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Electronic Waste (PubH 6101)

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Blog postings by Legal Perspective

October 17, 2008

Legal Perspective

By Angela Morley

Basel Picture 1.jpg (Photo Credit: Basel Action Network)

Introduction

Given the sheer amount of electronic waste collected each year and the expense of domestic recycling, it is no wonder that voluntary e-waste collection and recycling programs are limited in scope and effectiveness. Some level of regulation is needed to incentivize manufacturers, distributors and consumers to deal appropriately with existing electronic waste and reduce the level of hazardous material produced in future electronics. Grassroots efforts at the state and local level in the United States and international collaboration have been the primary motivators for change in how we deal with electronic waste. Education and awareness remain important elements in the effort to limit e-waste. Much progress remains to be made.

United States Legislation

State and Local Level

Efforts at the local and state level have motivated the enactment of electronic waste recycling acts in several states. (National Electronics Recycling Infrastructure Clearinghouse: Current Electronics Recycling Laws in Effect) Many other states are considering such proposals. California’s groundbreaking 2003 law aims to decrease the amount of hazardous material in certain electronics sold in CA. In addition, it mandates that distributors collect a fee from consumers at the point of sale to finance recycling efforts and directs the state to prefer environmentally friendly electronics for state use. (Electronic Waste Recycling Act of 2003: Covered Electronic Waste Payment System) In 2007, Minnesota passed the Minnesota Electronics Recycling Act, (Minn. Stat. §§ 115A.1310 to 115A.1330) which requires manufacturers of Video Display Devices (electronics containing a cathode ray tube or flat panel screen), to collect and recycle computers, fax machines, televisions and DVD players, among others. They must register with the state, pay a fee and work with a recycler serving Minnesota. (Minnesota’s Electronics Recycling Act: Overview and Update)

Minnesota Pollution Control Agency.gif (Minnesota Pollution Control Agency)

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Cooperation among States

Several groups of states have united to agree on a unified approach to managing electronic waste. For example, Minnesota, Michigan, Illinois, Wisconsin and Iowa have joined together to develop the Midwest Regional Electronic Waste Recycling Policy Initiative. In the 2006 policy statement, intended to provide recommendations to Midwest lawmakers for a harmonized regional approach to the collection and recycling of electronic waste, the state agencies agreed that manufacturers should be responsible for collecting and recycling electronic waste (televisions and computers) in proportion to their sales. In addition, the states agreed that manufacturers must register with the state and provide an annual report to the state on their e-waste disposal program. States also agreed that the electronic waste collected must be handled in an environmentally appropriate manner. (2006 Policy Initiative)

Federal Level

Very little legislation has been enacted at the national level to limit the exportation of existing electronic waste and to reduce the quantity of hazard material in future electronics. Although the United States Environmental Protection Agency (EPA) encourages the recycling of electronics containing Cathode Ray Tubes (computer monitors and some TVs), there is no federal law mandating recycling of electronic waste. (United States Environmental Protection Agency: Legislative Recycling Mandates) The EPA has however promulgated the Cathode Ray Tubes Final Rule, which contains requirements for Cathode Ray Tubes (CRTs) exported for recycling. Export requirements state that domestic recyclers must notify the EPA of their intention to export to an alternate recycler as well as the quantity of CRTs they intend to export. The destination country must consent to receive the electronic waste. (Environmental Protection Agency Information on the Cathode Ray Tube Final Rule) Currently, the U.S. House of Representatives is considering some proposed legislation on e-waste. In July of 2008, U.S. Representative Gene Green introduced H.RES. 1395 to Congress. (Rep. Green’s Press Release) The bill, “[e]xpressing concern over the current Federal policy that allows the exportation of toxic electronic waste to developing Nations, and expressing the sense of the House of Representatives that the United States should join other developed Nations and ban the exportation of toxic electronic waste to developing Nations? has been referred to the House Committee on Energy and Commerce. (H.RES. 1395) In addition, United States Representative Mike Thompson introduced H.R. 233, the “National Computer Recycling Act? in January of 2007. This bill,“[t]o establish a grant and fee program through the Environmental Protection Agency to encourage and promote the recycling of used computers and to promote the development of a national infrastructure for the recycling of used computers, and for other purposes? has been referred to the Subcommittee on Environment and Hazardous Materials. While these bills may look promising, similar bills have been proposed and defeated over the last few years.

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Limitations on Legislation: Exporting E-Waste

More and more states have enacted legislation to reduce the implementation of hazardous materials in electronics and require recycling of electronic waste. Problem solved? Not even close. Despite state regulations and federal recommendations on e-waste recycling, many argue that U.S. recyclers are merely exporting electronic waste to lesser developed countries rather than recycling domestically. The Basel Action Network, “the world’s only organization focused on confronting the global environmental injustice and economic inefficiency of toxic trade (toxic wastes, products and technologies) and its devastating impacts,? contends that “between 50 to 80 percent of the E-waste collected for recycling in the western U.S. [is] not recycled domestically, but is very quickly placed on container ships bound for destinations like China.? (Exporting Harm: The High-Tech Trashing of Asia) So where are all the recycling fees collected by U.S. recyclers going? The answer is not entirely clear. One can fairly assume that exporting the electronic waste to poorer countries is much cheaper than actually recycling it in the United States. From this one can infer that electronic waste recycling fees might be sustaining a lucrative electronic waste dumping trade. Thus, for states that do not have explicit mandates that the waste be recycled within the state itself, recyclers are not deterred from shipping the electronic waste to other areas of the world. In fact, the United States Government Accountability Office (GAO), an independent Congressional watchdog agency, recently released a report on the exportation of hazardous electronic waste. The title of the report explicitly states the GAO’s conclusion, “Electronic Waste: EPA Needs to Better Control Harmful U.S. Exports through Stronger Enforcement and More Comprehensive Regulation.? (GAO-08-144) In the report, the GAO noted that electronic waste from the United States exported to Asian countries can be broken down under hazardous conditions. EPA regulations limited to CRTs, the ability of companies to circumvent the CRT regulations, and lack of enforcement were all cited by the GAO as reasons why U.S. hazardous electronic waste regulations are insufficient to deter export of hazardous wastes. (GAO Summary of GAO-08-144) In response to the findings, the GAO recommended that Congress extend the regulations to cover exported electronics that do not contain CRTs, ratify the Basel Convention (please see below) and enhance tracking mechanisms for exported electronic waste.

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International Actions

Basel Action Network

Much progress has been made on an international level to limit the export of hazardous electronic waste into lesser developed countries and to reduce the amount of hazardous substances used in the manufacture of electronics. As previously mentioned, the Basel Action Network was created to address these issues on an international level, and has worked to promote education and legislation on the topic of electronic waste. In 1989 the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted in Basel, Switzerland and became enforceable in 1992. According to the Basel Action Network, the Convention was established to address hazardous waste trafficking. The Basel Convention requires that shipments must be made with consent of the receiving country, and requires that environmentally friendly means are used to dispose of hazardous waste. In 1998, the Basel Ban was implemented, which, generally speaking, banned the export of hazardous electronic waste from the wealthiest countries, including the United States, to other countries. (Basel Action Network Country Status Chart) The United States has not ratified the Basel Ban.

Basel High-Tech Trash.jpg (Basel Action Network: Exporting Harm: The High-Tech Trashing of Asia)

European Union

In 2003, the Parliament of the European Union enacted the Directive on Waste and Electronic Equipment (WEEE). The Directive intends to prevent electronic waste and reduce waste disposal. Article 5 aims to increase the level of electronic waste collection, and Articles 6 and 7 require producers and distributors to set up and finance systems to treat, recover and recycle e-waste. Standards, inspection protocols and penalties are included, and the Directive allows consumers to return electronic waste to distributors free of charge.

Basel Picture 2.jpg (Photo Credit: Basel Action Network)