OBSOLETE ELECTRONICS AND SUSTAINABILITY The Regulatory Challenges of E-waste Disposal

1. OBSOLETE ELECTRONICS AND SUSTAINABILITY The Regulatory Challenges of E-waste Disposal Sabaa Khan, LL.M., LL.B. Barreau du Quebec Associate Fellow, Centre for International Sustainable Development Law sabaa.ahmad.khan@umontreal.ca

2. Part 1. E-wastes under International Environmental Policy S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

3. Part 2. Extended Producer Responsibility (EPR) Policies China WEEE and RoHS EU law: WEEE and RoHS Directives GREEN DESIGN Produce United States & Canadian approach Recover Consume Japan WEEE and RoHS policies Sustainable Production S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

4. ELECTRONIC REVOLUTION communication • security • health • culture mobility • food • education + PLANNED OBSOLESCENCE + PERVASIVE COMPUTING 40 million tonnes of WASTE ELECTRONICAL AND ELECTRONIC EQUIPMENT generated annually (UNU, 2007) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

5. Any appliance using an electric power supply that has reached its end-of-life. (OECD, 2001) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

6. Components contain highly toxic substances. (Cadmium, lead, barium, chromium, mercury, brominated flame retardants +…) Landfilling and incineration are harmful to human and environmental health. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

7. Electronics should be recycled: Valuable materials recovered, toxins safely disposed. Disposal streams: Reuse/donate/store Commercial recycler Curbside discard Capital-intensive & not always publicly funded. Not a viable business for small-scale collectors and recyclers. Stringent environmental and occupational health and safety regulations to follow in the EU, Canada, US. (e.g. filtration of gas emissions, treatment of effluents, monitoring and control of worker exposure to byproducts). Source: Tess-Amm Source: Swiss E-waste Competence S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

8. Most E-waste is Exported for Disposal, Recycling and Re-Use India, P. Tewari Ghana, BAN Brazilian Port, UK Times China, BAN Exporter incentives Accountability-free, physically and financially efficient. Profitable: collection charges imposed on consumers, sales revenue from foreign waste dealers (approx. USD 14.7 billion by 2015). Escapes NIMBY concerns, environmental regulations. Importer incentives Manufacturing industries need continuous supply of raw materials. Rapidly growing used electronics markets, especially in Africa. Facilitators: Poverty Lack of Environmental Regulation Lax Enforcement Corruption S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

9. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010 Source: Dayaneni and Doucette (2005)

10. ENVIRONMENTAL & HEALTH EFFECTS OF INTERNATIONAL E-WASTE FLOWS Externalization of pollution Ocean pollution (cargo shipping) Human and environmental contamination in e-waste processing villages (e.g. Guiyu, China: food markets, school yards, waterways, cancer, respiratory illness, birth defects, neurological disorders.) Smelters Lead-bearing scrap recycled by smelting into elemental lead or alloys. Chinese children’s blood lead levels are 4x higher than children in the US. Contaminated products made from E-waste E-waste a possible source material for children’s jewelry sold in the U.S. (J.D. Weidenhammer, 2007) Toxic levels of cadmium increasingly found in toys & jewellery sold internationally. E-waste contaminated agri-food imports from China e.g. Taizhou City (Zhejiang province) the “land of fish & rice” and electromechanical industries. Rice crops high in lead and cadmium, daily intake could cause detrimental health hazards to consumers. (J.Fu et al., 2008) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

11. How do e-waste trade flows impact human rights? S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

12. International Labour Office United Nations Commission on Human Rights Resolution 1995/81: “a serious threat to the human rights to life and health of everyone…” Special Rapporteurs 2004, 2006: rising e-waste exports pose an obstacle to realization of human right to health, “poor, vulnerable, marginalized suffer disproportionately from exposure to toxic chemicals…” E-waste is the newest and most threatening form of hazardous waste. 98% of China’s 700,000 e-waste recycling jobs are in the informal sector (Green Jobs for Asia Conference, 2008). China receives up to 70% of global electronics discards. (UNESCO Future Forum 2009) E-waste recycling is a growing employment sector in developing countries that gravely endangers human and ecosystem health. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

13. Is e-waste export (dumping) prohibited under international hazardous waste regulation? S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

14. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1992): Minimize generation Limit international movements Promote national self-sufficiency 1990-1995 transfers from OECD countries: disposal - 31.1% recycling +32% Basel Ban Amendment (1995): a complete ban of all hazardous waste exports for disposal, recycling and recovery from Annex VII countries (OECD, EU, Lietchtenstein) to non Annex VII countries (all other Basel Parties). • Entry into force of the Basel ban (interpretation of Art. 17(5) of the Convention) disputed: ¾ of the original 82 Parties to the Convention need to ratify or ¾ of the current 172 Parties? • Canadian position: “There will be a need for recycling of hazardous wastes today, tomorrow and for many years to come.” (disruptive effects on hazardous recyclables trade) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

15. What is considered hazardous waste under the Basel Convention? Scope • Annexes I & VIII, unless they do not exhibit an Annex III characteristic (explosive, flammable, liable to spontaneous combustion, liable to become flammable or • give off flammable gases when in contact with water, oxidizing, poisonous, infectious, • corrosive, toxic or ecotoxic). • Defined as hazardous under domestic legislation of an exporting, importing or transit country that is a Party to the Convention. Restrictions • Art. 4(9): Hazardous wastes are exchanged between territories only: • when exporting country cannot manage self-sufficiently in an environmental manner • when wastes in question are required as raw material for recycling or recovery in the State of import (exception: Annex VII to non-Annex VII) • under other agreed-upon criteria that do not contravene the objectives of the Convention S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

16. Do e-wastes qualify as hazardous wastes? Hazardous Annex VIII: A1150 Precious metal ash from incineration of printed circuit boards [...] A1180 Waste electrical and electronic assemblies or scrap containing components such as accumulators and other batteries included on list A, mercury switches, glass from cathode-ray tubes and other activated glass and PCB-capacitators, or contaminated with Annex I constituents (e.g. cadmium, mercury, lead, polychlorinated biphenyl) to an extent that they possess any of the characteristics contained in Annex III (note the related entry on list B B110). A 2010 Glass waste from cathode ray tubes and other activated glasses. Exceptions Annex IX B1110 Electrical and electronic assemblies: • Electrical and electronic assemblies consisting of only metals or alloys • Waste electrical and electronic assemblies or scrap not containing components such as accumulators and other batteries included on list A, mercury switches, glass from cathode-ray tubes and other activated glass and PCB-capacitators, or not contaminated with Annex I constituents (e.g. cadmium, mercury, lead, polychlorinated biphenyl) or from which these have not been removed, to an extent that they do not possess any of the characteristics contained in Annex III (note the related entry on list A A1180) • Electrical and electronic assemblies (including printed circuit boards, electronic components and wires) destined for reuse, and not for recycling or final disposal. *** Footnote 20 *** “are not considered waste” S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

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18. Basel Convention, Annex IX: Re-use exemption • Extends lifecycle. • Benefits resource and energy conservation. • Bridges digital inequalities by ensuring developing countries’ access to IT equipment. • Repair and refurbishment require replacement and disposal of non-functioning parts. • Eventual need for recycling and disposal inevitable. • No mandatory pre-testing, labeling or certification requirements. • Guise for illegal dumping : e.g. 75% Nigeria S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

19. Annex IX Basel Ban Internal weaknesses • Does not regulate export for re-use. • Legally unenforced. • Exports for re-use unregulated, significant source of pollution, major regulatory gap. • Compliance Committee decisions non-binding, ngo’s excluded from process. • Allows fluctuation in HW definitions: precise legal scope unclear. • Creates closed trading group between Annex VII countries. (Exclusive access to ‘waste product’ market: WTO compatible?) • Enforcement relies on principle of state responsibility: reporting & tracking inconsistent, developing countries lack infrastructure, capacity. • Legal ambiguities: membership to Annex VII? Article 11 agreements? • Linked to rise in illegal dumping. (EU) Is the Basel Convention an effective measure to mitigate e-waste pollution? S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

20. Why should developing countries not be excluded from the waste recyclables market? Negative impact on resource extraction, increased pressure on manufacturing industries. Revenue alternatives, social repercussions unclear. Hinders transfers of clean technology, decreases incentives for cooperation. Does not solve waste generation issues. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

21. Basel Convention strategies Trading Restrictions Advance clean technologies Enhance capacity Build multi-stakeholder partnerships S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

22. COP 8 (2006) Nairobi Declaration on the Environmentally Sound Management of Electrical and Electronic Wastes Decision VIII/2: Creating Innovative Solutions • Preamble: • Acknowledges risks of e-waste traffic to countries that lack capacity. • & • Highlights development opportunities created through proper recycling and recovery. • Guiding principles: • e-waste awareness • transfer of technologies • green design (phasing out of toxics) • adoption of product stewardship & producer responsibility policies Mandates Working Group to monitor global developments in e-waste management. Calls for increased financial support and practical engagement, development of pilot projects on environmentally sound collection, re-use, recycling and refurbishment operations in developing countries. Strengthen efforts to combat illegal traffic. Ensure re-use donations are not end-of-life. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

23. Green Design Recast waste minimization as a main objective of industrial production. Manage waste phase before product materialization. Eliminate toxic characteristics of products. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

24. Lifecycle Thinking View products as sources of environmental problems. Shared stakeholder responsibility in pollution prevention and control. Principle of Extended Producer Responsibility (EPR) Manufacturers and importers take responsibility for the environmental burdens of a product throughout the entire lifecycle of the product and not just the phase in which they are directly implicated. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

25. Implementing EPR Administrative Economic Informative • Product take-back schemes • Re-use and recovery targets • Environmental standards • Product taxes • Advance disposal fees • Tradable recycling credits • Marking and labelling • Customer information RESPONSIBILITIES S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

26. EPR Policies Innovate Transfer of waste management responsibility to private sector. Extend traditional focus of environmental intervention from byproduct to product. Create incentives for industry to move towards waste minimization. EXPERIMENTAL! Environmental and financial impacts are not evident: Germany - Ordinance on the Avoidance of Packaging Waste (1991) EU – EoLV Directive (2000) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

27. High degree of variation in EPR Policies Government intervention (local/national/none). Division of responsibilities between stakeholders. Impacts on international trading, health and development of green technologies. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

28. Waste Electrical and Electronic Equipment (WEEE) Directive (2002) Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS) Directive (2002) Hold producers responsible for recycling/reprocessing/disposal operations related to EEE listed in Annex 1A: 1: large household appliances 2: small household appliances 3: IT and telecommunications 4: Consumer Equipment 5: Lighting Equipment 6: Electrical and Electronic Tools 7: Toys, Leisure & Sports 8: Medical Devices 9: Monitoring and Controlling Instruments 10: Automatic Dispensers Design and manufacturing obligations on producers to phase out use of 6 toxics: Lead Mercury Cadmium Hexavalent Chromium Polybrominated biphenyls (PBB) Polybrominated biphenyl ehters (PBDE) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

29. WEEE Directive Producer Definition Manufacturers, Brand owners, Persons who professionally importer/export into EU Member State irrespective of selling technique. Obligations To provide all end-of-life reuse and treatment information that may be required by recycling facilities, including disclosure of EEE components, materials and location of dangerous substances. To finance collection, recycling, recovery and disposal operations. • New waste (placed on market after 13 Aug. 2005) • Historical waste • WEEE from private households (includes WEEE from industrial, institutional and other sources of similar nature and quantity • WEEE from users other than private households Producer Responsibility End User Collection facility S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

30. WEEE Directive: Producer Responsibility New waste Historical waste Producers are individually responsible for financing end-of-life operations related to their own products. For WEEE from PH: Producers must provide a financial guarantee with every new product placed on the market (i.e. recycling insurance, blocked bank account, participation in collective WEE management scheme). WEEE from PH: Producers existing on the market (at the time the treatment costs occur) assume collective responsibility according to “their respective share of the market by type of equipment.” WEEE from users other than PH: Producers are jointly responsible with users. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

31. WEEE Directive: Government Role Set up collection and financing systems where consumers can return WEEE at least free of charge (Art.5(2)). Keep a registry of producers (Art. 12(1)). Collect information on annual quantities put on market, collected, recycled and exported. Encourage green design (Art.4). Meet collection target of 4kg per inhabitant (Art.5(5). New proposal revises this to 65% by weight of all Annex 1A EEE placed on market in 2 preceding years. Consumer information: Inform and educate users on WEEE health hazards and disposal operations, facilitate access to collection sites, promote consumer awareness and participation. PRODUCERS DISTRIBUTORS (Article 10, WEEE) S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

32. WEEE Directive Key Implementation Issues Producer Definition Collection Responsibilities Lack of harmonization Varying national requirements (form & substance) means excessive administrative burden & compliance cost on producers. • When producer is the first importer into the national State (wholesaler, distributor, retailer): • Producer changes each time product crosses national borders. • Several producers held responsible for same product (markings, financial guarantees). Physical and financial responsibilities for collection of WEEE from PH not specifically allocated to producers. (Deviation from the PPP). Differentiation in interpretation of key terms: ‘producer’, ‘WEEE from private households’, ‘put on the market’. Individual financial responsibility with respect to new products not unanimously transposed (ambiguous or unaddressed). Differences in the obligations of distance sellers & foreign entities leaves space for free riders. Inclusion of wholesalers and retailers as producers. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

33. Proposal for a revised WEEE Directive • EEE producers’ access to their own WEEE not guaranteed (leaks outside producer-funded system). • Other market actors competing for WEEE remain unregulated. • No obligation on consumers to discard through appropriate channels. • No obligation on municipalities to transfer all collected WEEE back to producers for subsequent treatment. Harmonized system of producer registration/reporting, inter-operational national registers. REGULATORY GAP! Clarification on product scope (new categorization household/non-household) Minimum standards for inspection & monitoring requirements for WEEE destined for shipment. Higher targets for recycling and reuse. Promotes the extension of producers’ financial responsibility for WEEE throughout the whole waste chain, including from private households. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

34. Regulations for the Administration of the Recovery and Disposal of WEEE, Order No. 551, PRC (2009) Administrative Measure on the Control of Pollution Caused by Electronic Information Products, Order No. 39, PRC (2006) Takes effect January 2011. Product scope to be defined in forthcoming catalogue. Regulates ‘recovery’ (collection), disposal. Does not cover reconditioning, maintenance, reuse. Main objective is to regulate disposing enterprises. Lead Mercury Cadmium Hexavalent Chromium Polybrominated biphenyls (PBB) Polybrominated biphenyl ethers (PBDE) Information disclosure (content levels, ‘environment-friendly use period’, recyclability), labeling restrictions, pre-market compliance testing and certification. Range of products: electronic components but not assemblies, packaging, raw materials). Products for export not included. All actors involved in production, sale, import must comply. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

35. How does the China WEEE impact EEE stakeholders? • RECYCLERS • PRODUCERS USERS Establishes permit system for ‘disposing enterprises’ (WEEE recyclers). Prohibits all other entities and individuals from engaging in WEEE treatment. Obliges all actors involved in WEEE treatment (recovery, storage, transport, disposal) to comply with environmental protection regulation and environmental hygiene administration, and to establish WEEE monitoring and information data management systems. • Not obliged financially or otherwise in WEEE collection. Encouraged to collect WEEE independently or through their distributors, repair organs or other entities. • Responsible for disclosing information on toxic components and product recyclability, and contributing to a government-administered special fund for WEEE disposal. (Rules pertaining to collection, administration and use of the fund forthcoming). Provides an ‘asset write-off’ to gov’t agencies, social organizations, enterprises and institutions that deliver WEEE to disposing enterprises. • Fails to provide an accountable, coherent system for WEEE collection. • Does not solve problem of household e-waste being diverted to informal sector. • Fails to provide framework for consumer awareness / participation in safe disposal. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

36. Japan WEEE/RoHS Laws HARL (2001) LPEUR (2001) RoHS (J-MoSS, 2006) • Establishes manufacturer take-back schemes for tv’s, refrigerators, washing machines and air conditioners. • Consumers pay a recycling fee by purchasing a recycling ticket at retailers or post office. Products are returned to retailers, municipalities. • Fees are transferred to producers on a monthly basis. ***Fees are low and difference in actual recycling cost is assumed by producers.*** • Covers consumer-owned IT equipment, some other products. • Obliges Japanese manufacturers in specific industries to incorporate 3 r’s (reuse, recyle, reduce) in their business model. • Imposes a point-of-purchase recycling fee. Consumer gets a label to put on EoL equipment, then sends it to post office. Postal system sends it to appropriate recycler. • Same six substances as China, EU. • Applies to PCs, TVs, refrigerators, washers, dryers, microwave ovens and unit air conditioners. • Does not prohibit use, imposes labeling restrictions, information duties when content levels of these substances exceed the allowable limit. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

37. United States Approach • California: • RoHS law (EWRA, 2003), mandatory recycling system and export ban (same standard as Basel Convention). • Local governments responsible for collection and handling. • Industry participation limited to green design, no financial or other implication in recycling phase. Landfill bans & EPR policies in 18 States. 46.1% of U.S. population uncovered by e-waste laws. (Consumers are charged a fee by e-waste collectors.) Federal export rules don’t prohibit U.S. recyclers from exporting. State-level patchwork policies pose administrative and financial burden. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

38. U.S. Legislative Proposals (May 2009) Environmental Design of Electrical Equipment (EDEE) Act Amendment to the Solid Waste Disposal Act to restrict certain exports of electronic waste No electro-industry product will be manufactured or imported unless it meets m.a.c. limits (same 6 substances as EU RoHS.) Electro-industry product: "any product or equipment that is directly used to facilitate the transmission, distribution, or control of electricity, or that uses electrical power for arc welding, lighting, signaling protection and communication, or medical imaging, or electrical motors and generators". Detailed list of exclusions and exemptions (e.g. electrical wire, cables and accessories, medical equipment, products with 300V rating, fixed installations). IT equipment? Household / consumer equipment? Toys? Leisure & Sports equipment? Prohibits e-waste exports to non-OECD countries. (Does not establish national EPR rules or guidelines). Product scope: "used personal computers, servers, monitors, televisions, other video display products, printers, copiers, facsimile machines, video cassette recorders, digital video disc players, video game systems, digital audio players, personal digital assistants, telephones, image scanners, and other used electronic products the [EPA] determines to be similar". Exemptions include re-use, repair, refurbishment. U.S. exporters not obliged to provide contractual proof of receiving facility’s consent or capacity to handle the shipment in an environmentally sound manner. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

39. Canadian E-waste Regulation Canadian Council of Ministers of the Environment (CCME) : Canada-wide Principles for Electronic Product Stewardship Recommended E-Waste Products EPR/ARF systems in place: pending: Alberta Manitoba Ontario Quebec Saskatchewan Nova Scotia British Columbia S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

40. Canadian Comparison Quebec Draft Residual Materials Management Policy (Nov. 2009) Electronic Products: “electronic appliances used to send, receive, display, store, record or save information, images, sounds or waves, and their accessories, except products designed and intended to be used in an industrial, commercial or institutional environment exclusively.” (Art. 23) Subcategories: Computers & peripherals Televisions Printers, Scanners, Faxes, Photocopiers Phones & devices (cellular, satellite, traditional, pagers, hands-free) Video game consoles & peripherals Players, Recorders, Burners Digital photo frames, e-books, GPS systems, walkie-talkies, digital cameras, camcorders. Saskatchewan Waste Electronics Regulation Designated products: Computers & peripherals Printers Monitors Televisions Audiovisual equipment (including in-vehicle) Non-cellular telephones and answering machines S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

41. International WEEE/RoHS Legal Landscape PROSPECTIVE IMPROVEMENTS Information Sharing and Stakeholder Participation Lack of stakeholder awareness and incentive contribute to improper disposal. Need to strengthen public education initiatives. Interlock interests of manufacturers, consumers, recyclers and the informal sector. Developing countries: Inclusion of informal sector in environmental management necessary (e.g. utilizing their collection/handling skills). Responsibilities of Non-Producers Govt’s need to address the role and financial interest of e-waste brokers, recyclers and other non-producers involved in WEEE chain. Important that producers can access WEEE before it enters unregulated recycling channels. Greater transparency and corporate responsibility needed in the recycling sector. Harmonized RoHS Adoption Essential dimension of e-waste governance. No action on RoHS will hurt domestic industries, slow down global standardization of green design and clean production. Discordance between policies poses serious compliance issues, costs (especially for SME’s, Asian contractors). Need for financial and technical assistance to EEE supply chain actors. S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

42. Sustainable Consumption Sustainable Production An environmental framework for electronics consumption? E- Waste management S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010

43. THANK YOU Sabaa Khan sabaa.ahmad.khan@umontreal.ca S.Khan, Obsolete Electronics & Sustainability, CERIUM 2010