US Green: 50 States, 50 Laws

Within both the US and the EU, member states are intent on developing and enforcing their own directives. Environmental guidelines are no different -- even with an overarching authority (the federal government in the US and the EU Commission in Europe) in place, guidelines differ from place to place. The electronics supply chain is used to dealing with complexity, but the patchwork of green laws in the US challenges even the most astute compliance department.

"You might be thinking that we learned from the EU, and we would not make the same mistake," Ken Stanvick, principal of Design Chain Associates LLC (DCA) , said during a Webinar on the topic. "Sadly, the answer is that we did make the same mistake and will continue to do so as additional states enact e-waste legislation."

Twenty-five states have enacted e-waste legislation, and other directives are in the works. As in the EU, there is no common standard in the US that ensures compliance across every state. "The bottom line is that you can't simply read the individual US state e-waste legislation and determine if your product would be considered in or out of scope in every US state where it would be put on the market," Stanvick said. "You will need to contact the appropriate enforcement agency for that specific US state and obtain an opinion. Should you choose to challenge that opinion, your recourse is to present your argument to the state attorney general for a ruling."

For example, two neighboring New England states have different rules. Vermont requires computers, printers, TVs, VDDs, and peripherals to carry a label or notification of possible hazardous substances. New Hampshire does not that requirement, at least at the state level. Also, Vermont bans all of these products from being put in a landfill.

Stanvick told us in an interview that there are also inconsistencies between federal guidelines and state directives. "Federal guidelines restrict, for example, the use of mercury in thermostats. States have to comply with that mandate. But also at the state level, you have guidelines that say 'If you can't sell it in the EU, you can't sell it here.'"

A couple of examples:

The New Jersey legislation specifies that 'Beginning on January 1, 2011, no person shall sell or offer for sale in this State a new covered electronic device, including a television, if the covered electronic device is prohibited from being sold or offered for sale in the European Union on or after its date of manufacture due to the concentration of one or more heavy metals in the covered electronic device exceeding its maximum concentration value, as specified in the Commission of European Communities' Decision of August 18, 2005, amending Directive 2002/95/EC (European Union document 2005/618/EC), or as specified in a subsequent amendment to the Directive.
The state of Minnesota specifies the "Notification of Status with the RoHS Directive." This is currently a declaration of status and does not prohibit the sale of a covered electronic device in the state.

Right now, Stanvick said, there are no federal reuse or recycling directives. Those are handled by the states.

What does this mean for manufacturers? Cost, labor, and time, Stanvick says. Each state has different fees, requires different data and forms to register, and may or may not provide a list of approved recyclers. Here are DCA's general recommendations:

Talk with your peers and industry associations; it seems that much of the focus today is directed toward the EU but equally important is to be aware of and try to influence what is happening in the US today.

Talk with your state officials and where possible provide guidance to their well intentioned efforts.

Stay on top of this as new states continue to add legislation and states with existing legislation continue to consider expanding the type of covered electronic devices.

Before you place your product on the market in any US State make sure you are clear in regard to its status as defined by both the enacted legislation and the interpretation of enacted legislation by the state's enforcement agency.

Maintain a documented evidence trail which contains, at a minimum, a copy of the enacted E-Waste Legislation, a list of covered electronic, if available definitions of covered electronic devices, and most importantly any communication you have in regards to asking a state enforcement agent if your product would be considered a covered product and their response.

If you are not in agreement or choose to ask for further clarification, many states will forward your request for further clarification to that state's attorney general's office for a ruling.