Introduction

For two decades, European Union (EU) environmental laws have been cited by those promoting similar regulation in the United States, at both the state and federal level. Waste management requirements for portable batteries and electronic products have been the principal examples, but chemical assessment and control may not be far behind. Industry has supported legislation based on EU law in several cases, when it facilitated the establishment of uniform, nationwide requirements, and has opposed it in other cases.

This article describes several of the most impactive EU programs in the product stewardship arena.

Battery Directive

The EU Battery Directive was first enacted on March 18, 1991, and amended on September 6, 2006.1 It covers all types of batteries, regardless of shape, weight or chemistry. It regulates batteries based on the application to which they are put: portable, automotive or industrial.

2006/66/EC bans the sale of certain batteries, mandates producer-sponsored battery collection, establishes collection rate requirements, requires batteries to be readily removable from appliances, prohibits disposal of automotive and industrial batteries, and requires producer registration, information campaigns and battery labeling. EU states were obligated to adopt implementing legislation by September 26, 2008.

The batteries banned by the Directive are all those that contain greater than 0.0005% mercury by weight, and portable batteries that contain more than 0.002% cadmium. However, an exemption is provided for cadmium batteries used in emergency and alarm systems, in medical equipment or in cordless power tools.

All batteries must be labeled with the “crossed-out trash bin” logo and their chemical identity: Hg for mercury, Pb for lead and Cd for cadmium. Battery capacity labeling (ampere hours) will be required on portable and automotive batteries effective September 26, 2009.

Producer registration has proved quite a difficult task for companies seeking to comply with that requirement because, as of August 2008, only three EU nations had adopted implementing legislation.

U.S. Battery Recycling Laws2

On January 20, 1992, the first U.S. state statute modeled after the EU Battery Directive took effect in New Jersey. It was followed by laws in Vermont (1993), Florida (1993), Maine (1994), Minnesota (1994), Maryland (1995) and Iowa (1996).3,4 These laws differ from the Battery Directive in that they typically cover only nickel-cadmium, small sealed lead-acid and mercurycontaining batteries. They also contain no limitations on the weight percent of cadmium allowed in batteries. Otherwise, however, the provisions are very similar to the European Directive: producer responsibility collection, appliance design incorporating ready removability of batteries, waste management and chemistry identification labeling, mercury prohibitions and disposal prohibitions.

In 1994, the Rechargeable Battery Recycling Corporation (RBRC) was established by battery manufacturers in the U.S. to collect and recycle portable, rechargeable Ni-Cd and SSLA batteries nationwide.5 The program was eventually expanded to Canada and to collect additional rechargeable chemistries, including nickel metal hydride, lithium-ion and lithium polymer batteries. New rechargeable chemistries continue to be added to the program as they are developed.

Because a limited number of states had adopted battery legislation and that which existed was not entirely consistent, at the industry’s urging, a Federal bill was enacted in 1996. The Mercury-Containing and Rechargeable Battery Management Act (P.L. 104-142; May 13, 1996) is more limited in scope than the EU Battery Directive and U.S. state laws that followed, but it does limit mercury content and require nickel-cadmium and certain sealed lead-acid batteries to be easily removable from consumer products, and labeled to indicate chemistry and proper disposal. The Federal law also contains unique preemption provisions that require state and local governments to follow Federal battery and product labeling requirements, and regulate the collection, storage and transportation of covered batteries as universal waste consistent with EPA regulations (40 C.F.R. Part 273). (EPA’s Part 273 rules provide that certain wastes can be handled according to a less stringent set of standards than fully regulated hazardous waste, with the intention of encouraging collection for recycling.)

Since 1996, only two U.S. jurisdictions have considered it necessary to adopt battery statutes. A 2005 New York City ordinance mandates retail collection of rechargeable batteries and requires manufacturers to submit battery management plans detailing how they will meet their obligation to arrange and pay for battery collection and recycling.6 A 2006 California statute requires retailers to collect small, non-vehicular rechargeable batteries from customers free of charge.7 Both expressly recognize participation in the RBRC program as satisfying their requirements.

Participation with RBRC also meets the requirements of all of the other U.S. states. The “seal,” which RBRC licenses to supporting companies to display on their products, also has been approved by EPA as meeting the labeling requirements of Federal law.

WEEE/RoHS

The EU directives restricting the use of hazardous substances in electrical and electric equipment (Directive 2002/95/EC or RoHS) and requiring the collection and recycling of such equipment when it reaches its end of life (Directive 2002/96/EC or WEEE) have been in force since February 2003.

WEEE requires producers to provide for collection schemes where households return their used e-waste free of charge. Producers also must collect e-waste from non-household generators, but they can charge for the service if the material was put on the market before August 13, 2005, and the fee is sanctioned by the member state. Mandatory collection and recovery rates must also be met.

RoHS generally requires heavy metals such as lead, mercury, cadmium and chromium, and flame retardants such as polybrominated biphenyls (PBB) or polybrominated diphenyl ethers (PBDE) to be substituted by safer alternatives in electronics. Because of the international nature of markets, most products sold in the U.S. (especially those that were manufactured abroad) now meet these requirements.

U.S. State Electronics Recycling Laws

Following quickly in the footsteps of the Europeans, in September of 2003, the California Legislature passed electronics recycling legislation. However, instead of a “producer responsibility” system, under which each manufacturer must pay for and arrange for collection and recycling, it requires purchasers of new electronic products to pay an advance recycling fee (ARF). The revenue goes into a state-managed fund that is used to reimburse collection and recycling costs of entities that collect used products.8

Shortly thereafter, in 2004, Maine adopted a consumer electronics recycling statute. The Maine law, however, adopted a version of the EU’s producer responsibility model.9 A number of other states since have adopted e-waste laws, all of which followed the EU, albeit often more rigorously than Maine.

In total, there are now 18 states and one city with electronics recycling mandates. All but California follow the "producer pays" formula. In addition to California and Maine, jurisdictions with e-waste laws are: Maryland (2005); Washington (2006); Connecticut, Minnesota, Oregon, Texas and North Carolina (2007); and New Jersey, New York City, Oklahoma, Virginia, West Virginia, Missouri, Hawaii, Rhode Island, Illinois and Michigan (2008).10

However, the scope of products covered by the U.S. state laws is much narrower than in Europe. In the U.S., the focus has been on televisions and computers, rather than the three pages of products covered in Europe. The U.S. statutes also are generally less stringent; only California and New Jersey have adopted RoHS toxic substances bans.

REACH

One area in which the U.S. has not yet duplicated the efforts of the EU is “REACH”–the Registration, Evaluation, Authorization and Restriction of Chemicals.11 REACH requires all manufacturers and importers of chemicals to identify and manage the risks linked to the substances they produce and market. Manufacturers and importers must register with the EU, and conduct health and environmental fate reviews of all of their substances, regardless of when the chemicals were first manufactured.

In contrast, tens of thousands of chemicals were grandfathered into the Toxic Substances Control Act (TSCA) Inventory in the late 1970s, and most of these substances have never undergone Agency review. Yet to manufacture or import a chemical substance in the U.S., it need only be listed on the TSCA Inventory.12

The environmental community is pressing for a U.S. REACH law. Proponents contend that, especially when compared to REACH, TSCA is wholly inadequate to address chemical hazards.

Several members of Congress indicated interest in a TSCA-reform bill with REACH-like provisions, although not necessarily something as burdensome, and representatives of the chemical industry have suggested they are at least willing to consider reopening TSCA.

Under the Bush Administration, EPA supported a robust but voluntary high production volume (HPV) chemicals assessment program, and a more recent “moderate production volume” initiative (ChAMP).13

President Obama did not address REACH in his campaign’s environmental platform, but it is much more likely that this Administration would support REACH provisions. What priority this receives remains to be seen, however, with the country and lawmakers so keenly focused on the failing economy and record unemployment rates.

In the meantime, states are starting to act on REACH-type controls of their own. For example, California Assembly Bill 1879, signed into law on September 29, 2008, grants authority to the Department of Toxic Substances Control to adopt regulations governing chemical or chemical ingredients in consumer products that may be considered “chemicals of concern.”14 In earlier versions, the bill had provided a specific listing of the chemicals of concern but, no list was included in the final statute. Instead, it provides a set of factors in accordance with which chemicals may be identified and trigger regulation like REACH. AB 1879 creates a process for reviewing product hazards associated with these chemicals, assessing potential alternatives, and taking the necessary steps to protect the public and the environment.