Electronic waste control legislation: observations on a new dimension in state environmental regulation.

• Author: Konoval, George J.

1. INTRODUCTION II. THE PROBLEM OF ELECTRONIC WASTE III. THE CALIFORNIA ELECTRONIC WASTE RECYCLING ACT IV. LEGAL ANALYSIS OF THE CALIFORNIA ELECTRONIC WASTE RECYCLING ACT A. Supreme Court Sovereign Immunity Analysis B. The Requirement to Protect the Public Fisc C. The Limits of the Resource Conservation and Recovery Act's Federal Facilities Compliance Act of 1992 D. Statutory Construction E. Military E-Waste Recycling V. COMMUNICATING WITH STATE REGULATORS A. Supreme Court Sovereign Immunity Analysis B. The Requirement to Protect the Public Fisc C. The Limits of the Resource Conservation and Recovery Act's Federal Facilities Compliance Act of 1992 D. Statutory Construction E. Military E-Waste Recycling VI. CONCLUSION I. INTRODUCTION

   From the dawning of the computer era in 1936 (1) to the present advancements in speed, portability, and user accessibility, the personal computer has become remarkably integrated into American society. Accordingly, the military has embraced the use of personal computers and associated electronics. The computer industry has met the growth of America's computing needs with a steady flow of more efficient and affordable machines.

   Quietly following this rising tide of production has been the growing concern of what to do with a flood of obsolete computer equipment and the fear that even the proper disposal of these materials in landfills could carry significant negative environmental and human health impacts. While there is currently no comprehensive federal regulation of electronic waste or "e-waste," as it has been termed, almost half of the states are currently considering legislation to address this concern.

   Currently, three states and the territory of Guam have enacted legislation specifically targeting the problem of e-waste, each approaching the issue in a different way. In most states, the resulting legislation addresses e-waste without presenting a problem to the military. California's approach, however, does present a concern for the military and other federal facilities located within the state. Unfortunately, a number of state legislatures are now considering proposals similar to California's. Using the California legislation as a backdrop, this article will address the growing area of state e-waste regulation and offer tools with which to analyze and address the issues.

   Section II provides information regarding the nature and scope of the e-waste problem facing the United States and what the federal government and states are doing to manage it. Because it is the first of its type, and because it presents compliance hurdles for the military which may be duplicated in a number of other states, the California legislation will be analyzed in Section III. Section IV presents a legal and factual framework within which one can consider and analyze the issues presented by e-waste legislation similar to California's. Section V offers recommendations that may be useful to military attorneys facing this issue in other states. While every state that addresses this issue will ultimately adopt its own unique approach, the information contained in this article presents a good starting point for identifying and communicating the limitations that military and other federal facilities may have in complying with certain types of e-waste legislation.

2. THE PROBLEM OF ELECTRONIC WASTE

   Approximately 62% of U.S. households owned computers in 2003, an increase from 37% six years earlier. (2) This increase in ownership naturally leads to an increase in the amount of e-waste as these computers and related equipment reach the end of their functional life. E-waste can be defined as used electronic products, such as computer central processing units, computer monitors, computer printers, and televisions that have reached the end of their functional lives and simply have no further use. (3)

   To keep up with the rate of advancement in computer technology, today's consumers are more likely to purchase a new model rather than attempt to upgrade their existing machine. (4) This trend is exacerbated by the fact that the cost of manufacturing personal computers is continually falling. This makes the purchase of a replacement a relatively cost effective alternative to repair. (5)

   While estimates vary, the rate of technological advancement or "the upgrade cycle" ranges from two to three years, which means that a new computer purchased today will reach the end of its useful life and require disposal in that time span. (6) Available data indicates that the vast majority of retired computers, monitors, printers, and television sets has yet to be discarded or recycled and instead remains "stockpiled" in the closets, attics, and basements of the American public. (7) This portends a "tip of the iceberg" scenario for the problem of e-waste disposal across the nation. For example, the National Safety Council estimates that 100 million computers and monitors became obsolete in 2003. (8) The International Association of Electronics Recyclers estimates that 20 million television sets became obsolete in 2003. (9) Of this amount, only a fraction was disposed of in landfills or recycled. The Environmental Protection Agency (EPA) estimates that less than 8 million computer monitors and 8 million television sets are currently disposed of annually in U.S. landfills. (10) The gap between what has become obsolete and what is actually disposed of suggests that a huge amount of electronic products are simply stored for disposal or recycling at some later date. As a consequence, many commentators forecast that this nation will soon see a flood of e-waste that it is not sufficiently prepared to handle. (11) Of course this view is not universal, and other commentators dispute the severity of the problem, doubting both the projected volume of e-waste and the environmental and human health risks it presents if properly handled. (12) These types of concerns, however, are driving legislative and regulatory efforts.

   On the federal level, the EPA has implemented a variety of programs intended to encourage the voluntary recycling of used electronics. (13) For example, it has proposed conditionally removing Cathode Ray Tubes (CRT) from the Resource Conservation and Recovery Act (RCRA) definition of solid waste--relieving some of the RCRA disposal requirements that currently apply--in order to foster the recycling of CRT components. (14) This is significant because a CRT is a vacuum tube, with a high lead component, used in most televisions and many computer monitors, which has historically comprised a large percentage of e-waste. (15)

   The e-waste problem has historically received little attention at the federal legislative level. Federal legislation proposed over the last two years approached the problem primarily through tax credits to manufacturers who establish recycling programs, tax credits to consumers for recycling, and fees upon manufacturers to establish national, state, and local e-waste recycling programs. (16) Because of the relative lack of attention given this issue by Congress, a wide range of stakeholders, to include manufacturers, recyclers, retailers, consumer groups, and environmental groups, have expressed growing concern. (17)

   Comparatively, the states have been much more aggressive in addressing the e-waste problem. The result has been an increasing patchwork of varying and potentially conflicting state laws. Faced with the potential difficulty and expense such a regulatory landscape presents, many stakeholders, including manufacturers, have indicated a preference for uniform federal regulation. (18)

   The concerns that primarily vex the states include the potential volume of e-waste that may soon appear in state landfills and the toxicity of the materials contained in that waste. Depending on its source, e-waste may contain a variety of toxic materials, including lead, cadmium, antimony, beryllium, mercury, and lithium, all of which has the potential to leach into the environment upon disposal. (19) Currently, a hazardous waste of great concern is lead, which is used in the manufacture of CRTs. (20) The scientific data currently available on the subject of leachate from e-waste is sparse and, as one might expect, certain studies support a cause for concern while other studies minimize it. (21) Another area of state interest involves those materials contained in e-waste that have economic value but are difficult to recover, such as gold, silver, platinum, and copper. The U.S. Geological Survey reports that one metric ton of computer scrap contains between 40 and 800 times the concentration of gold contained in gold ore and 30 to 40 times the concentration of copper contained in copper ore. (22) Devising an economical method to tap into this recyclable resource could provide a source of state revenue.

   Arguably, the military's use of computers and other electronic equipment is equal to or greater than that of the per capita civilian population, and regulations that affect the citizens of any individual state may similarly affect a military facility or other federal agency located therein. Records developed by the Air Force Equipment Management Systems/Integrated Asset Management Systems (AFEMS/ITAMS) show that between July and November 2004, Air Force facilities in California purchased 5,455 new pieces of computer equipment to include monitors, printers, and central processing units. (23) This figure does not encompass all purchases made by Air Force facilities in California during that timeframe because many purchases made at the installation level are not tracked through the AFEMS/ITAMS system. (24) Similarly, Navy Region Southwest reports that a single Navy command in California purchased 12,677 separate pieces of computer equipment in 2004. (25) Alternatively, the Defense Reutilization and Marketing Service has "demanufactured" (26) for recycling an estimated 165 million pounds of used military...