E-Waste Legislation

Legal Briefs

In response to concerns over the environmentally sound disposal of an increasing quantity of cathode ray tube (CRT) devices, such as televisions and computer monitors1, which contain lead and other heavy metals considered hazardous materials by the California Dept. of Toxic Substances Control (DTSC), California has passed an innovative electronic waste recycling law.

Under this law, California consumers pay an advanced recycling fee to retailers of CRT devices at the point of sale that is remitted to the State and, in turn, disbursed by the California Integrated Management Waste Management Board (CIWMB) to cover the recovery and recycling costs assumed by those that collect and recycle these devices.

As we have noted previously, the resurgence of interest in solid waste management has the potential to affect a wide array of industries, including the converting industry. Consequently, the e-waste law must be considered from the perspective of its broader potential to affect the industry. In this regard, as use of radio frequency identification (RFID) tags expands, it could create new questions about waste handling and categorization for products and packaging.

The Electronic Waste Recycling Act of 2003 (Senate Bills 20/50) requires that, as of January 1, 2005, manufacturers of covered electronic devices must notify retailers of such devices that an electronic waste recycling fee must be collected from the consumer at the point of sale, unless the manufacturer has obtained a written nonhazardous determination from the DTSC. The fees range from $6 to $10 for each device, depending on the device screen size, and the retailer has the option of paying the fee on behalf of the consumer.

Electronic devices covered by this legislation are defined as "a cathode ray tube, cathode ray tube device, flat panel screen, or any other similar video display device with a screen size that is greater than four inches in size measured diagonally and which the DTSC determines, when discarded or disposed, would be a hazardous waste . . ."2 The Act makes it clear that refurbished electronic devices supplied by the manufacturer also are encompassed by this definition. The Act further requires manufacturers of cove red electronic devices that sell such devices in California submit an annual report to the CIWMB on the number of electronic devices sold.

The Act also sets forth procedures for the State Board of Equalization to collect fees and disburse payments to authorized collectors and recyclers of covered electronic waste.

Due to the tight implementation deadlines outlined in the Act, on December 14, 2004, the CIWMB adopted Emergency Regulations to implement parts of the Act, and the DTSC also is currently in the process of developing related regulations.3 Further, to address identified problems with certain definitions and requirements, on February 17, 2005, a bill was proposed in the Senate (S.B. 423) to update some of the Act’s provisions, especially those concerning exportation of devices for recycling.

It bears noting that the California Waste Recycling Act and its implementing regulations track developments in electronic waste management in other states (e.g., Maine) and in other countries, such as those that comprise the European Union.4 This is not surprising as more and more electronic devices enter the marketplace everyday, creating challenges for the management of transboundary movement and safe disposal of electronic waste.

California’s advanced recycling fee model for managing the collection and recycling of used CRT devices is one approach for addressing these issues. If successful, this approach may be applied both inside and outside California to other classes of hazardous waste-containing commodities and materials, such as printers, copiers, refrigerators, washers and dryers, consumer goods, and packaging, and potentially it could become a model for disposal in general.

A resurgence of interest in recyclability and disposal may be linked, in part, to a growing interest in sustainable manufacturing and consumption. "Sustainability" has become something of a buzzword, but there is little agreement on the exact meaning. Supporters of advance recycling and disposal fees argue that fees not only help defray the costs of disposal but also provide incentives for consumers to reduce waste and limit consumption. Suffice it to say, the new legislation on waste management bears watching.

1In 2001 it was estimated more than 6000 computers in California become obsolete every day. See California Integrated Waste Management Board, Selected E-Waste Diversion in California: A Baseline Study, November 2001.

2See California Public Resources Code, Section 42643(f).

3See Emergency Regulations Adopted by the California Integrated Waste Management Board Implementation of the Electronic Waste Recycling Act of 2003,Chapter 526, Statutes of 2003; as amended by Chapter 863, Statutes of 2004. ciwmb.ca.gov/electronics/act2003/ Regulations/Emergency

4Maine has implemented a so-called "producer responsibility" model that is different from California’s "advanced recovery fee" model. In Maine it is the responsibility of the manufacturer to pay the costs of recovery and recycling of their own products. See 2004 Me. Laws 661 (H.P. 1402–L.D. 1892, an Act to Protect Public Health and the Environment by Providing for a System of Shared Responsibility for the Safe Collection and Recycling of Electronic Waste, signed into law April 22, 2004). In the EU, several Directives have been issued to manage the disposal of electronic devices containing hazardous components, such as the Waste Electrical and Electronic Equipment Directive (2002/96/EC) and the Restriction of Hazardous Substances in Electrical and Electronic Equipment Directive (2002/95/EC).

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; packaginglaw.com.

To read more of Sheila A. Millar’s Legal Briefs columns, visit our Legal Briefs Archives.

Subscribe to PFFC's EClips Newsletter