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New Zealand Journal of Environmental Law |
Last Updated: 31 January 2023
International Approaches to Dealing with Electronic Waste
Jennifer-Ann Hoeveler*
Electronic waste is an extremely fast-growing waste stream and its characteristics indicate that this issue deserves increased attention. Many electronic devices contain highly toxic substances that might be released to the environment and thus pose a significant risk to humans as well as to nature. During recent decades a massive international trade with e-waste has developed, which appears to transfer these risks from industrialised countries to developing countries, which needs to be considered as another matter of concern in this context. The international community as a whole as well as various nation states have recognised the increasing problem of e-waste and have introduced legislation in an attempt to combat it. This article seeks to illustrate various problems involved in e-waste and gives an overview of international policies currently in force that address this issue. E-waste strategies of countries such as New Zealand, the member states of the European Union, the United States as well as Japan will be introduced and comparatively analysed in order to point out policy that is likely to be the most effective.
1. INTRODUCTION
Electronic consumer goods are designed to make our daily lives easier and more convenient, or simply to entertain us. Due to the decreasing costs of technology, more and more people are able to afford a wide range of electronics. Computers,
*First Legal State Exam, 2008, Universität zu Köln, Germany; LLM, 2009, University of Auckland, New Zealand. This dissertation was presented in partial fulfilment of the requirements for the degree of Master of Laws at the University of Auckland in 2009. The author would like to thank Associate Professor Kenneth Palmer of the Faculty of Law for his assistance and support throughout the writing process. Jennie Hoeveler <jenniehoeveler@web.de>.
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mobile phones and televisions can be found in most households, commonly more than one device. Once these electronic goods are old, people are likely to throw them away and replace them with new ones, even though they are still in working order. Thus consumers steadily produce large amounts of what is known as “electronic waste” (“e-waste”).The consumption of electronic appliances is massive and increases steadily. As a consequence, e-waste may be considered as one of the fastest-growing waste streams in the world today. This trend is likely to continue because of technological innovation and the relatively short lifespan of electronic devices. The problem with e-waste is that it can release dangerous substances which pose a threat to human health and to the environment in equal measure. People working with e-waste in any form are exposed to extremely toxic substances and their health may be severely harmed. Improper disposal of e-waste in landfills or incinerations can result in dangerous substances finding their way into groundwater supplies or the atmosphere.
The special consistency of e-waste also results in high recycling costs which lead to another set of problems. Developing countries are often willing to process the waste at the lowest cost, initiating a general e-waste trade stream from industry states to developing countries. As labour costs are low and environmental regulations more lenient in many developing countries, it is more convenient for developed countries to dispose of e-waste there instead of dealing with the problem within their own borders. Being aware of the increasing threat, limited measures have been taken by governments to counteract the difficulties. This article will illustrate the problems involved in e-waste, including the rapidly growing volume, its hazardous risks, and the international trade with e-waste. Further, it will discuss the Basel Convention, the main international environmental agreement concerning e-waste, and will critically examine its effectiveness. In the main part of the article it will be demonstrated how the issue is dealt with in different parts of the world and the different models that have been established to handle e-waste will be introduced. The national legislation relevant to e-waste for New Zealand, the European member states, the United States as well as Japan will be described, whereby the main focus is put on New Zealand. In the concluding comments the existing schemes will be analysed and the strategies that are likely to be the most successful will be
considered.
2. DEFINITION
There exist numerous definitions of e-waste. For example, the United Nations Environment Programme (“UNEP”) defines e-waste as “any electrically powered appliance that fails to satisfy the current owner for its originally
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intended purpose”1 and the Organisation for Economic Co-operation and Development (“OECD”) determines e-waste to be “[a]ny appliance using an electric power supply that has reached its end of life”.2 E-waste is also known as “WEEE”, an abbreviation for “Waste Electrical and Electronic Equipment”, and has been defined in the European Union WEEE Directive, legislation that specifically deals with the management of e-waste.3 However, there is currently no standard definition in use.The term covers a great variety of electronic appliances, products, com- ponents and accessories that have been discarded because of their malfunction, exhaustion or obsolescence.4 E-waste can be subdivided into two groups: electronic waste and electric waste.5 Electronic waste includes monitors (10%), televisions (10%), computers, telephones, faxes and printers (15%), and DVD/ VCR players, CD players, radios and hi-fi equipment (15%), whereas electric waste consists of appliances such as refrigerators (20%) and washing machines, air conditioners, vacuum cleaners, coffee machines, toasters, irons and others (30%). Lighting equipment, toys, sports and recreational equipment, electrical and electronic tools, surveillance and control equipment, medical instruments and automatic ticket machines are additional categories of e-waste.
3. E-WASTE QUANTITIES
E-waste quantities are extremely difficult to measure and existing data is commonly based on estimates.6 Nevertheless, there is consensus about the fact that it is one of the fastest-growing waste streams worldwide. Such development is due to a number of factors. First of all, rapid innovations and technological improvements result in the steadily decreasing lifespan of electronic devices such as computers and televisions, which means that they are becoming obsolete
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faster.7 The production costs of electronic products are much lower today than previously and more affordable for the majority of consumers.8 In addition, electronic products are generally not designed to be repaired, and even if repairs were possible, it would often not be worthwhile because of the costs.9 Finally, there is great consumer demand for smaller, faster or more capable electronic products, so that producers are motivated to create and manufacture more and more improved devices.As more people in industrialised countries can afford electronic devices, e-waste is mainly generated in such regions, but emerging economies such as India and China are creating increasing amounts of e-waste as well.10 E-waste is produced by individual households and small and large businesses, educational institutions, governments and original equipment manufacturers. The estimated figures available for e-waste quantities clearly indicate the dimension of the problem. Three billion units of e-waste are projected to enter the e-waste stream by the year 2010.11 Approximately 20 to 50 million metric tonnes of e-waste are generated worldwide each year and this trend is likely to continue.12 The worldwide market for e-waste is predicted to increase from $7.2 billion in 2004 to $11 billion in 2009, representing an average growth rate of 8.8% per year.13
A large proportion of e-waste consists of computers. In 2010, the number of computers is likely to reach a peak of about 1.3 billion.14 It is estimated that in the US alone, about 14 to 20 million computers are thrown out every year.15 In addition, more than one billion mobile phones and ten million iPods have already been sold16 and will become part of the e-waste mass that has to be disposed of over the coming decades. Further, the problem escalates in relation to planes, ships and cars. For example, by 2035 an estimated 35,000 planes
<http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=496&ArticleID
=5447&l=en> (accessed 25 May 2009).
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will become obsolete and have to be scrapped, indicating that the growth of international air travel has not only immediate consequences for the climate, but also longer-term ones concerning environmentally sound disposal of aircraft.17 The dismantling of obsolete ships is another issue of concern.18 Having implemented new tanker rules to avoid oil spills, Europe is expecting about 2,200 ships to end service by 2010 and that another 1,800 will be disposed of by regions such as North America, Brazil and China.19 It is estimated that the quantity of ships which will be scrapped between 2006 and 2015 is likely to contain about 5.5 million tonnes of hazardous components, including asbestos,oils, oil sludge and a range of heavy metals.20
4. HAZARDOUS COMPONENTS OF E-WASTE AND THE IMPACT ON PUBLIC HEALTH AND THE ENVIRONMENT
E-waste constitutes a global problem in two respects: it has dramatically increased in volume and poses a severe threat to the environment as well as to human health.21 Electronic devices often contain highly toxic elements that are likely to cause significant consequences if exposed to humans or nature. In particular, products such as computers and televisions include components consisting of a broad spectrum of hazardous chemicals. For example, a single computer can contain more than 50 highly toxic metals and compounds.22 Among others, the most common hazardous substances contained in e-waste are lead, cadmium, brominated flame retardants and mercury, which will be briefly outlined below.23
4.1 Lead
Lead is a highly toxic heavy metal which is known to pose serious threats to human health, animals and plants.24 All lead compounds have been identified as
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dangerous substances and are especially hazardous for children.25 As children’s brains and central nervous systems are not completely developed, they are more vulnerable than adults and likely to suffer learning disabilities, attention deficit disorders or behavioural problems if exposed to this substance.26 Adults who come in contact with lead may suffer increased blood pressure, fertility issues, nerve disorders or concentration problems. The efficiency of kidneys can be affected as well.27Notably high amounts of lead can be found in cathode-ray tubes (“CRTs”), which are components of televisions, computers and other video screen equipment.28 CRTs are the glass “picture tubes” that can be found in any electronic device that has an image screen.29 These components amplify and focus high-energy electron beams in order to create the image on the screen. The lead is incorporated into the glass because it protects consumers from radiation dangers. On average, each computer or television display comprises four to eight pounds (1.8 to 3.6 kg) of lead. Twenty per cent of each CRT is composed of this substance. Studies have revealed that all electronic devices including a CRT or printer wiring boards with lead-bearing solder are most likely to leach amounts of lead that are sufficient to identify them as hazardous when disposed.30
4.2 Cadmium
Cadmium is used in computer circuit boards and batteries.31 Its negative health effects include damage to kidneys, bone toxicity, high blood pressure and heart diseases, and in some cases, lung cancer.32 Flu symptoms including chills, fever and muscle ache might be caused by acute exposure to cadmium.33 Increased levels of cadmium can be found particularly in water, air and soil in industrial areas.34 Another source of this substance is food. Humans and animals can thus be affected by cadmium easily. Because of its extremely long half-life of 30
www.greenpeace.org/raw/content/international/press/reports/chemical-contamination-at-e- wa.pdf > (accessed 25 May 2009) 8.
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years, the chance of it concentrating in sufficient amounts to cause poisoning symptoms is high.35
4.3 Mercury
Mercury can be found in thermostats, sensors, relays, medical equipment and mobile phones and is also used in flat-panel screens and switches.36 It exists in various forms. In electronic equipment, usually metallic or elemental mercury is used, a substance that is liquid at room temperature.37 Mercury can be extremely toxic to aquatic organisms and can easily accumulate in the environment. As a liquid substance, it evaporates into the air as a gas and it can reach groundwater through landfill leakages. Mercury poses a great threat to humans because it has the potential to cause chronic damage to the brain and can also damage the central nervous system and kidneys. Like lead, it also causes developmental disorders in children.
4.4 Brominated Flame Retardants
Brominated flame retardants are used for reducing flammability in components such as connectors, plastic covers or cables which are part of almost every electronic product.38 The whole substance group of brominated flame retardants is considered extremely dangerous because of their potential to generate highly toxic brominated dioxins and furans in thermal processes.39
It is estimated that polybrominated biphenyls (“PBBs”), a certain substance of the brominated flame retardants group, are already being widely disbursed into the environment and are commonly found in sediments of polluted waters.40 They are released into the environment through landfill leachate and other waste dumps, and once this has happened they can be easily absorbed by animals and contaminate the food chain. PBBs have already been detected in fish from several regions. Once they are in human organisms, they can increase the likelihood of digestive or lymph system cancer.
40 Silicon Valley Toxics Coalition, supra note 4, at 13–14.
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5. THE DISPOSAL OF E-WASTE
5.1 Incineration
Incineration is commonly used for the disposal of municipal solid waste.41 If e-waste is not separated from usual garbage when it is disposed of, it is likely to be incinerated as municipal solid waste as it is not possible to identify e-waste once it has been mingled with general rubbish. This is considered particularly dangerous because when e-waste is burned large amounts of dioxins which belong to the most toxic substances known are produced.42 In addition, high concentrations of metals are released, many of them heavy metals.
Even though it is relatively expensive to incinerate e-waste, burning facilities still operate all over the world. Of particular concern are facilities that burn waste “open air” for the purpose of discovering copper and other metals. Studies of soils have been conducted at open burning sites which indicate that concentrations of highly toxic metals such as lead were more than a hundred times higher than usual.43
The incineration of e-waste pollutes the local environment and the air to a great extent. Several studies in this field have revealed that soil, plants and animals situated close to e-waste processing sites are contaminated by toxic substances that have been released during dismantling and burning activities.44 Contaminated dust can be inhaled or eaten by humans and wildlife and result in serious ill health. In order to avoid such consequences, stringent worker protection as well as stronger regulation for burning facilities is urgently required.
5.2 Landfills
E-waste is commonly disposed of in landfills where no separate collection and recycling systems have been established.45 The use of a landfill is a conventional method for the disposal of all types of waste, but in the case of e-waste, it needs
41 UNEP DTIE SCP Branch, E-Waste Management, supra note 1. 42 Silicon Valley Toxics Coalition, supra note 4, at 15–16.
<http://www.environmentalhealthnews.org/ehs/newscience/e-waste-chemicals-change- workers-dna> (accessed 25 May 2009). This article is a synopsis of Sheng Wen, Fang-Xing Yang et al, “Elevated Levels of Urinary 8-Hydroxy-2´-deoxyguanosine in Male Electrical and Electronic Equipment Dismantling Workers Exposed to High Concentrations of Polychlorinated Dibenzo-p-dioxins and Dibenzofurans, Polybrominated Diphenyl Ethers, and Polychlorinated Biphenyls” (2008) 42(11) Environ Sci Technol 4202–4207.
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to be regarded as environmentally unsuitable.46 The biggest threat posed by landfills is obviously their high potential for leakage. It has even been suggested that all garbage landfills leak.47 Landfills differ greatly in their quality and not a single one can be considered as completely secure on a lifetime basis.Many electronic devices are disposed of in landfills and a major concern is the risk that toxic substances such as lead might leach and pollute soil and drinking water supplies.48 It is worth noting that 40 per cent of all lead found in landfills derives from consumer electronics. Even though there is no direct data on the consistent leach of lead in landfills, the high potential for environmental damage cannot be denied.49 There is neither opposing evidence nor long-term monitoring that might be considered as sufficient to reduce this level of risk.
5.3 Recycling
The problem with e-waste is that recycling costs are relatively high because electronic devices such as computers are complex and components have to be dismantled, cleaned and sorted.50 Such requirements are extremely time- consuming and expensive. The hazards of e-waste add additional costs and there are limited or no incentives to conduct such expensive procedures. Thus, conventional methods are used to dispose of e-waste or it is shipped to other, mainly developing, countries where it can be recycled more cheaply.
E-waste is often processed without any pre-treatment. In many cases recyclers only focus on detaching the valuable components from the e-waste and are not concerned about what happens to the rest.51 The recycling of e-waste requires advanced and expensive equipment, which developing countries usually cannot afford. Recycling plants are often poorly regulated and many cases of “sham” recycling have been exposed. This means there was never any intention of using appropriate recycling technology and the term “recycling” only served to disguise the operation for the purpose of facilitating the international trade in e-waste.52
The hazards of e-waste are most likely to occur during incorrect disposal
52 Jim Puckett, “The Basel Ban: A Triumph Over Business-As-Usual” (updated 1 October 1997) Basel Action Network, at <http://www.ban.org/about_basel_ban/jims_article.html> (accessed 21 May 2009).
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or recycling processes.53 For example, a Swedish study revealed that the dust generated from the recycling of computers, fax machines and other electronic equipment contains toxic flame retardants and contaminates the air.54 As a consequence, the level of one form of flame retardant was 70 times higher in the blood of workers at dismantling facilities than the amount that was found in hospital cleaners.55 It is also known that workers who are chronically exposed to such dangerous chemicals experience changes in their DNA which may lead to cancer, premature ageing and a variety of other ailments.56 Researchers collected hair and urine samples from workers and indoor dust samples at electronic dismantling factories in East China and analysed them for dioxins, flame retardants and other chemicals in July 2006. They found that workers who were exposed to such high concentrations of chemicals experienced an alteration of their DNA from a single shift. The hair samples were contaminated with the highest amounts of these chemicals that have ever been recorded. The analysed dust samples contained dioxin levels that were more than 500 times higher than in house dust from Japan. Thus, health risks related to inappropriate recycling facilities are well documented and are a particular matter of concern especially in developing countries.57To date, little effort has been made to avoid the release of toxic substances into the environment during disposal processes; the risk is primarily taken for economic reasons. Improper handling of recycling operations provides limited environmental benefits and poses significant risks to employees.58 A lot of work is carried out by children and in general they are only provided with rudimentary tools and no protective equipment.59 As long as such conditions exist, these recycling operations cannot be considered as a better alternative to waste dumping. It is basically the same thing under another guise.
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6. THE INTERNATIONAL TRADE WITH E-WASTE
Over recent decades, the trade with e-waste has developed to a matter of global concern. Huge amounts of e-waste are mainly moved from industrialised countries to developing countries, typically to those with extremely low labour costs.60 Sidestepping international laws that are regulating the management of e-waste, many industrialised countries are shipping their e-waste to countries such as China, India or Pakistan under the guise of recycling or reuse purposes and increasingly trade their e-waste illegally.61 These activities are expedited by three main factors: environmental considerations at home; the economics of disposal; and ultimately the laws that have been created to cope with the problem of e-waste.62 In addition, the exceptional mass of e-waste generated has to be kept in mind in attempts to explain the development of e-waste trade. First of all, many countries — especially those industrialised countries which are densely populated — have limited space for landfills or other disposal sites to deal with such a huge amount of e-waste themselves and therefore seek to trade with other countries.63 Further, lack of an adequate waste management system is a contributing factor to countries entering the international trade in
e-waste.
Secondly, the economics of disposal may be considered the most important factor for the e-waste trade between industrialised to developing countries. Labour costs are higher in industrialised countries and there are often additional costs imposed by safety requirements.64 Thus, many recyclers salvage the valuable components of e-waste and sell the rest to third parties. The e-waste residues are likely to end up with those who are capable to process it at the lowest cost, mostly in developing countries with minimal labour costs and more lenient environmental regulations.
Thirdly, the tightening of laws concerning hazardous wastes in industrialised countries has motivated producers to find cheaper and easier
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methods of disposal.65 The Basel Convention,66 for example, was established in consequence of illegal waste dumping activities in developing countries, which in turn were due to the implementation of stricter waste management laws in industrialised countries. This might be regarded as the most prominent example for the presumption that stringent rules have the potential to motivate manufacturers and generators to sell e-waste instead of paying higher costs for internal recycling.Unfortunately, many developing countries rely heavily on raw materials that can be salvaged from e-waste. Despite the hazards, e-waste constitutes an important source of revenue which is urgently needed in many regions to support their emerging economies.67 For example, ship scrapping is an important source of raw material. Bangladesh alone derives a massive 80 to 90 per cent of its steel from end-of-life ships.68 In many cases public health is sacrificed for economic benefit and it appears as though developing countries are forced to choose between “poverty and poison”.69
Laws and economics are closely linked and mutually influence each other. In order to constrain or even prevent the e-waste trade between industrialised and developing countries, it is therefore essential to create a legal system that reflects the economic interests of both sides. It is hard to stop a trade between parties with mutual economic benefit. Environmental responsibilities play an important role in this context as well, but in the end, economic aspects are likely to be more significant.
7. INTERNATIONAL REGULATORY APPROACHES
E-waste constitutes an issue that poses environmental challenges with no respect to state borders and thus demands a global solution.70 Thus, it appears to be most effective to approach the issue of e-waste from an international perspective.
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7.1 The Basel Convention
The main international regulation concerning e-waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”).71 It particularly addresses the problem of e-waste trade between industrialised and developing countries and encourages international cooperation to find solutions.
In the late 1980s, developed countries began to ship hazardous wastes to developing countries and to Eastern Europe for final disposal.72 A tightening of environmental regulations in industrialised countries in these years caused an increase in the cost of hazardous waste disposal so that a number of developed countries searched for less-expensive alternatives. After a public outcry against such indiscriminate dumping measures, the Basel Convention was drafted in order to prevent these activities. It was adopted in Basel, Switzerland, in 1989 and came into force in 1992.
The Basel Convention recognises the enormous threat hazardous waste and other waste poses to the environment as well as to human health.73 The agreement serves as a framework for controlling “transboundary” movements of hazardous waste and provides criteria for “environmentally sound manage- ment”. In the present decade, it increasingly focuses on strategies to minimise hazardous waste as a long-term solution and puts more emphasis on enforcing treaty commitments and encouraging full implementation.74
The main objectives of the Basel Convention are that hazardous wastes and other wastes should be disposed of in the state in which they were generated, as far as states are capable of ensuring environmentally sound and efficient management,75 and that the movement of hazardous wastes should be reduced to a minimum.76 Therefore, states which want to export hazardous wastes across international boundaries have to pass through several requirements before and during shipping wastes to other countries. For example, the export states have to give notification to the authorities of the states of import prior to their activities77 and additionally need to prepare a movement document from the beginning of the transboundary movement to the point of disposal.78 There are also bans on the export of wastes to certain countries, and governments are urged to prohibit
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the export if there are reasons to believe that waste will not be disposed of in an environmentally sound manner.79 In general, transboundary movements should only be allowed if they are adequately conducted.80The overarching aim of the Basel Convention is to protect humans and nature from any harm that might occur from hazardous wastes and other wastes.81 This includes the creation of adequate disposal facilities, the environmentally sound management of hazardous wastes, and efforts to prevent any pollution that might occur from hazardous wastes or other wastes.82 In order to assist the signatories with implementation of the agreement and to develop environmentally sound waste management practices, the Basel Convention provides technical and legal advice as well as training in the management and minimisation of hazardous wastes.83 Developing countries in particular need support in improving their skills in the area of waste disposal management. Accordingly, Regional Centres for Training and Technology Transfer have been established in various countries, including Argentina, Egypt, China, El Salvador and others.84 Currently, 172 countries have signed and ratified the Basel Convention, and noticeably, the United States is not among these.85
7.2 The Ban Amendment
At first the Basel Convention was heavily criticised, primarily by the African group of countries, other developing countries and Greenpeace, because it appeared to serve as an instrument for legitimising the trade of hazardous wastes rather than preventing it.86 The word “control” as used in the title of the Basel Convention already indicates that its purpose is the monitoring of waste trade and not its total prohibition.87
Many countries considered the agreement insufficient and argued for a full ban instead.88 It was argued that the Basel Convention left a lot of loopholes and it was criticised for not establishing a strong system to penalise violators.89 The
82 Ibid, Art 4, 2(b)–(c).
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agreement never provided independent enforcement provisions and it has been left to the parties to take such measures.90 As a consequence, countries such as the United States which have not ratified the Convention appear to suffer only little by not being a party. For this reason, it was argued that new examinations and amendments were needed in order to achieve the Convention’s goals.91The most harmful shortcoming of the Basel Convention appeared to be the recycling loophole. Waste was increasingly traded for the purpose of recycling and reuse instead of final disposal.92 In order to avoid scandals of waste dumping, more and more waste traders used the term recycling for their activities, which sounded more beneficial for people and nature. To many, recycling seemed to be a good thing because of its potential to provide jobs and to transform toxic wastes into useful things, that were both needed particularly in developing countries, but examinations of recycling equipment and chemical analyses revealed that in many cases recycling was nothing other than waste dumping by another name. This agitated the concerned countries to initiate ameliorations of the original agreement. The Group of 77 (“G-77”) body of developing countries in particular played a key role in promoting the idea of a global ban on toxic waste trading.93
At the first meeting of the Basel Convention in 1992, only a partial ban could be reached, determining that the trade of waste for disposal from industrialised to developing countries shall be prohibited.94 The issue of recycling was left open for further consideration. At the second meeting of the Convention in 1994, the proponents of a total ban refused to make any compromises.95 They accentuated the loopholes of the agreement and the proposals of industrialised countries and insisted on an expansion of the regulations. As a result, the “Basel Ban”96 was adopted in order to ensure a total ban of all forms of hazardous waste exports from industrialised OECD countries to all non-OECD countries.97 It was agreed that neither wastes intended for final disposal nor wastes intended for recovery or recycling should be exported any longer.
A total ban of waste trade for any purpose was mainly opposed by industrialised OECD countries, who partly attempted to beat the ban
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aggressively,98 but non-OECD parties expressed their concern as well. Oppo- nents argued that the “Ban Amendment” would violate the free trade principles of the General Agreement on Tariffs and Trade (“GATT”)99 and emphasised the significance of waste as a source of revenue for developing countries.100 The Basel Ban decision was not considered legally binding by its opponents because it was not an integral part of the agreement and it was claimed that it would have to be added to the Basel Convention through amendment.101Thus, the issue was voted on again at the third meeting of the Basel Convention in 1995. Despite massive opposition from a number of industrialised countries, the parties to the Basel Convention adopted the Ban Amendment by its decision III/1.102 To date, 65 countries have ratified the Ban Amendment,103 but it remains unclear whether this number is sufficient for it to become legally effective.104 Despite all these controversies, many countries have already incorporated the Ban Amendment into national legislation.105
In summary, one can say that the Basel Convention as it currently stands might be considered as too lenient to handle the increasing problem of e-waste. As it still has too many loopholes and no system that ensures the penalisation of violators, it is more than questionable if it can really enforce changes. Without doubt, the Basel Convention provides a lot of good guidelines for its signatories, but to be truly effective, the agreement needs to be improved.
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8. NATIONAL REGULATORY APPROACHES
Various countries have already implemented their own legislation concerning e-waste.106 In the following subsections, some of these approaches shall be introduced and critically examined. The main focus is New Zealand, but other regions are referred to as well in order to facilitate a comparative analysis.
8.1 New Zealand
In the previous sections, the problem of e-waste has only been described in general. In the following discussion, the dimension of e-waste shall be illustrated specifically in the context of New Zealand. In order to discuss already existing regulatory tools on both the international and national level and to evaluate suggested approaches for e-waste, it is essential to understand the current status of e-waste in New Zealand first.107
The volume of e-waste in New Zealand is remarkable. According to a survey conducted for the Ministry for the Environment in 2006, the number of computers and televisions used in homes and businesses was estimated to reach almost ten million in that year.108 Most of these devices were still in use, but approximately half a million monitors and/or TVs and a quarter of a million computer boxes were in storage in 2006. In regard to these figures, a deluge of disposed e-waste is predicted, which is worrisome, especially because of the CRTs contained in these devices. The figure of nearly ten million devices is equivalent to about 19,700 tonnes of lead that may eventually find its way into the waste stream.
In New Zealand, e-waste is commonly disposed of in landfills, but there are hardly any figures for the quantity of TVs, computers or monitors that end up at such sites.109 The Wellington City Council estimated that between 2 and 3 per cent of material that was disposed of in landfills in 2005 was electronic, which would be consistent with the 3 per cent level for e-waste of landfill
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surveys conducted in Europe. These percentages are relatively low compared to other waste streams, but in regard to the hazardous characteristics of e-waste, potential impacts should not be underestimated.110 It is worth noting that such e-waste is commonly mixed with conventional wastes without any pre-treatment and the consequences of such an approach cannot yet be calculated.111
The usual disposal method for TVs, computers and CRTs in New Zealand is landfilling.112 None of these products are classified as hazardous wastes and therefore they can be disposed of in landfills almost everywhere in the country. Typically, TVs and computers are stored in the house for a while and then they are brought to landfill collection points by the owners themselves or put at the kerbside for collection through local authorities.113 Either way, the products are dumped in landfills.
For computers, there are a number of options available besides these methods, but they commonly involve certain costs or efforts. Home users and small businesses have the opportunity to drop computers off at recycling or refurbishing companies, local authority recycling centres, or they can arrange for the products to be picked up by voluntary, industry-led recycling schemes, such as those organised by Dell114 or IBM.115 The opportunities for corporate businesses and government departments are even broader, as they are usually dealing with larger quantities of computer equipment.116 However, even if e-waste ends up at domestic recycling facilities, it cannot be guaranteed that it is processed in an appropriate manner.
Currently, the recycling infrastructure in New Zealand needs to be regarded as undeveloped and there are no efficient recycling solutions available for many types of e-waste, including in particular CRTs or plastics.117 The main reason
110 Computer Access New Zealand (“CANZ”), Submission to the New Zealand Government on the Waste Minimisation Act (15 May 2009) 2.
111 Ibid, at 29–30.
112 MacGibbon & Zwimpfer, supra note 107, at 29.
113 Ibid, at 21–22.
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for this lack of appropriate recycling facilities is that they would presently not be economically viable, which may be due to New Zealand’s geography and its small and dispersed population.118 These circumstances make the development of recycling infrastructure difficult and costly.One problem is that there are no domestic markets for recycled materials or at least these are too small, as they could make a recycling facility profitable. Another problem is that a recycling facility would need an assured supply of materials, which would require the development of cost-efficient collection mechanisms that do not exist at the moment.119 Further, already existing recycling facilities are usually rather small and are often not able to compete with foreign companies that operate on a larger scale. Capacities of recycling plants overseas are much higher than in New Zealand and only the establishment of domestic larger-scale monitor rendering plants could increase competitiveness.
Finally, efforts to enhance capacity building and recycling skills within the e-waste sector have only developed in recent years. The success of recycling schemes is dependent on industry training and specific skills and New Zealand has only just started to improve its knowledge in this field. It can also be assumed that research and development possibilities within the e-waste sector have not been used sufficiently until now. More environmentally friendly materials, innovative markets for recycled products, or improvement in e-waste processing could prove to be economically beneficial for New Zealand in the long term, but funders of research and development need to be persuaded that it is worth investing in such projects. There are many overseas recycling solutions that could be adopted, but there are presently no intentions to do so. Therefore, the options computer recyclers presently have in New Zealand are limited. They can recover and sell the reusable components of the devices; break them down for scrap materials; export them; store them; or dispose of their valueless remnants in landfills.120
The first option is hardly ever chosen, because single components such as power supplies, mice or keyboards are increasingly hard to sell. The useful parts of the computer are commonly stored or donated to community groups.
The second option, breaking down computers and other electronic devices in order to gain scrap materials that can be sold on to third parties, is extremely time-consuming and cost-intensive.121 Such activities may be considered the least profitable stage of the computer recycling process, because the value of scrap materials is steadily decreasing and the New Zealand scrap market can
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hardly compare with the lower prices of overseas scrap markets. The business could be more viable if organised as a conveyor-belt process on a large scale, with specialists working on different parts of the operation, but such facilities do not exist in New Zealand at present.122The third option is export. Due to its undeveloped recycling infrastructure, New Zealand is dependent on overseas facilities. E-waste is commonly shipped to foreign countries for the purpose of recycling. The main destinations for New Zealand e-waste exports are countries such as China, Taiwan, Singapore, Vietnam, India and Pakistan.123
New Zealand ratified the Basel Convention in 1994 and is thus obliged to fulfil its requirements.124 This means that everyone who wants to export e-waste from New Zealand to any other signatory countries needs to apply for a “Basel Permit” that can be submitted by the Ministry of Economic Development. According to the government, hazardous wastes are only exported to recycling and processing facilities which can be proved to meet international standards for environmentally sound handling of such wastes.125 The Ministry of Economic Development controls whether these facilities are providing ISO accreditation, government registrations and compliance with domestic legislation relating to environmental standards before approving any application for the export of wastes. Site visits to facilities in developing countries are undertaken as well. However, even though New Zealand has now been a signatory of the Basel Convention for a period of fifteen years, it has never applied for Basel Permits and not a single one has ever been issued.126 The export of wastes for the purpose of recycling is not covered by the Basel Convention. In this context, the question of whether the receiving companies are truly specialised on appropriate recycling, or if New Zealand is simply utilising the “recycling loophole” of the Basel Convention, remains open.
The fourth option for computer recyclers is storage.127 In many cases stor- age is used to postpone the final disposal of computers. A lot of recyclers and refurbishers store large numbers of computers mainly in the hope of efficient recycling solutions.128
The final option for recyclers is to dispose of the valueless parts of computers in landfills,129 thus contributing to the fact that landfills need to
127 Ibid, at 28–29.
128 Ibid, at 29. Recyclers who store computers are for example Remarkit Solutions in Wellington or Palmerton North PC Recycling.
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be considered as the main disposal site for e-waste in New Zealand. Private households, small and large businesses as well as recyclers are currently taking large quantities of e-waste to landfills, either intentionally or of necessity. Until now, the only barriers to this recourse are landfill charges and environmental conscience.
(a) International
As explained above, as a signatory of the Basel Convention, New Zealand is obliged to impose export restrictions on hazardous wastes. At this point, it is worth mentioning that only the original Basel Convention was signed and ratified, but not the Ban Amendment. Alongside countries such as Japan, Canada and Australia, New Zealand does not approve a total ban of the export of hazardous wastes intended for disposal, recovery or recycling. This decision has been made after careful consideration of the issues and is mainly due to the assumption that “the Ban Amendment is based on a false premise, namely that developing countries cannot process wastes for recycling in an environmentally sound manner”.130 It has been emphasised that Singapore, for example, has “world-class treatment and recycling facilities” even though it does not belong to the Annex VII group of OECD countries. The government considers that “rapidly developing countries have a strong demand for secondary raw materials to sustain the pace of social and economic growth” and further that “if a recycling or treatment facility within a developing country can demonstrate that it meets appropriate environmental standards ... it should not be disadvantaged simply because it is located in a developing country”. Therefore New Zealand has not ratified the Ban Amendment, but the government has made it clear that it would not stand in the way of implementation by those parties who wish to do so.131
(b) National
In general, the New Zealand Waste Strategy132 sets the framework for the question of how to minimise and manage waste. It is a non-legislative, non- binding document which was initiated by Local Government New Zealand and the Ministry for the Environment and published in March 2002. The New Zealand Waste Strategy classifies electronic goods as “special wastes” which cause particular problems and need special management. It is recommended
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that either the relevant business sector or central government should address these special wastes, so that regulations will be consistent throughout the country.133 To date, there are no specific laws focusing on e-waste management in New Zealand, but there is a variety of environmental legislation that is still of some relevance in this context, as illustrated below.
(i) Resource Management Act
The primary environmental legislation in New Zealand is the Resource Management Act 1991 (“RMA”),134 whose main purpose is to promote sustainable management of natural and physical resources. Among other things, this also includes the regulation of environmental effects of land disposal of waste. Under the RMA, the number of landfills in New Zealand could be reduced from 327 in 1995 to 60 in 2006 and the general conditions of landfills could be improved through more stringent regulatory requirements,135 but the legislation has had no direct effect on e-waste management so far. The RMA enables local or regional councils to establish consent conditions for landfilling or even to place a landfill ban on certain products. In order to ensure consistency on the national level, the Ministry for the Environment (“Mf E”) has created guidelines on landfill waste acceptance criteria,136 including maximum concentrations for certain substances, such as lead. Specific contaminants are examined in respect of their “leachability” in landfill conditions and if they exceed certain levels, the waste should not be accepted at landfills.137
The establishment of landfill waste acceptance criteria appears to be an effective means to ban certain hazardous products from land disposal, but there are still some limitations. It has to be recognised that it would only be a localised measure and even at this level it would be difficult to achieve such a ban.138 The conditions for a total ban are hard to satisfy and would require a robust scientific case proving the negative environmental impacts. Further, incentives to impose such a ban are low, as long there are no adequate alternative solutions available for this kind of waste. Thus, the RMA may not be considered as the appropriate regulatory tool to handle the problem of e-waste.
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(ii) Local Government ActThe main objective of the Local Government Act 2002 (“LGA”)139 is to enable “local authorities to decide which activities they undertake and the manner in which they will undertake them”.140 Among other things, the LGA requires local authorities to set up their own waste management plans and allows them to introduce waste levies in order to finance their implementation or bylaws in this regard. However, the legislation does not empower local authorities to impose such levies for the purpose of increasing disposal costs and thus shifting the economics towards recycling procedures.141 Consequently, LGA provisions may not be used as a tool to direct waste management policies in a certain direction, but if local authorities decide to offer an e-waste recycling service in their region, they are free to finance such projects by imposing disposal fees. If consumers are willing to pay a fee to cover the cost of the safe disposal of their e-waste, this concept could be used to bring forward the appropriate management of e-waste. Like the RMA, the LGA only provides for localised measures, but if successfully applied in one region, it might be at least an incentive for other regions to follow.
(iii) Waste Minimisation Act
Another piece of environmental legislation has recently been enacted that might have the potential to address e-waste on a national level. The Waste Minimisation Act 2008142 entered into force on 25 September 2008 and provides a new framework for managing and minimising solid waste in New Zealand, with the overarching aim of protecting the environment from harm and providing environmental, social, economic and cultural benefits.143
In the case of e-waste, the most promising regulatory tools provided by the Waste Minimisation Act are product stewardship schemes.144 Such schemes are commonly used to handle wastes which require particular management and should be separated from the conventional waste stream.145 Wastes such as tyres, used oil, cars or packaging pose certain risks for the environment and public health and thus require increased attention. Because of its hazardous substances, its fast-growing volume and its problematic disposal, e-waste is considered as waste that can be most effectively managed via these schemes.
145 Mf E, Product Stewardship and Water Efficiency Labelling — New Tools to Reduce Waste (August 2006), at <http://www.mfe.govt.nz/publications/waste/product-stewardship-water- labelling-aug06/product-stewardship-labelling-aug06.pdf> (accessed 16 June 2009).
LawProduct stewardship schemes may be regarded as a “diluted extension of the ‘polluter pays’ principle”.146 This principle is based on the idea that generally the polluter should pay for the damage that has been caused by the polluting acts.147 In the case of e-waste, it is difficult to determine who exactly should be considered as “the polluter”, because one could focus either on the producer who has created the product and placed it on the market or on the consumer who will finally dispose of the product. Instead of overburdening one of these parties, the product stewardship approach is based on the principle of shared responsibility between all parties involved in the whole life cycle of a product. Producers, importers, brand owners, retailers and others are required to accept responsibility for all environmental impacts of products that might occur from their beginnings in the manufacturing process through to their use and finally their disposal.148 Because it addresses all parts of a product’s life cycle, the Mf E defines product stewardship schemes as a “cradle to grave” tool.149 At all of these stages measures can be taken to reduce environmental impact. The most commonly used methods include product redesign, consumer information, collection and recycling schemes, special financing mechanisms, deposit refund, or advance disposal fee schemes.150For example, producers could work on new designs for their products that make them easier to recycle in the end or they could categorically abstain from using certain substances. Further, consumers could be influenced in their purchase choices by providing them with detailed information about product components and potential risks and they could be encouraged to dispose of their electronic equipment in an appropriate manner. This could additionally be supported by organised collection systems (often referred to as “take-back schemes”), making it as easy as possible for consumers to ensure that such products do not end up in landfills. Financing mechanisms usually mean that the producer of an electronic device is required to absorb the costs of the disposal or recycling of the product or to pass these costs on to the consumers in the form of higher prices.151 Basically, the price of the product will reflect the costs of the environmental damage it is likely to cause. The list of possible methods is long and generally depends on the nature of the waste and the industry concerned.
The Waste Minimisation Act provides the framework for both voluntary and
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mandatory product stewardship schemes and their governmental accreditation.152 Currently, there are already several voluntary, industry-led product stewardship schemes in existence, including approaches for agrichemical containers, computer equipment, paint, batteries, packaging, oil, cell phones and other products.153 Under the Waste Minimisation Act, these programmes are further encouraged and additionally might be accredited by the government.154Product stewardship schemes on a voluntary basis have the advantage of more flexibility, but they also present the risk of so called “free-riding”.155 “Free-rider” is a term used for businesses that do not actively participate in a programme but nevertheless benefit from it and thus threaten the scheme’s successful development. In order to avoid such activities, the Waste Minimisation Act allows for regulations to be developed to control free-riders, but it needs to be emphasised that these regulations would be limited exclusively to that purpose.156 For example, such regulation could include controls on product disposing, manufacturing or sale, but it could not force an industry sector to develop a product stewardship scheme.157
This concept could theoretically have an efficient outcome, but it entails that those involved share a sense of environmental responsibility and are willing to cooperate.158 From an economic point of view, the consumer does not benefit from paying a higher price that reflects the costs of environmental damage a product might cause and thus is likely to buy the less expensive product.159 Only a monopolist would be able to shift such costs on to its customers and maintain profitability.160 To put it another way, product stewardship schemes can only be effective if the environmental responsibility of all participants outweighs their economic interests. Product stewardship schemes generally risk ineffectiveness because of the lack of any enforcement mechanisms.161 While such regulations might be reasonable, they can simply be ignored by anyone involved.
In case these voluntary schemes are not sufficient or if a product
161 Rob Courtney, “Evolving Hazardous Waste Policy for the Digital Era” (2006) 25 Stan Envt’l L J 199, 218.
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stewardship scheme is regarded as essential for handling a certain product but not likely to be introduced, the Waste Minimisation Act contains provisions for declaring such schemes mandatory.162 The Minister for the Environment is able to determine a product as a “priority product” if he is convinced that this product might cause significant environmental harm when it becomes waste or if there are significant benefits from reduction, reuse, recycling, recovery or treatment of the product and if he believes that a product stewardship scheme is an effective means to handle this product.163 As soon as a product is declared to be a priority product, a product stewardship scheme has to be developed for this product and accreditation of the scheme must be obtained.164A mandatory system would have the advantage of ensuring governmental control over the performance of product stewardship activities and it would provide clear performance expectations.165 In addition, it would prevent the risk of free-riders and thus provide equal conditions for producers and at the same time more certainty for all stakeholders. Once a mandatory scheme has been established, there will be a legal requirement to join an accredited product stewardship scheme, and if a company refuses to do so, it will not be able to sell their products in New Zealand.166
However, mandatory product stewardship schemes would also be very time- consuming and cost-intensive to implement; and compared to the voluntary model, there would be a lack of flexibility. The government would be required to oversee the development of such schemes, to monitor them and to enforce compliance of all stakeholders, which would in turn result in increased administrative costs.167 In order to be efficient, a mandatory scheme needs to be precisely targeted and well designed; otherwise it could even have the potential to impose growing costs on the economy. In order to combine the strengths of voluntary and mandatory product stewardship schemes and to balance their failings, both approaches have been incorporated in the Waste Minimisation Act.
Currently, no products have been determined as priority products by the Minister. Three products have been identified as potential candidates — namely, agricultural chemicals, used oil, and refrigerant gases.168 Computers, computer accessories and televisions were assessed as well, but this group has not been targeted for further investigation in terms of the need for a mandatory scheme.169
162 Ibid; see Waste Minimisation Act, Part 2, s 10. 163 Waste Minimisation Act, Part 2, s 9.
167 Mf E, Product Stewardship and Water Efficiency Labelling, supra note 145, at 11. 168 Mf E, Waste Minimisation in New Zealand, supra note 135, at 21–23.
169 Ibid, at 23.
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E-waste is considered to be less harmful than the selected products listed above, so that voluntary schemes are regarded as sufficient for now. In case voluntary schemes prove to be ineffective over a period of two to three years, the Ministry will undertake further research in order to find out if a mandatory scheme is essential for this group of products. The same applies to lead acid batteries and mobile phones, which are covered by the term of e-waste as well.170However, considering the extent of the e-waste problem as illustrated in previous sections, it appears more than questionable if such a perception is justified. Accordingly, the Computer Access NZ Trust (“CANZ”)171 emphasised that e-waste needs to be elevated to priority status among the three other selected products in their Submission to the New Zealand Government on the Waste Minimisation Act.172
The main argument put forward by CANZ for a mandatory scheme is that e-waste needs to be considered a unique problem that requires increased public awareness and stricter regulations. The current volume of e-waste, its exceptional rate of expansion, and its potential harms for the environment and public health indicate that it is essential for e-waste to be classified as a priority product. The already existing regulatory tools for e-waste management are not capable of handling a problem of such extent and there are no alternatives available to mandatory e-waste product stewardship schemes. Therefore, a new regulation that specifically addresses the problem of e-waste is strongly recommended.
(iv) Voluntary projects
The most successful project to date has been the annual “eDay”.173 This event was designed to raise awareness about the hazardous substances in computer equipment and to promote alternatives to landfill disposal and since 2006 has steadily increased its extent.174 Basically, eDay is an e-waste collection event for computers and computer-related equipment, combined with educational elements and surveys. The first project was initiated by CANZ with support of Dell and was piloted in Wellington, but within two years the project expanded to 31 centres and 100 partners. In 2008, about 1,000 tonnes of e-waste was collected, which sounds impressive, but this amount only represents less than 10 per cent of the number of computers being imported into New Zealand every
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year. Furthermore, the 23,000 computer monitors and almost 20,000 computer boxes collected in this year is equivalent only to less than 5 per cent of the total quantity of historic e-waste.175While voluntary, industry-led take-back schemes such as those initiated by Dell, IBM or HP are helping to avoid e-waste becoming part of conventional waste streams and smaller events of local communities are contributing to achieve this aim as well, they need to be accompanied by enforceable judicial regulation. Thus, although eDay may be considered helpful in addressing the problem of e-waste in New Zealand, it is not a long-term total solution.
8.2 Member States of the European Union
The European Union appears to be leading the charge towards a less harmful management of e-waste. It has ratified and implemented the Basel Convention as well as its Amendment and has established its own legislation complying with the main objectives of the international agreements.
In 2002, the Waste Electronic and Electrical Equipment Directive (“WEEE Directive”)176 and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive (“RoHS Directive”)177 were passed by the European Parliament and the Council of the European Union. Both Directives were implemented in response to the growing amounts of e-waste generated in the European Union (“EU”) and the awareness of the hazardous risks involved with such wastes.178 Together, these two Directives should serve as a comprehensive e-waste management system for the EU.
The European authorities considered the management of WEEE an issue that could only be dealt with effectively if regulated at Community level and thus created policies legally binding for all member states.179 In particular, a unified approach was favoured in order to avoid internal market distortion and to establish standard levels of environmental protection throughout the EU.180 It was argued that differing national e-waste legislation might lead to disparities of financial burdens for economic operators and the effectiveness of national recycling policies could be impaired because it might be cheaper to transfer
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e-waste to other countries instead.181 The WEEE trade within the EU could have been influenced by diverging requirements as well. Thus, the European authorities decided there was a need for harmonisation in order to solve the problem.
With the implementation of these Directives, the European Union has introduced product-oriented environmental regulations which attempt to address the full life-cycle impacts of products.182
The main objectives of the WEEE Directive are to prevent the generation of waste electrical and electronic equipment and to replace waste disposal activities with reuse, recycling or other recovery forms of wastes,183 with the overarching aim to “preserve, protect and improve the quality of the environment, protect human health and utilise natural resources prudently and rationally”.184 In order to achieve this goal, the legislation is based on the principle of Extended Producer Responsibility (“EPR”) and on the idea that generally the polluter must pay.185 The EPR principle has been implemented through the establishment of a take-back scheme for electronic devices.186 In general, the EPR principle may be defined as:187
an environmental protection strategy to reach an environmental objective of a decreased total environmental impact from a product, by making the manufacturer of the product responsible for the entire life-cycle of the product and especially for the take-back, recycling and final disposal of the product. The Extended Producer Responsibility is implemented through administrative, economic and informative instruments. The composition of these instruments determines the precise form of the Extended Producer Responsibility.
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Basically, the EPR approach shifts the entire responsibility of managing e-waste from the government to the original manufacturers of the product.188 The manufacturer is supposed to balance all environmental impacts caused by their product at all stages of its life cycle, including the funding of any costs involved in its disposal.189 Usually, the manufacturer’s responsibility for their product ceases as soon as the item is sold, but the EPR approach goes further.190 It requires manufacturers to take back their products after the consumers have used them or to pay a fee in order to finance the collection and recycling of the products through other organisations. The consumer is completely released from any financial burden, such as municipal taxes for disposal.191The reason for such a concept is that the WEEE Directive regards the EPR approach as consistent with the “polluter pays” concept, thus prefiguring that the traditional manufacturer can be characterised as the polluter because they create products and sell them to consumers.192 The main idea of this approach is to reduce the environmental damage that results from disposal of products.193 Proponents of the EPR approach hope that such policy might serve as incentive for producers in the future to design their products in a less toxic manner and make them easier to recycle.194 In this respect, the EPR principle is similar to product liability law, which is also spurring improved product designs.195 As it is much harder to enhance the environmental performance of a product once it is on the market, the EPR approach is utilised in order to achieve this aim at an earlier stage.196 Producers are most likely to accept their duties if they are confronted with legal, physical or financial responsibilities for the impacts their products have on the environment.
The provisions of the WEEE Directive establish criteria of how to deal with products such as large and small household appliances, IT and telecommunications equipment, consumer and lighting equipment, electrical and electronic tools and others, thus creating unified environmental standards
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at Community level.197 They include specifications about product design, separate collection of WEEE, its treatment and its recovery, and financing mechanisms.198 The fifth provision in particular underlines the principle of Extended Producer Responsibility, as it requires member states to establish a system that allows private households to return certain products free of charge to the original distributor.199
The main purpose of the RoHS Directive is to establish restrictions for the use of hazardous substances in electrical and electronic equipment (“EEE”).200 In regard to the risks hazardous substances pose to public health and the environment, the European authorities considered the prohibition and limitation of these substances as the most effective way to protect both humans and nature.201 Consequently, the RoHS Directive prohibits the use of lead, mercury, cadmium and other harmful substances in new electrical and electronic devices that are put on the market,202 defines maximum concentrations of these substances that shall be tolerated,203 and encourages member states to ensure that they are substituted by more environment-friendly alternatives.204
Two main advantages may be mentioned in relation to the RoHS Directive. The provisions will ensure that electronic products will be safer in the future and this in turn will cause a substantially decreased threat to employees at foreign recycling plants who have to work with these materials.205 Hence, even if the e-waste trade cannot be constrained sufficiently, the RoHS Directive still confers benefits for public health and nature.
The WEEE Directive and its underlying EPR approach as well as the RoHS Directive have both been much lauded,206 but at the same time critiques have
199 McKenna, supra note 61, at 125–126, referring to the WEEE Directive, Art 5. 200 RoHS Directive, supra note 177, Art 1.
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been made too. For example, it has been argued that the costs of implementing EPR principles in the f ield of waste management might outweigh the environmental benefits of such an approach.207 Separating WEEE from the conventional waste stream as well as collection and disposal efforts will require massive amounts of money. Another point of criticism is that the EPR principle might not provide sufficient incentives for manufacturers to design their products in a more environmentally friendly manner because it allows manufacturers to share collective responsibility for WEEE.208Article 8 of the WEEE Directive allows producers to participate in collective e-waste management schemes instead of taking individual respon- sibility.209 Hence, it might be argued that manufacturers are not likely to improve the environmental profile of their products if they do not have an individual responsibility for the whole life cycle of these items. Such individual responsibility could occur if the producer is forced to pay the end-of-life costs for their products on the one hand, but could capture savings in these costs by redesigning these products on the other.210 Companies would individually benefit from altering their product design and thus would be more motivated to do so. In contrast, a collective responsibility is likely to give only weak incentives, because there are fewer reasons for manufacturers to improve their product design if they will be charged for end-of-life waste management in conjunction with their industry branch as a whole. In other words, if companies are not individually rewarded for their improvements in product design, they will not change them.
Opponents of the EPR approach have also claimed that it is forcing manufacturers to become experts in the garbage collection industry.211 Producers are encouraged to improve their product design towards better recycling possibilities, but historically, recyclability has never been a design objective for manufacturers.212 As producers are no specialists in the field of recycling, they are likely to be less efficient than independent companies who are exclusively dealing with recycling.213
The RoHS Directive includes issues of concern as well. Considering the fact that its provisions prohibit substances that are ubiquitous in electronic products, the RoHS Directive might be perceived as “tough medicine” for the electronics industry.214 It has been claimed that the restrictions go too far and that they
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might lead to inferior products. In order to comply with the RoHS Directive, drastic design changes need to be made, and it is feared that engineers might be forced to rely on alternative, unproven technologies. As a consequence, the RoHS Directive could have negative impacts on public health and safety instead of protecting it in the long term. In other words, the main critique focuses on the fact that essential substances of electronic products have been banned before any thought has been given to secure alternatives.Besides these theoretical considerations, impact assessments have proved that the WEEE Directive and the RoHS Directive apparently fail to achieve their goals. It has been revealed that only one-third of EEE has been treated in line with the laws, while the other two-thirds was disposed of in landfills or shipped to foreign countries.215 Years after the implementation of the Directives, illegal trade to non-EU countries is still widespread.216 In addition, many electrical and electronic products that are not complying with the Directives have been found in the European Union.
Within the first years of the Directives, a number of technical, legal and administrative difficulties became apparent which in turn led to unexpected costs and burdens on market actors.217 In recent years, various other European legislation218 of relevance to waste management has been introduced and thus complicated the application of both the WEEE Directive as well as the RoHS Directive. As a consequence, the laws have been revised in order to improve their implementation and enforcement and to make them more compatible with other European environmental laws. The main objectives of the revised Directives219 are simplification, clarification of scope and definitions, decreased administrative burdens, as well as the establishment of new and more ambitious
8&format=HTML&aged=0&language=EN&guiLanguage=en> (accessed 6 June 2009).
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collection and recycling targets. Further, they seek to constrict the illegal trade of EEE.220
8.3 United States
In the United States, there are currently no federal legal regimes that seek to solve the problem of e-waste.221 Since 1990, no federal laws addressing environmental problems have been passed at all.222 Technically, they are not even affected by the provisions of the Basel Convention, because they have never ratified the agreement.223 Among all industrialised countries, the United States is also unique in not having any national EPR mandates.224
The only law relevant for e-waste on a national level is the Resource Conser- vation and Recovery Act (“RCRA”) enacted by Congress in 1976 in order to serve as a framework for national policies on the management of solid wastes.225 However, in relation to the management of e-waste, the RCRA needs to be considered deficient in many respects.
The RCRA provides guidelines for the disposal, transport, storage and treatment of hazardous wastes,226 but the requirements do not apply if an entity produces less than 100 kg of hazardous waste per month, because in this case they have to be considered a “small quantity” generator.227 Exceptions are also made for small-scale generators of hazardous wastes, such as households, hotels, campgrounds and other facilities offering residential services.228 In sum, under the RCRA, households in the United States can freely dispose of their electronic products no matter how toxic they are, whereas hazardous
228 Ibid, referring to 40 C.F.R. § 261.4(b)(1) (2004).
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wastes generated in manufacture are stringently regulated.229 As a consequence, millions of tonnes of hazardous wastes generated by private households every year are not covered.The distinction between hazardous wastes generated by manufacturers on the one hand and private households on the other clearly illustrates that the RCRA is focusing on the process of production rather than regulating environmental hazards from products themselves.230 This indicates that US policies are strongly diverging from product-oriented European schemes.231 Further, the RCRA has established exemptions for wastes that are destined for recycling,232 thus leaving the same loopholes as described in the context of the Basel Convention. It is also important to note that even in the cases where the RCRA can be applied, the legislation fails to set up requirements for the receiving nations, so that only little oversight of the trade occurs.233
However, even though not regulated on a national level, the problem of e-waste is well recognised in the United States. Similar to New Zealand, the current federal approaches to handle e-waste are voluntary product stewardship schemes.234 The US Environmental Protection Agency (“EPA”) engages in a number of voluntary programmes which are focusing on reducing environmental impacts caused by electronic products, such as the Design for the Environment Program and the Electronic Product Environmental Assessment Tool (“EPEAT”).235 EPA considers product stewardship schemes as another form of Extended Producer Responsibility, but emphasises that there is a need for a shared responsibility between all stakeholders involved in the life cycle of a product.236
In addition, EPA is sponsoring the Federal Electronics Challenge (“FEC”), a voluntary programme that provides help for federal agencies to manage their electrical and electronic equipment.237 On average, the federal government spends about $68 billion on IT equipment and services per year 238 and thus has the potential to provide leadership in the environmentally sound management of
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electronic devices. The FEC assists federal agencies to select environmentally preferable devices, to reduce energy during their use, and to dispose of items in an appropriate manner. The immense purchasing power is used in order to provide incentives for the electronics industry to adopt stewardship obligations and to increase general awareness about such systems.239Even though not legally binding, these programmes may be considered good starting points towards the development of a solution for the e-waste crisis.240 They all increase public awareness of the risks involved in e-waste and have already motivated a number of leading manufacturers to initiate their own voluntary take-back programmes.241 Some Congressmen have also tried to raise congressional awareness of the e-waste problem and aimed to enforce federal electronic waste regulation, but so far all attempts have been unsuccessful.242
The issue of e-waste is mainly driven by single states themselves, who are frequently passing their own mandatory laws relating to e-waste.243 Currently, 19 states and one municipality have passed e-waste regulations.244 Most of them include landfill bans in order to separate toxic substances out of the waste stream, export restrictions or recycling standards, but they vary in their funding mechanisms.245 Green labelling on a voluntary basis is also used as a means to promote recycling and to develop consumers’ preferences in purchasing products.246 States such as California, Maryland, Maine and Washington have implemented legislative provisions on the issue of e-waste that resemble the provisions of the WEEE Directive.247 All four legislations seek to encourage and
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create a recycling system that is capable of accommodating e-waste, but there are variations and they differ in their methods of financing such systems.248Maryland and Maine have both introduced shared responsibility between producers and local government.249 In Maryland, manufacturers of more than 1,000 computer or video display devices are obliged to pay a registration fee, which they can reduce about tenfold if they establish an approved take- back programme.250 These fees are utilised by counties and municipalities for implementing local recycling plans and methods for separate collection and recycling of such devices. The legislation in Maine requires manufacturers to finance the handling, transportation and recycling of televisions and computer monitors, while municipalities are charged to create a system for delivering these wastes to a consolidation facility in the region. In contrast to the European schemes, both of these regulations oblige manufacturers as well as local government to fulfil specific tasks and do not shift the responsibility entirely on to the manufacturers.
Washington places the entire burden on the producer and thus closely follows the WEEE Directive.251 Manufacturers of televisions and computers are required to establish a programme for the collection, transportation and recycling of such items if they are discarded by consumers and they must also bear the expenses of its implementation.252 In relation to this programme, producers have some flexibility because they can either join a central plan run by Washington State or create their own recycling programmes.253 In addition, an annual administrative fee has to be paid and they have to register with the state.254 The Washington approach may be considered as the most burdensome for producers, as they are forced to pay the entire costs of recycling.
In contrast, California mandated the Advanced Recovery Fee (“ARF”), a funding mechanism that charges the consumer with up-front fees.255 At the time of the purchase, they have to pay a disposal and/or an additional recycling fee in order to ensure that all costs are already covered at the time of the purchase and not at the point of discard.256 The entire financial burden is placed on the consumer in order to raise their environmental awareness and encourage them to bring back the product for recycling.257 In addition, state agencies are required
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to purchase environmentally friendly products from manufacturers.258 It is also worth mentioning that the Electronic Waste Recycling Act (“EWRA”) provisions are tied to the RoHS Directive regarding the use of certain hazardous substances. Manufacturers are required to phase out specific toxic substances from their electronic products, which will result in both safer products and a decreased threat for foreign workers who eventually have to recycle them.259The introduction of an ARF is the most noticeable difference to the European approaches. As the number of recyclers and collectors has almost tripled since passing of the legislation, the approach appears to be promising.260 Recyclers were able to increase their profits through the state payments and the revenues from the materials sold from the devices and special recycling collection events also contributed to rising gains.261 Nevertheless, the ARF approach has been criticised for shifting the entire financial burden to the consumer and taking away any responsibility from the producer. It has been estimated that such a system will have severe economic effects in many respects.262
First of all, consumers who want to avoid additional costs can easily purchase their electronic devices at other places and this in turn could affect manufacturers located nearby other states. Retailers could be disadvantaged as well because electronic devices might be ordered online to avoid the fee. Thus, increased unemployment rates could be the consequence of such a policy in the long term. Concerns that consumers are likely to simply avoid the fee appear obvious, but it is questionable if they will be realised, especially if one considers the maximum markup of $10 on computers that usually cost more than a hundredfold.263 The EWRA leaves a recycling loophole as well, as has been claimed especially by the Basel Action Network (“BAN”).264 Exporting e-waste is legal in the United States, both on the federal as well as single state level. Even though recycling is increasingly promoted, the percentage of waste that actually ends up in appropriate interstate recycling facilities is low.265 Responsible recycling appears to be slight.266 Finally, design incentives for
261 Ibid, at 172–173.
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producers are missing completely.267 There is no motivation for manufacturers to create less hazardous products if they are not required to take them back and do not bear any costs of disposal.268 In order to be effective, e-waste regulation needs to ensure that the benefits of recycling electronics outweigh the efforts and costs.269 According to the opponents of the California legislation, the ARF fails to achieve this aim.270Although these single state actions need to be regarded as positive, because they display increasing environmental concern and the willingness of the states to take action, they are also leading to the consequence that e-waste legislations in the United States may be considered as a patchwork of policies.271 The inconsistencies of e-waste policies from state to state might result in burdensome compliance costs for manufacturers.272 For example, in the year 2006 fifty-four electronic waste bills were proposed which either established duties to recycle electronic waste or prohibited the disposal of electronic waste in landfills.273 Even though only a small percentage of these bills have been enacted, the figures clearly indicate that manufacturers might have enormous difficulty complying with all these different standards.
8.4 Japan
Japan may be considered as the world’s leading country in development and manufacturing of electronic equipment.274 Similarly, they are assumed to be the most advanced and experienced country in respect of recycling measures for such equipment.275 Due to the severely short lifespan of Japanese municipal disposal sites and a densely populated urban environment, the government has taken steps to promote recycling and resource conservation.276 Consequently, Japan has established a distinctive framework of recycling-related laws. Issues of reducing waste and promoting recycling have been covered systematically by
<http://www.informinc.org/japanepr.pdf> (accessed 28 May 2009).
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legislation within recent years and now policies for every type of waste are in place.277 The legislation relevant for e-waste is The Home Appliance Recycling Law278 (“SHAR”) and The Revised Law for Promotion of Effective Utilisation of Resources279 (“Recycling Promotion Law”), which both went into effect in 2001.
SHAR covers bulkier electrical and electronic products such as televisions, air conditioners, refrigerators or washing machines.280 With the introduction of SHAR, the Japanese government has created a system of shared responsibility between producers, retailers, government and consumers.281 Like the European schemes, the Japanese schemes are based on EPR strategies as well,282 but instead of focusing on the manufacturer alone, they seek to involve all stakeholders alike. Perhaps the most noticeable difference to the European approach is that manufacturers have individual responsibility for their own products under SHAR.283 They are forced to collect and recycle their own appliances and to finance these activities. Two consortia were formed by the industry, and within each group manufacturers have to make sure that regional consolidation centres are established and the transport of collected products from these sites to recycling facilities is organised.284 Retailers as well as the government are responsible for the transport of discarded products to the consolidation centres provided by the manufacturers.
In order to finance all these activities, consumers are required to pay “end- of-life fees”, which are composed of a collection fee and a recycling fee.285 Consumers have to pay the collection fee when dropping off their discarded products and at the same time they have to prove they have paid their recycling
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fee. Commonly these fees are insufficient to cover the entire costs of recycling, so that the remaining costs have to be paid by the manufacturers. The main idea of such a scheme was to encourage competition.286 Manufacturers should be given incentives to produce items that are easier to recycle and thus decrease the disposal costs for consumers. Even though the fees remained consistent in each product category, in practice manufacturers still have the opportunity to invest in greener product design and gain competitive advantages. Even so, the demerits of end-of-life fees are obvious, as they shift the financial burden mainly to individual consumers. As a consequence, illegal dumping by consumers unwilling to pay the fees increased following the law’s introduction.287 The Japanese government could reduce such activity by implementing strict monitoring systems, but the risk remains.The Japanese schemes show similarities to the European approaches, but they extend the underlying EPR principles at some points. Further, SHAR does not address as many products as the WEEE Directive and only targets the most important electronic devices. It is also worth noting that Japanese manufacturers may be considered world leaders in environmental design, even though they did not introduce material restrictions as embraced by the European Union’s RoHS Directive.288 In particular, the reduction of hazardous substances such as lead or brominated flame retardants has been successfully achieved without any governmental enforcement.289 For example, efforts to phase lead out of electronic equipment have been taken since 1998 already.290
The Recycling Promotion Law determines industries and product categories that require strategies of reducing, reusing and recycling and stipulates details of voluntary actions that should be taken by businesses to fulfil this aim.291
Personal computers have been identified as such products.292 The Recycling Promotion Law requires discarded computers to be recycled through a governmental system too and is based on the same principles of shared
<http://www.meti.go.jp/policy/recycle/main/english/law/promotion.html> (accessed 28 May 2009). Currently 10 industries and 69 product categories have been designated.
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responsibility as SHAR.293 What both pieces of legislation have in common is the requirement for manufacturers to establish collection and recycling systems, whereas consumers have to pay end-of-life fees to finance the scheme. The main difference is that the consumer is burdened with varied costs depending on the date the discarded PC was purchased.294 For computers purchased before October 2003, consumers will have to pay end-of-life fees, for those after this date, recycling fees will be included in the price of the product.295 The collection of discarded computers is organised by the federal postal service, which is a unique approach in this context.296 Japan Post provides 20,000 offices where computers can be dropped off and in addition a service is offered to collect products from private residences.The recycling programme is mainly operated on behalf of manufacturers by The Japan Electronics and Information Technology Industries Association (“JEITA”), an industry trade association that seeks to ensure industry compliance with the legislation.297 Ninety-eight per cent of all producers involved in the PC market delegate their recycling obligations to JEITA. In order to achieve their goals, JEITA also established the “Japan Green Procurement Survey Standardisation Initiative” (“JGPSSI”), which basically provides guidelines for companies to implement “greener” design theory.298
9. CONCLUDING COMMENTS
The preceding considerations indicate that e-waste and all its associated problems deserve increased attention. The volume of e-waste and its extremely rapid expansion rate, its hazardous risks for humans and the environment, inappropriate disposal procedures, and the increasing international trade with e-waste classify this topic as an issue that cannot be ignored. There is an urgent need to address the problem more intensively and to find more environmentally friendly solutions.
E-waste poses unique policy challenges. The Basel Convention is the main environmental regulation concerning e-waste on an international level, but it leaves loopholes and thus fails to handle the international trade with e-waste sufficiently. The Ban Amendment would provide increased protection for
293 Pak, supra note 8, at 272; see also INFORM, PC Recycling in Japan, supra note 288. 294 Ibid.
295 INFORM, PC Recycling in Japan, supra note 288, at 1. 296 Ibid, at 1–2.
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developing countries, but many countries refuse to ratify it. Their concerns might be justified, because a total ban no matter for what purpose has the potential to disadvantage countries which are developing rapidly. Many countries rely heavily on the trade in raw materials, so that too strict regulations could ruin them in an economic respect. Further, the European approach has revealed that illegal dumping continued even following implementation of the Ban Amendment, thus indicating that even a strict ban might fail to reduce such activities.It may be suggested that the problem of e-waste should rather be tackled at its roots. An ideal solution for e-waste would be its reduction or even prevention by focusing on more environmentally friendly alternatives, including greener design and the abandonment of hazardous components. This would also lead to a less harmful international trade in e-waste, as the likelihood of environmental pollution and health risks for workers would be significantly reduced. A total ban would not necessarily be needed if the hazardous risks of e-waste could be decreased. At its best, the trade in raw materials could economically benefit both industrialised and developing countries alike. Such an ideal solution would require environmental consciousness on a global level, which can hardly be assumed. Improvements in the field of electronic waste are not likely to be achieved by voluntary approaches, as economic aspects will always play a key role in any kind of proceedings. Enforceable regulations and effective penalty systems for those who are not fulfilling obligations are needed for appropriate e-waste management. However, the Ban Amendment might not be the best solution to this complex problem.
Various countries have approached e-waste differently. Basically, three different models have been implemented in national legislation, namely the EPR approach, product stewardship schemes, and ARF systems. The polluter pays principle is prevalent in all of these models, but each classifies another stakeholder as “polluter” and thus as responsible to balance damages. The EPR approach focuses on the producer, product stewardship schemes create a system of shared responsibility between all stakeholders, and ARF systems shift the burden onto the consumers. The EPR approach and product stewardship schemes especially are closely related to each other and can be implemented in various forms. They vary in their financing mechanisms and are creating individual or collective responsibilities.
New Zealand has developed quite progressive methods to regulate special wastes, at least in theory. E-waste needs to be covered by a mandatory product stewardship scheme as provided by the Waste Minimisation Act 2008. Further efforts have to be taken to improve the country’s recycling infrastructure. Despite New Zealand’s special characteristics, it might be worth investing in recycling and resource recovery projects to establish alternatives to the export of e-waste. Even though there might be reasonable arguments to export e-waste
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to appropriate recycling facilities abroad, it is unjustifiable that the majority of e-waste generated in New Zealand is currently legally disposed of in landfills. It should at least be ensured that e-waste can be appropriately processed domestically as well as abroad.The WEEE Directive and the RoHS Directive are legislation pointing in the right direction, but they might need to be improved at some points. The main demerit of the WEEE Directive appears to be the aspect of collective responsibility of producers. As proved by the Japanese models, it seems to be more effective to enforce individual responsibility for manufacturers. The incentive to create greener products is much higher if producers can individually gain the economic benefits of their procedures. The RoHS Directive needs to be regarded as exemplary, but it has to ensure that realistic goals are set and manufacturers have enough time to find alternatives.
The United States has failed to establish a federal legislation concerning e-waste, and the implementation of different single state regulations has caused a patchwork of policies which hampers compliance. Such activities reveal a general awareness of the e-waste problem and a willingness to take action, but without a unified approach the US will not be able to handle the e-waste problem effectively.
The Japanese models appear to be the most successful. Their system of shared responsibility of all stakeholders combined with individual responsibility of manufacturers and realistic goals in the long term has the potential for an efficient management of e-waste. The only aspect that could be criticised is that it seems to overburden consumers and thus provoke illegal dumping, but there might be ways to correct this deficiency and to ensure that all stakeholders are equally charged.
Even though generation of e-waste might not be completely avoided, attempts to reduce e-waste quantities and to enhance greener design of electronic devices should be intensified and further encouraged. Some of the national legislation serves as a good example for other countries to follow. At present, mandatory product stewardship schemes, whereby all stakeholders are burdened to the same extent and manufacturers are individually responsible for their products, appear to be the most efficient solution for the management of e-waste.
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