The Digital Divide - The Differing E-Waste Laws (with related video)

When Utah’s governor signed Senate Bill 184 on March 22, the United States reached another milestone in the development of our national patchwork of state electronics recycling laws. Half of the states, covering two-thirds of the U.S. population, now boast some type of e-waste law. Utah also continues the trend of no two states passing an exactly identical bill. The Utah e-waste law, like all but the law in California, uses a producer (manufacturer) responsibility approach. Another four states — New York, Pennsylvania, South Carolina and Vermont — passed e-waste recycling laws in 2010. By January 2012, all 25 state e-waste laws will be implemented, barring any legislative delays.

Despite the number of laws and their differences, there does not appear to be a federal e-waste law on the horizon. However, there is increased federal attention to the issue, primarily on the part of the Obama Administration rather than in Congress. In the absence of a federal program, state agencies and impacted stakeholders are beginning to work together to harmonize the overlapping aspects of their programs to avoid duplication of activities. Coordination and attempts at crafting new laws based on lessons learned from older laws are just two of the key current e-waste recycling trends. Other trends include the sole use of market share in allocating collection goals to manufacturers, the requirement of a minimum number of devices collected by county, and the expansion of the scope of electronic products covered.

New State Laws and Trends

State e-waste recycling laws based on a producer responsibility model vary in that costs to manufacturers are set based on the number of units or the total weight of products they sell (called the market-share approach), the amount of their brands in the waste stream (return-share approach), or some combination of the two measurements. Early producer responsibility laws, such as those in Maine and Washington state, rely on return-share-based allocations to assign financial obligations. However, very few laws passed since 2008 have incorporated return-share aspects, and the new laws in New York, Pennsylvania and Vermont rely solely on market-share allocations.

Another trend is the continued divide between states that establish minimum collection targets and those that do not. Of the new laws, Utah’s and the section of South Carolina’s that sets requirements for computer and other information technology (IT) manufacturers do not set minimum collection volume goals for manufacturers. The other new states — New York, Pennsylvania and Vermont — set defined collection goals. In Pennsylvania’s case, the collection goal is based on the total weight of new sales in the state. In order to mandate a minimum level of convenience, the New York and Vermont laws add a geographic target for collection numbers by setting a figure in each county that must be met in addition to the overall collection target.

Summary of New State E-Waste Laws

New York

The New York law is the most comprehensive of any state law in terms of products covered. It also is significant because it represented the largest producer responsibility program in the country when it took effect on April 1.

In addition to the usual computers, televisions and monitors, New York law's also covers other computer peripherals, such as keyboards, mice, fax machines and scanners, as well as other small electronic devices such as DVD players, portable audio players and small-scale servers. The law establishes an overall collection target, and each manufacturer is assigned a portion of that goal based on their market share. Manufacturers must provide an electronic waste acceptance program at no cost to consumers, including at least one convenient method of collection within each county and within each municipality with a population of at least 10,000.

The New York law also closed the book on an interesting chapter in the development of U.S. electronics recycling laws in that it preempted the law passed by New York City in 2008. The NYC ordinance represented the first and only local law in the country mandating electronics producer responsibility. Understandably, it was the subject of an industry lawsuit — again, the first of its kind — until passage of the state law, which has rendered the suit moot.

Pennsylvania

The Pennsylvania law covers televisions, desktop and laptop computers, monitors, printers, keyboards, and mice collected from households and small businesses with less than 50 employees. As the law currently stands, manufacturers must collect one pound of covered devices for every pound they sell into the state as of January 2012. However, there are no required geographic convenience goals as in New York. Manufacturers also must share information with consumers about where and how to recycle these products. Lastly, a ban on the disposal of computer parts and televisions in Pennsylvania landfills takes effect in 2013.

South Carolina

The South Carolina law takes effect July 1 and offers households free collection and recycling of televisions, computers, computer monitors and printers. Under the South Carolina law, manufacturers cannot sell a covered device unless they provide a recovery program at no cost to the consumer.

Like a few other state laws that passed in 2009, the South Carolina law set separate guidelines for television manufacturers. Beginning on July 1, 2012, a television manufacturer must recycle or arrange for the recycling of its market share of covered television devices each year. Computer manufacturers must establish a recovery program for their devices, but there are no collection targets. South Carolina’s disposal ban on covered devices takes effect on July 1, 2011.

Utah

As of July 1, 2011, the Utah law prohibits manufacturers of desktop and laptop computers, tablets, keyboards, printers, televisions and television peripherals (DVD players, VCRs, etc.) from offering their devices for sale in the state unless the manufacturer, individually or through a group, reports to the state how it runs an e-waste recycling program. The report must include a listing of collection sites in the form of a map. It also prohibits a manufacturer from offering its consumer electronic devices for sale in the state unless it establishes and implements a public education program. The program does not include a ban on landfill disposal of covered devices.

Vermont

Vermont’s law, which takes effect July 1, calls for the adoption of a "Standard Plan for the Collection and Recycling of Electronic Devices." Manufacturers can choose to pay for their share of the standard plan, or submit an "opt-out" plan to the state to run an alternative program.

The Vermont law will offer free collection and recycling of televisions, computers, monitors and printers to Vermont households, charities, school districts, and businesses that employ less than 10 people. The Vermont e-waste disposal ban, which took effect on Jan. 1, 2011, was unique among the new state laws in that it became effective before the programs funded by manufacturers have to be in place, and includes devices — such as game consoles and fax machines, among others — that are not eligible for free recycling by the manufacturer-sponsored programs.

Working Together

Despite the differences, state programs are working to find common ground. For more than a year, they have been working to harmonize technical aspects of their programs through a new organization called the Electronics Recycling Coordination Clearinghouse (ERCC), formally established in January 2010. Members and administrators of this forum exchange information and coordinate activities. Through this new group, state agencies and impacted stakeholders have been able to reduce the burden on their individual resources and make the implementation of electronics recycling laws more of a collaborative effort.

The ERCC was formed by the National Center for Electronics Recycling (NCER) and the Northeast Recycling Council (NERC) to bring member states and stakeholders together so that ideas and work can be shared. For example, instead of three states trying individually to identify the contact for the same bankrupt manufacturer so that a recycling obligation can be paid, now one state does the legwork and shares the information with the rest of the member states.

Some of the projects being addressed by ERCC are market-share and return-share challenges, manufacturer registration, and performance measures. In 2011, ERCC will release documents with recommendations on topics such as performance measures, collector best practices and product definitions. The documents have been or will be developed through member working groups. ERCC also is planning to activate an online registration system for manufacturers and eventually recyclers to complete state registration forms in a central location. Lessons learned through ERCC already have been valuable for state agencies planning the implementation of new laws.

A Federal Solution?

Despite increased attention to electronics recycling in the last Congress, no e-waste legislation was passed. In 2010 and 2011, the Obama Administration became more involved by assembling an interagency task force on federal electronics stewardship. This task force, which was created by an Executive Order in November 2010 and includes the U.S. Environmental Protection Agency, the General Services Administration and the Council on Environmental Quality, has convened listening sessions with stakeholder groups and submitted a request for comments from the general public in the Federal Register. The task force will release a report on electronics stewardship in May, which could spark new federal programs or renewed activity in Congress. It is not expected that the report will propose a national program that would directly preempt the state laws, but it could recommend programs that address areas ripe for harmonization among the states and propose programs for the regulation of exports of used electronics.

As in the past, 2011 will be a year in which we gain a better sense of how the state models are performing and which elements work better than others. We may also have a clear sense as to which direction the federal government will head as it decides the most appropriate role it can play in this evolving, long-term challenge.

Jason Linnell is the executive director of the Parkersburg, W.Va.-based National Center for Electronics Recycling.

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