Uncertainties surround state's new 'e-waste' law

Puget Sound Business Journal

June 4, 2006

Van Ness Feldman's Marlys Palumbo offers insight into what Washington's new e-waste law means for product manufacturers, recyclers, waste haulers, and municipalities.

Rapid advances in technology that improve our lives in so many ways are also producing electronics that are ever harder to reduce, reuse and recycle. While most of us are becoming increasingly aware that our computers, cell phones, televisions and other electronic equipment contain toxics such as lead, cadmium and mercury, we need to ensure that these materials are properly managed so they do not make their way from landfills into our soil, water and air.

It is opportune then that, amidst increasing public concerns over the toxicity and volume of electronic waste, or "e-waste," the state of Washington passed what may be the most comprehensive law in the country dealing with the problem.

On March 24, Gov. Chris Gregoire signed Senate Bill 6428 to establish a collection and recycling program for computers, monitors and televisions to be funded by product manufacturers. Under the new program, services will be free to Washington consumers. More importantly, the law is crafted to maximize electronics recycling and to encourage manufacturers to design and produce electronic products that are less toxic and more easily reused or recycled.

According to estimates provided by the state Department of Ecology, more than 4.5 million computer processing units, 3.5 million television monitors and 1.5 million flat panel computer screens will become obsolete between 2003 and 2010. Given these statistics and the growing urgency of the environmental waste problem, the law is timely if not overdue.

The obvious underlying principle introduced in Washington's new law is that of manufacturer responsibility for product recycling and disposal -- in other words, manufacturer responsibility for the full cost of managing the return of its products under the new e-waste program, unless an acceptable program is already in effect. Major electronics companies have offered sharply differing approaches to designing e-waste legislation, even as these companies have agreed that a single federal initiative would address the growing complexity of different state e-waste laws. Unfortunately, the void created by the lack of federal legislation in the area has led to development of diverse state programs.

Both Maine and California have laws that differ in significant respects from Washington's program. California's "advance recovery fee" system places the financial burden for its recycling program on consumers and retailers. Maine's program requires manufacturers to pay the cost of the recycling program but also places the burden upon municipalities to ensure that collection and processing services are available. Some states have banned the disposal of certain e-waste, and others have initiated interim enforcement policies (as did Washington, prior to enactment of SB 6428). As states continue to develop their own e-waste regulations, the problem is likely to worsen in complexity.

Washington's new e-waste law, set to take effect on July 1, will present significant administrative and financial challenges to product manufacturers, as well as existing private and nonprofit recyclers, waste haulers and local municipal collection facilities. Some electronics industry representatives predict a "tsunami" of e-waste that will unfairly burden manufacturers whose products have been sold or distributed in Washington for many years. Others, like HP, which operates its Planet Partners recycling service and supported passage of the new law, have existing environmental sustainability programs in place worldwide.

Nonetheless, each electronics manufacturer will be required to pay the net cost of collecting and recycling its products (or pay the cost of disposal if its products are not reusable or recyclable) and ensure that such services are widely available to citizens in both urban and rural areas of the state.

Whether the new law results in development of a viable infrastructure for e-waste management remains to be seen. The new law is complex, and development of implementing regulations for the program may take several years. Other states will be observing Washington's approach to see if it results in effective e-waste management and market-based incentives for cleaner and greener electronic products, or if the politics of e-waste here simply engenders more government bureaucracy and costly lawsuits.

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The above article originally appeared in the June 4, 2006 edition of the Puget Sound Business Journal.