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California's Electronic Waste Recycling Act: California takes the battle against electronic waste to manufacturers, retailers and consumers

Charles H. Pomeroy

Legislative bodies around the world are addressing issues arising from stockpiles of electronic waste (increasingly referred to as "e-Waste"). California, true to form, is at the forefront. Acting on estimates that more than 6,000,000 obsolete computer monitors and television sets are stockpiled in California households, and that more than 10,000 become obsolete in California every day, the legislature enacted the Electronic Waste Recycling Act of 2003, Senate Bill 20 (Sher).

When fully implemented, the Act will establish a comprehensive scheme for disposing of and recycling electronic devices containing cathode ray tubes ("CRTs") and Liquid Crystal Display ("LCD") panels. The most onerous requirements--including a ban on the sale in California, after January 1, 2007, of devices that do not conform to certain European standards--are imposed on manufacturers. For now, requirements on manufacturers to provide notice to retailers, and for retailers to begin collecting recycling fees, have placed manufacturers and retailers in a "catch-up" mode.

This article summarizes requirements imposed on manufacturers and retailers of electronic devices sold to consumers in California, and identifies dates on which those requirements take effect. Readers should note that emergency regulations have been published at Title 14 of the California Code of Regulations, Division 7, Chapter 8 (by the Integrated Waste Management Board) and at Title 22 of the California Code of Regulations, Division 4.5, Chapter 10 (by the Department of Toxic Substances Control).

The first requirements under the Act took effect on April 1, 2004. As of that date, every "manufacturer" of a "covered electronic device" was required to identify each "retailer" of devices subject to the Act. A "manufacturer" includes a person who manufactures a covered device sold in California and a person who sells a covered device in California under that person's brand name. Generally, a "covered electronic device" is a video display device of more than four inches, measured diagonally. A "retailer" is a person who sells, leases or transfers a covered device in California to a consumer.

On July 1, 2004, it became unlawful to sell a covered electronic device in California unless the DTSC or IWMB determined that the manufacturer demonstrated compliance with the Act. Given ambiguities in the means for securing determinations of compliance, this prohibition is problematic for manufacturers, particularly those that may not have made their required notifications. Nevertheless, this implementation date remains in effect.

On November 1, 2004, retailers will be required to begin collecting a recycling fee on the first sale in California of a covered electronic device from a retailer to a consumer. The intent is to cover the cost of recycling the device. As noted above, this requirement was to be imposed on July 1, 2004. Due to difficulties in creating the fee collection system, emergency legislation (Senate Bill 901) was enacted to extend this date, but expressly left all other implementation dates intact. Only devices designated as covered electronic devices by DTSC are subject to the fee.

Additional requirements to be implemented in 2005 include: labeling covered electronic devices (January 1, 2005); reporting sales (July 1, 2005); and providing recycling information to consumers (July 1, 2005). On January 1, 2007 (or the date on which EU Directive 2002/95/EC becomes effective in Europe, whichever is later) it shall be unlawful for any person to sell in California any covered electronic device manufactured after that date that does not comply with the Directive. As written, the Directive will prohibit the sale of devices containing lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls or polybrominated diphenyl ethers.

The Act allows for administrative liability of up to $2500 and civil liability of up to $5,000 for each sale of a covered electronic device for which a recycling fee has not been paid. It further allows for civil liability of up to $25,000, to be imposed administratively by the IWMB, against any manufacturer that fails to comply with the Act, except for penalties above.

While the Act itself does not prescribe violations of hazardous waste laws, certain aspects of the Act and implementing regulations may subject a person, disposing of devices subject to the Act, to civil and criminal sanctions for the failure of a party to comply with hazardous waste regulations. This will result in a strong incentive for consumers to comply with recycling programs established under the Act, and with other voluntary consumer recycling programs that many manufacturers already have established.

Until now, California has attempted to manage electronic waste under a regime for wastes designated as "universal waste." As of June 7, 2004, under emergency regulations promulgated by DTSC, CRTs and LCD panels exceeding four inches diagonally are presumed to be hazardous waste, due to toxicity. Both CRTs and electronic devices that qualify as toxic (e.g., LCD panels) fall within the scope of universal wastes.

While households in states other than California are covered by a special exception under most hazardous waste laws, that is not so in California. Thus, the June 7, 2004 regulatory change subjects households to liability for unlawful disposal of CRTs. Current California law, in effect until February 8, 2006, includes an exemption for households from requirements for disposal of electronic devices categorized as "universal waste." That term excludes CRTs, however, leaving homeowners subject to the Act in disposing of these devices.

Amendments to the Act are under consideration, and may be effected under SB 50. Collectively, the emergency regulations and proposed amendments establish various exceptions. Thus, each requirement identified above may require further discussion. Certainly, each merits close attention.

Charles H. Pomeroy and Stanley W. Landfair are with McKenna Long & Aldridge LLP. Mr. Pomeroy and Mr. Landfair chair the firm's Environmental Practice in Los Angeles and San Francisco, respectively. You can reach them by email, at cpomeroy@mckennalong.com or slandfair@mckennalong.com

COPYRIGHT 2004 CBJ, L.P.
COPYRIGHT 2004 Gale Group





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