The Second Wave

The United States has yet to pass nationwide legislation governing the recycling of electronic devices. However, a number of states have taken the lead in introducing legislation that governs the disposal of end-of-life electronics.

California’s pioneering electronics recycling legislation, the Electronic Waste Recycling Act of 2003, was signed into law in September of 2003 and went into effect Jan. 1, 2005. The law, which mandates the recovery and recycling of televisions and monitors measuring 4 inches or greater diagonally, is funded through an advanced recovery fee that consumers pay at the time of purchase.

California’s legislation has helped to bring attention to the need for responsible recycling of electronic devices, particularly those containing cathode ray tubes (CRTs). With their leaded glass content, these devices in particular must be recovered and recycled in an environmentally sound manner. California’s law was expended to include flat panel displays and laptops, though the recycling of CPUs and other electronic devices are not regulated.

The state’s Electronic Waste Recycling Act of 2003 and its clarifying legislation have helped to give rise to a number of comparable laws, including legislation in Maine, Maryland and Washington.

We'll look at each of the laws, including the devices they cover and their financing mechanisms.

MAINE: SHARED RESPONSIBILITY. According to the Maine State Planning Office, the state’s electronics recycling legislation, which took effect Jan. 18, 2006, "distributes the responsibility for collection, transportation and recycling of electronics among residents, municipalities, consolidators and manufacturers."

Similar to California’s law, Maine’s legislation covers televisions and monitors with screens measuring 4 inches or larger diagonally, including CRTs and flat panels, as well as laptops and CPUs with integrated monitors.

Under the law, manufacturers pay transportation, consolidator handling and recycling costs, while municipalities pay some transportation and collection costs. Municipalities can charge residents to cover their collection and transportation costs, though Cifrino says they are motivated to keep costs low to avoid the dumping of covered electronic devices. "Many don’t charge at all," she says.

"Municipalities must identify collection points for residents and work with consolidators that have been approved by the state," Cifrino says. The consolidators identify each of the recovered devices by brand, recording the number and weight of each unit prior to sending the devices on to a recycler, she says. Consolidators send an invoice to each manufacturer for the costs of handling, transporting, consolidating and recycling the devices.

Cifrino says the Maine DEP approves consolidators annually, taking their financial capacity into consideration. "It’s a competitive process." The state approved five consolidators in 2006 and six consolidators in 2007. Cifrino says the DEP intends to cap the number of approved consolidators at 10 to make things easier for the manufacturers. "They don’t want to deal with too many different entities," she adds. Of the consolidators currently approved, four also function as recyclers.

Consolidators charges are capped at 48 cents per pound and range from 17.5 to 40 cents per pound in 2007, Cifrino says.

When it comes to orphaned electronics, the manufacturers pay a proportionate share under the law. According to the legislation, "Annually, beginning Jan. 1, 2006, the department shall provide manufacturers and consolidation facilities with a listing of each manufacturer’s pro rata share of orphan waste computer monitors and televisions. The department shall determine each manufacturer’s pro rata share based on the best available information, including but not limited to data provided by manufacturers and consolidators and data from electronic waste collection programs in other jurisdictions within the United States."

Manufacturers can opt to use their own recyclers rather than those the consolidators have selected to work with and must submit a plan to the state detailing their take-back programs. "This plan must be based on the manufacturer’s taking responsibility for its products upon receipt at consolidation facilities in the state," the legislation states. The law also allows manufacturers to participate in a collective recovery plan.

The plans developed by manufacturers must include a description of the collection system, public education, details for implementing and financing the handling of covered devices received by consolidators in the state, details for reimbursing consolidators for the costs of handling and recycling the covered devices, descriptions of the performance measures the manufacturer will use and annual sales data on the type and number of televisions and computer monitors sold in the state during the five years preceding the plan’s filing.

Cifrino says manufacturers in violation of the law can be fined $100 to $10,000 per day plus triple the cost of invoices unpaid by manufacturers.

When it comes to the actual recycling of the covered devices, Maine’s DEP has established guidelines to ensure environmentally sound management. For example, recycling facilities must comply with federal, state and local laws and regulations, "including federal and state minimum wage laws, specifically relevant to handling, processing, refurbishment and recycling of televisions and computer monitors and proper authorization by all appropriate governing authorities to perform such handling, processing and refurbishment and recycling," according to the guidelines.

Recyclers must also implement measures to protect occupational and environmental health and safety by providing personnel with environmental health and safety training, written hazardous materials identification and management plans, written plans for reporting and responding to "exceptional pollutant releases," commercial general liability insurance of $1 million or more per occurrence and $1 million or more aggregate and pollution legal liability insurance of $1 million or more per occurrence for dismantlers and $5 million or more per occurrence for processors and workers’ compensation/employer’s liability insurance. The state also specifies that a recycler "must provide adequate assurance (e.g. bonds, corporate guarantee) to cover environmental costs of the closure of our facility, including the cleanup of stockpiled equipment and materials."

The guidelines also call for recyclers to use a record keeping system that tracks inbound and outbound material weights and to maintain contracts or other documents "to demonstrate: (a.) a reasonable expectation that there is a downstream market or uses for designated electronics...and (b) that any residual from recycling and/or reclamation processes are properly handled and managed to maximize reuse and recycling of material to the extent practicable."

Under the guidelines, recyclers must "comply with federal and international law and agreements regarding the export of used products or materials."

A list of guidelines is available from the DEP’s Web site at www.maine.gov/dep/rwm/recycle/tvcomputerguidelines.htm.

Among the the Maine’s approved consolidators is UniWaste Services Corp., Portsmouth, N.H. The company also acts as a recycler. UniWaste’s Bob Nicholson says a couple of manufacturers have opted to handle their own discarded products, but most are allowing the consolidators to arrange for the recycling of their products.

"I think it’s a sustainable model," Nicholson says of Maine’s law.

"Brand sorting can be challenging," he says, adding that the state has identified more than 100 brands. "It’s a labor intensive process." The learning curve was considerable, Nicholson says. "You don’t know what that cost will look like until you actually do it."

He says capping the number of approved consolidators benefits the state as well as the manufacturers. "It reduces the paperwork burden on the state," he says. "Maine’s a small state. If they didn’t cap [the number of consolidators], it would get somewhat unruly."

Maryland has taken a different approach to its electronics recycling legislation, enacting a five-year pilot program that will end in 2010.

MARYLAND: LOCAL GRANTS. In Maryland’s electronics recycling pilot program, manufacturers that made an average of more than 1,000 computers per year in the previous three years and that planned to sell or offer for sale a new computer in the state of Maryland on or after Jan. 1, 2006, were required to register with the Maryland Department of the Environment (MDE) and pay an initial registration fee of $5,000. "In subsequent years, a manufacturer’s renewal registration may be reduced to $500 if the manufacturer has implemented a computer take-back program," the MDE says.

Covered electronics include desktop personal computers, laptop computers and computer monitors, which are required to be labeled with the manufacturer’s name or the brand.

The MDE uses these fees to provide grants to counties and municipalities for computer recycling activities.

"The law allows the registration fees to be used for grants to the counties that have addressed methods for the separate collection and recycling of computers and to municipalities to implement local computer recycling programs," according to the MDE. "It does not specifically establish an infrastructure, but allows manufacturers to establish computer take-back programs in many ways, including by contracting with a recycler, local government or other manufacturer or person." The MDE adds, "Many local governments in Maryland have established permanent electronics collection facilities or hold regular e-cycling events."

The MDE enforces the law, and violations can result in civil penalties of up to $10,000 and administrative penalties of up to $1,000 per violation, not to exceed $50,000.

Manufacturers can also opt to implement their own take-back programs under the state’s law. "A computer take-back program must be free to residents of Maryland and include a toll-free number or Web site address that provides information about the take-back program, including a detailed description of how a person may return a computer for recycling, refurbishing or reuse," according to the MDE. These manufacturers must report the total weight of the computers received from the state and the total number of those computers recycled, refurbished and reused under its program as well as the processes and methods used to recycle, refurbish or reuse these computers. According to the MDE, manufacturers should provide this information before the annual registration fee is due to allow the department the opportunity to review and approve the program.

"The law requires the department to study and compare the environmental and public health impacts of disposing and recycling cathode ray tubes and review the effectiveness of the program in diverting computers and computer monitors from disposal in landfills in the state and, on or before Dec. 1, 2008, report the findings to the state legislature," the MDE says. "Presumably, the legislature intended to utilize this report to determine if the pilot program should continue or be changed."

The 2007 legislative session introduced House Bill 488, legislation that would clarify certain aspects of the current law and make the program permanent, the MDE says. However, the legislation is still pending.

Washington is the newest state to pass electronics recycling legislation. The state has decided to take a producer responsibility approach.

WASHINGTON: PRODUCER RESPONSIBILITY. The Washington State Legislature passed the Electronic Product Recycling law Chapter 70.95N RCW in March of 2006. The state’s Department of Ecology (Ecology) is creating administrative rules to implement the new law and is doing so in two phases.

According to Ecology, "Phase One of the rule making is necessary in order to comply with the registration and fees due date of Jan. 1, 2007, established in the law."

Jay Shepard with the Washington Department of Ecology, says, the law covers computer monitors and televisions as well as personal computers, portable computers and laptops that are generated by households, small businesses with 50 or fewer employees, small governments, charities and school districts. "Large universities, businesses and large governments are assumed to have their own asset management systems in place and to manage products appropriately," he says.

The state has selected the producer responsibility approach for a number of reasons, Shepard says. "Unlike many sates, we are a sales-tax-only state; we have no income tax." Washington’s neighbor Oregon does not have sales tax, so some Washington residents go across the border to make large purchases, he says. The state also found that nearly 50 percent of electronics were purchased over the Internet. These factors make enforcing an advanced recovery fee difficult.

The state rejected an end-of-life disposal fee because it could potentially encourage illegal dumping of obsolete electronics, Shepard says. Additionally, he says, the computers could potentially be on their second or third owner when they reach the end of their lives. These users would likely be unable to afford disposal fees.

"We don’t believe it is government’s role to be involved in the transaction," he says. "It adds additional cost. Private industry can make the system efficient and cost effective. The government’s role is to enforce this law."

Manufacturers are required to be a member of the state’s standard plan, which is managed by the state’s Materials Management and Finance Authority, which Shepard says is a quasi-governmental agency that exists only to provide this service and receives no state funding or appropriations.

Manufacturers can create their own recovery and recycling programs if they have been selling computers for more than five years or televisions for more than 10 years and their recovered products represent 5 percent of the material recovered, Shepard says. Manufacturers can also join together to handle their recovered products as long at their return share is 5 percent of the total recovered electronics.

Plans using nonprofits as collectors get a 5 percent credit toward their annual share of covered electronics.

"Several independent plans are expected," he says. "If one plan is a stellar performer, and the others don’t meet their percentages, the higher performer gets compensated by the lower performer by 45 cents per pound."

As of Jan. 1, 2006, all manufacturers were required to register with Ecology, reporting the various brand names they sell under. The manufacturers pay an administrative fee to the department, which it uses the money to enforce and implement the law, including the registration process, annual reporting and tracking and enforcement of non-participants, Shepard says.

White boxes are illegal under the law, and manufacturers must pay a proportionate share of orphan waste. The law also bans the use of prison labor and the state will establish rules for environmentally sound management (during Phase Two).

Ecology will send unregistered manufacturers a letter of notification, and the manufacturers have 30 days to come into compliance, Shepard says. Retailers can also be fined if they sell an unregistered manufacturer’s products. "Both face a $1,000 fine for the first violation and a $2,000 fine for the second and subsequent violations," Shepard says. "Each sale of a product is a violation."

In Phase Two, Ecology is developing rules that focus on implementing the remaining portions of Chapter 70.05N RCW, including processor performance standards and registration, recycling plan submissions and review, program implementation, standards for collectors and processors and return share and equivalent calculations. These measures will then go into effect September of 2007.

While each of these plans varies in its approach to funding they provide an opportunity to study the various approaches in action. Perhaps a clear favorite will emerge that can be used as a national model.