The European Union Directive on Waste Electrical and Electronic Equipment: a study in Trans-Atlantic Zealotry.

AuthorTowle, Holly K.
  1. INTRODUCTION II. EUROPEAN UNION DIRECTIVE 2002/96/EC ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT A. Scope of the WEEE Directive and Definition of a "Producer" 1. Definition of WEEE; Impact on Product Design 2. Definition of "Producer" 3. Definition of "Distributors" (Retailers) B. Collection and Transport of Waste Electrical and Electronic Equipment 1. RETURN OF WEEE FROM PRIVATE HOUSEHOLDS, I.E., "HOUSEHOLD-LIKE" WEEE 2. WEEE Not from Private Households, i.e., Commercial-Like WEEE 3. Collection Targets 4. Transport of WEEE C. Treatment and Recovery of WEEE 1. Producer Responsibility for the Treatment and Recovery of E-Waste 2. Technical Standards for the Treatment and Recovery of WEEE 3. Member State Oversight and Licensing D. Financing the WEEE Directive 1. WEEE from Private Households (including "Household-Like" WELL) a. Non-Historical WEEE from Private Households b. Historical WEEE from Private Households 2. WEEE from Non-Private Households E. Information Exchange Requirements Under the WEEE Directive 1. Recordkeeping and Reporting 2. Information Exchange III. IMPLEMENTATION AND ENFORCEMENT OF THE EU DIRECTIVE ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT A. The Process of Transposition B. Enforcing the WEEE Directive IV. EXTENDED PRODUCER LIABILITY IN THE UNITED STATES A. The California Hazardous Electronic Waste Recycling Act of 2003 B. Federal Legislation V. CONCLUSION I. INTRODUCTION

    The European Union Directive on Waste Electrical and Electronic Equipment (1) (the "WEEE Directive" or the "Directive"), adopted January 27, 2003 by the European Parliament and Council, aims for nothing less than a revolution in the way producers, distributors, and consumers create, handle, and dispose of electronic waste. (2) A copy of the Directive is attached as Exhibit A to this article. In effect, it will transfer responsibility for the collection and treatment of so-called e-waste from local governments in the European Union ("EU") to the private sector. Electronics producers will shoulder the greatest burden under the new regime. (3) Supporters argue that making electronics producers responsible for the collection and recovery of e-waste will "close the loop" by providing manufacturers with a direct economic incentive to design greener, more recyclable products. (4) Opponents argued, for example, that voluntary industry initiatives were an adequate response to the environmental threat perceived by proponents of the Directive. In the U.S., manufacturers of various devices already provide a way for customers to return certain e-waste products, postage prepaid, after their useful lives. (5) Moreover, opponents claimed, the directives would restrain innovation, be difficult to enforce, and create trade-distorting and anti-competitive effects. (6) Ultimately, opponents of the Directive were unsuccessful in preventing its passage.

    Indeed, it is difficult to dispute the fact that electrical and electronic equipment ("EEE") likely constitutes a current or future problem if only because of the growing number of electronic devices used internationally. (7) Beyond issues typical of most products is the issue of hazardous waste. According to the U.S. Environmental Protection Agency, consumer electronics can contain components including lead, brominated flame retardants, mercury, cadmium and hexavalent chromium, (8) some of which are said to be capable of finding their way back into the human food chain or into the pores and mouths of residents nearby. (9) Of course, this can also be said of other products such as industrial chemicals and, indeed, a legitimate policy question is whether the proper approach is to adopt a "sector" approach that singles out particular industries, or to consider a more holistic approach encompassing the entire scope of products containing similar wastes. Another policy question is whether private industry initiatives or governmental action and institutions offer the best way to approach the various issues. Be that as it may, the EU has adopted a sector-specific approach which is the subject of this article. (10)

    It is also a modern reality that land previously in the middle of nowhere has become someone's own backyard, and no one wants to put a new landfill there. Economic, social, and environmental pressures require society to grapple with the materials we use, even after we have stopped using them. It takes a large amount of time, money, and manpower to deal with the waste we all produce, so there is understandably increasing debate regarding what should be done, who should do it and who should pay for it, directly or indirectly. The WEEE Directive opts for reducing government responsibility and shifting the responsibility of dealing with waste directly to the private sector and, indirectly to consumers and other customers. (11) How it does so is the subject of this article.

    The WEEE Directive represents the largest, most comprehensive public-to-private transfer of responsibility for e-waste management thus far. (12) By August 13, 2004, all European Union Member States (13) were required to pass national legislation that will establish and monitor so-called extended producer responsibility ("EPR") regimes. (14) Extended producer responsibility is an umbrella term used in the environmental policy community to refer to any effort by policymakers to hold product manufacturers responsible for the collection and/or treatment of their products once the goods have been discarded by the consumer. (15) There are several types of EPR schemes currently in existence requiring varying degrees of commitment by producers. Some of these include: producer take-back systems, (16) mandatory fee collection, (17) and wholesale EPR in which producers are fully responsible for the management of their share of the waste stream. The WEEE Directive is of the latter type.

    Vesting product manufacturers with the responsibility for collecting and treating certain segments of the municipal waste stream raises a host of serious legal and policy questions. Perhaps because discussion of the WEEE Directive has been largely confined to the environmental policy literature, legal and business scholars have been relatively slow to comment on the emergence of a complex new world of private waste stream management. This article is intended to act as a wake up call to legal and business professionals who face an onslaught of thorny legal issues. First, the article will lay out the provisions of the WEEE directive in detail, explaining how the Directive is intended to work and suggesting areas that may concern legal and business professionals. Next, it will turn to issues of implementation and enforcement to explore questions that will arise as the Directive moves from political concept to legal reality. Finally, the article will look ahead to the day when U.S. lawmakers or policymakers will need to pass, reject, modify or otherwise deal with EPR legislation. EPR legislation has already been introduced in many U.S. state legislatures and has passed in at least one, (18) and the federal government has also begun to consider the issues. The final sections of this article will briefly explore this American foray into EPR for electrical and electronic consumer products.

  2. EUROPEAN UNION DIRECTIVE 2002/96/EC ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (19)

    The primary goal of the WEEE Directive is the establishment of a system for separating waste electrical and electronic equipment ("WEEE") from the general municipal waste stream, consolidating it at certain collection points, transporting it to licensed treatment facilities, and disposing of it through reuse, recycling or proper treatment. (20) With a few exceptions, (21) European countries have traditionally lumped WEEE together with the general municipal waste stream. The management of that waste stream has been centralized at the level of local or regional governments, which have borne associated costs (which, of course, are also borne by taxpayers generally). The WEEE Directive segments a previously-conglomerated waste stream and introduces a host of new players into the waste management arena. (22) Producers, distributors, government agencies, consumers, and waste treatment specialists will all face new responsibilities as the management of the e-waste stream is specifically allocated to certain segments of society. Understanding the financial and operational liability of each of these players is key to understanding how the WEEE Directive works. Recognizing the new relationships between these players is critical to predicting the legal issues that are bound to arise.

    Before delving into the minutia of the WEEE Directive, we explain the nature of EU directives as such. The European Union is an international organization comprised of twenty five Member States. (23) Upon joining the EU, each member state cedes a portion of its sovereignty, allowing the organization to forge policies that will be binding upon all Member States. (24) The EU maintains a massive bureaucracy including a European Parliament, European Council, European Commission, and the European Court of Justice, (25) which work together to pass and interpret various types of legislation. (26) A directive is one type of EU legislation; it is binding upon Member States as to result, but leaves freedom in the manner in which Member States may achieve those results. (27) Directives must be implemented by each member state through the passage of national implementing legislation. (28) This process is known as "transposition." (29) The WEEE Directive must, therefore, always be viewed as a mandate by the EU to Member States requiring that they at least pass legislation giving effect to the provisions in the Directive. They may also expand that legislation in ways that are not inconsistent with the directive or its objectives. (30) Thus, non-uniformity and its consequent complexity and costs are an inherent...

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