share,” which is based on the total volume, by weight, of all CEPs recycled under the Act. Ecology has calculated equivalent shares for 2009 based on information collected from other states that have implemented E-waste recycling programs.[15] Starting in 2010, Ecology will assign new equivalent shares on an annual basis.

Rule-Making Tensions

Ecology received significant comments from the private sector and environmental NGOs during the rulemaking process.[16] One of the primary points of contention from the manufacturing industry revolved around the definition of “manufacturers.” Washington’s Act defines “manufacturer” as, inter alia, an entity that owns a brand of covered products sold in the state – regardless of whether they actually manufacture the products or outsource manufacturing to a third-party.[17] Some manufacturers expressed concern that the Act reaches too far by holding brand owners financially responsible for recycling and potentially liable for potential violations of the Act (such as labeling requirements) by third-parties that actually manufacture and import CEPs. On the other hand, environmental NGOs expressed concern that performance standards for E-waste “processors” do not extend down to secondary and tertiary processors, so the processor standards could potentially be avoided by exporting E-waste out of state or overseas.

Penalties

Finally, the Phase 2 rules also establish a broad range of penalties for CEP manufacturers, retailers, collectors, transporters, and processors. For example, Ecology may fine a manufacturer up to $10,000 plus additional weight-based amounts for failing to recycle the required weight of CEPs. Ecology may also fine manufacturers up to $2,000 for each registration, labeling, or other plan violation.[18] Retailers, regardless of whether they are a “big box” retailer, internet retailer, or local independent business, face potential fines up to $1,000 per violation for selling CEPs without proper labeling. Similarly, Ecology may fine collectors, transporters, and processors up to $2,000 for failing to register or for violating performance standards.

Conclusion

Ecology's new Phase 2 E-waste recycling regulations went into effect on November 5, 2007, and the next implementation benchmark is the February 1, 2008 deadline for submitting recycling plans to Ecology. Manufacturers will be required to implement the Standard Plan and any Ecology-approved Independent Plans by January 1, 2009. In other words, in less than fourteen months, Washington will have a fully operational, state-wide E-waste recycling program funded entirely by the private sector.

In the absence of uniform federal standards, jurisdictions considering E-waste regulations must consider whether their programs should be funded by consumers (as in California) or by the private sector (as in Washington and other states). Furthermore, future E-waste rulemaking efforts will likely present issues similar to those raised in Washington, including the scope of manufacturer responsibility and efforts to ensure that E-waste is properly managed as it is moves through the recycling process.

[1] Ecology’s new E-waste rules are available at: http://www.ecy.wa.gov/biblio/0707042.html.

[2] The Electronic Waste Recycling Act is codified at Chapter 70.95N Revised Code of Washington.

[3] See “Texas and Oregon Legislatures Pass Electronics Recycling Bills” (May 30, 2007).

[4] EIA Legislative Framework for Electronic Recycling.

[5] See Code of Federal Regulations, Title 40, Part 261.

[6] http://www.epa.gov/epaoswer/hazwaste/recycle/ecycling/index.htm.

[7] California, Connecticut, Maine, Maryland, Minnesota, North Carolina, Oregon, Texas, and Washington have passed E-waste recycling legislation.

[8] See California’s Electronic Waste Recycling Act of 2003 (Senate Bill 20). The California legislature amended and clarified SB-20 in September 2004 (Senate Bill 50).

[9] Please see http://www.e-takeback.org/docs%20open/Toolkit_Legislators/state%20legislation/Detailed%20State%20Law%20Comparison%20ALL.pdf for a state-by-state comparison of E-waste programs.

[10] In January 2007, Congressman Mike Thompson (California) introduced HR 233, which would establish recycling fees on computers, monitors, and other electronic products. EPA would use the funds to provide grants to organizations and local governments to collect, recycle, and reuse E-waste.

[11] For a complete summary of Ecology’s Phase 1 E-waste rulemaking, please see Bradley M. Marten, “Washington State Set to Issue Aggressive Rules for Recycling Electronic Waste” Marten Law Group Environmental News (Aug. 2, 2006).

[12] WAC 173-900-030. Articles exempt from the Act include screens contained in a motor vehicle or aircraft, monitoring or control systems, medical devices, and portable communication devices such as cell phones and PDAs.

[13] “Retailers” include any person who sells CEPs at the retail level, including catalog or internet sales. “Retailers” do not include wholesale transactions or the sale of reused CEPs. See WAC 173-900-030.

[14] WAC 173-900-710.

[15] Information on Ecology’s 2009 return share and equivalent share calculations is available at: http://www.ecy.wa.gov/programs/swfa/eproductrecycle/returnShare.html.

[16] Ecology’s responses to public comments are available at: http://www.ecy.wa.gov/laws-rules/activity/wac173900.html.

[17] See WAC 173-900-030.

[18] Manufacturer penalties are listed at WAC 173-900-260.

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