PROLIFERATION OF E-WASTE LEGISLATION PREDICTED IN STATES

E-waste is one of the “emerging issues” that localities are facing, said Adam Schafer, program dir. of the National Caucus of Environmental Legislators. “The states aren’t seeing any action by the federal government to help them out financially to deal with the issue and so they are working to find solutions.” There will be an increase in the number of bills with “greater strength,” said Scott Cassel, dir. of the Product Stewardship Institute (PSI) and representative of the states on the National Electronics Product Stewardship Initiative (NEPSI). EIA Environmental Affairs Dir. Heather Bowman concurred: “ I think we are going to see a continued proliferation of state legislation in the absence of federal action.” There were 49 pieces of legislation in 24 states this year, said David Wood of the GrassRoots Recycling Network (GRRN). He said environmentalists would continue to push for full producer responsibility in the states as opposed to Cal.’s advanced recovery fees (ARF) model.

Cal.’s SB-20, which then-Gov. Gray Davis (D) signed in Sept., requires setting up a recycling system financed by a point-of-sale fee on most computer monitors, TV sets and other video devices paid by retailers or manufacturers to the Cal. Integrated Waste Management Board. For the first year, the fees are $6-$10 per unit, depending on screen size. After July 1, 2005, the fee will be based on the actual cost of recycling. The measure also would restrict the export of e-waste to developing countries and would prohibit the sale of devices containing certain toxic materials after 2007.

Cassel said the lack of a national solution or a national approach that wasn’t considered aggressive enough for the states would propel many states in the direction of legislative fixes. “I'm getting each month a new call from another state that is investigating legislation,” he said. There were 4 different categories of bills this year, he said -- pushing product stewardship, advance recovery fees (ARF), hybrids and merely seeking CRT landfill bans. Some states were looking at Cal. as a possible model, while others were considering the PSI plan that’s performance based and others. “So I would expect there to be more legislation and different kinds of solutions emerging and more innovation.”

The Cal. model could seem appealing to states that are in budget crunches, EIA’s Bowman said. But the environmental community’s dissatisfaction with Cal.’s SB 20 could lead to legislation that’s similar to bills introduced in R.I. and Wash. this year, she said: “But I also see other states looking at this from a more strategic standpoint and trying to do something a little bit more sustainable than either of those 2 approaches.” Realizing that things were bound to happen at the state level because e-waste management is a traditional state or local responsibility, the EIA is seeking a “balanced” approach that’s based on shared responsibility rather than full producer responsibility, Bowman said. The shared responsibility model would involve federal financial support for part of the process, with manufacturers paying for recycling their products and local govts. responsible for collection and transportation of used products.

Bowman conceded that such an approach wouldn’t help tackle the free rider issue that have many manufacturers concerned. “To completely eliminate the free rider problem that we are afraid of there would have to be some sort of overlapping legislative guiding principles that need to be enforced on everyone trying to sell products in the U.S.,” she said.

For many states, covering the costs is the most important factor and the ARF in the Cal. model would suit that purpose best, Cassel said. But there are several things about the Cal. model that other states don’t like, he said, particularly the provision that recycling fees collected on sale of products would go into a govt. fund. Many legislatures had taken money from dedicated funds for general purposes, he said, and “there is concern about that type [Cal.] of legislation.” Another concern is that there isn’t a lot of responsibility required of the manufacturers, he said: “States would like to see the manufacturers take greater responsibility through a 3rd-party organization. They feel it is important that the manufacturers be involved in the solution over the long haul.” The ARF model basically leaves the manufacturers out of the picture in terms of technical and logistical commitment needed to reduce costs, he said. It also doesn’t offer incentives for product design changes.

Cassel said for some states a NEPSI agreement would mean delaying a legislative approach, but other states would opt to proceed on 2 levels at the same time -- pursuing national and state legislation simultaneously: “They don’t want to let up in terms of waiting for NEPSI to come to a solution.” Cassel said he would recommend that states not wait for NEPSI and that they continue to move forward with their own state solutions but to make them consistent with what might emerge in the national dialog.

Cassel said he believed that only more legislative initiatives in the states and greater chance of their passage would push manufacturers to come up with a national solution that would work for the whole industry, which now is split, with some companies favoring an ARF and others embracing individual responsibility. The industry currently doesn’t see a solution to the e-waste problem as a priority in order to develop a strategy that works for the industry as a whole, Cassel said, and “additional legislative initiatives will increase the priority for this issue.”

“Distracting” manufacturers by passing state bills wouldn’t help the industry come to a consensus on the financing model, Bowman warned. She agreed that there was a divide within the industry because there were numerous different approaches preferred by manufacturers based on the sector of the economy that they dealt with and the different business models that companies followed. What is needed, she said, is a federal strategy that allows flexibility for different companies and different business models.

“We haven’t seen states clamor to embrace what California did and in fact we are a little surprised that states haven’t moved quickly in that direction,” GRRN’s Wood said. That group hadn’t endorsed the Cal. model, saying it didn’t impose enough responsibilities on the manufacturers. Asked why the major environmental groups opposed the ARF model, he said in most cases it would provide short-term cash that would help local govts. But the major concern with the ARF fee approach is that it doesn’t differentiate between laggards and leaders in the industry, he said, and wouldn’t provide an incentive for a company to do more on product design or product recovery. Wood also said the ARF model wouldn’t force companies to internalize the entire costs of their discarded products.

There will be heightened activity in the states next year on electronics legislation, he said, but not necessarily because of Cal. States are becoming more aware of the problem and e-waste is gaining increased public policy attention around the country. Asked whether a proliferation of state legislation would drive national policy, Wood said the real motivating factor for industry to come to an agreement through NEPSI would come from the industry itself: “A number of states are watching NEPSI closely and the bellwether will be what, if anything, results from NEPSI rather than what was passed in California.”