In 2004, Maine signed into law landmark legislation. The first of its kind, the Maine E-Waste Law mandated that manufacturers be financially responsible for recycling specific electronics; municipalities still ensure collections sites are available and consumers still have to return the products, but manufacturers must pay for recycling costs.
In the years since, 24 states have enacted similar legislation, more are following suit and 61 percent of the population is covered by some type of e-waste recycling law.
The Maine E-Waste Law was, and continues to be, one of the foremost legislative examples of Extended Producer Responsibility in the U.S.
What is Extended Producer Responsibility?
Extended Producer Responsibility, or EPR, in its simplest form, is a strategy that engages manufacturers to take part in the entire lifecycle – particularly end-of-life disposal – of their products, shifting the accountability and economics of waste management away from municipalities.
Historically, manufacturers have mostly been held legally accountable for the manufacturing aspects of their products. The Clean Water Act and Clean Air Act, for instance, while effective at cutting air pollution and cleaning water, focus mainly on large industrial plants.
EPR looks beyond manufacturing to consumption and disposal, based in part on the idea of industrial ecology.
“The implication of industrial ecology is that the interface between industry and the environment is not just at the point where the smoke leaves the smokestack, but rather, environmental externalities have their origin in the design decisions for the products produced in the factory, and indeed, in the decision to produce a certain product in the first place,” according Dr. Noah Sachs, associate professor at the University of Richmond School of Law, in his paper “Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States.”
Viewed in this way, consumers and governments are not responsible for a product’s life or end of life; the onus falls squarely on manufacturers that choose to design, produce and introduce a product into the marketplace.
The real goal of EPR isn’t to increase recycling rates, decrease the use of virgin materials or even remove harmful substances from the waste stream – although those are all fine side effects.
The real goal is change. In theory, EPR provides an incentive for producers and manufacturers to design more eco-friendly, easier-to-recycle products and packaging, because they are being held responsible for disposal.
“Manufacturers have the most ability to influence the design to make sure there’s value in the product at the end of life,” said Carole Cifrino, program manager for the Maine Department of Environmental Protection.
It sounds easy, right? Manufacturers pay for recycling their products. But Extended Producer Responsibility in the U.S. is far from easy; in fact, it can be remarkably intricate.
EPR and Manufacturers
“In the research I did, EPR is touted as a way to promote design for the environment, but in its implementation, that’s really hard,” Sachs said. Basically, EPR hopes to transform back-end disposal to affect front-end design, something that Sachs said is hard to do in practice.
EPR can be passed to manufacturers in four main ways, as first proposed by Thomas Lindhqvist in a 1990 report to the Swedish government:
- Economic: The most common form of EPR, economy-based rules require manufacturers to pay for end-of-life management costs partially or in their entirety.
- Physical: This type of EPR, often used with electronic waste, states that manufacturers must physically take back products. While this certainly reduces harmful waste generation, it remains a logistical and monetary challenge for many producers that are not equipped to handle the waste.
- Information: Product labeling that alerts consumers of certain components and harmful materials as well as proper disposal are the most common forms of informational EPR.
- Liability: Perhaps the most drastic of EPR rules, liability says that manufacturers are financially responsible for any environmental damages and clean-up costs from hazardous materials related to their products.
Sachs said governments thinking about product-take back programs, or physical EPR, should think twice. “These have really high logistical costs with few incentives for changing design.” He is more in favor of broader initiatives like phasing out of chemicals and ingredient disclosure, initiatives relating more to informational EPR.
Dr. Seetha Coleman-Kammula, a founding partner for Simply Sustain, agrees. “The most valuable contribution from manufacturers is giving information to all the people in the chain, from disposal to recovery to collection.”
She maintains that if manufacturers supplied all of the technical scientific information about what’s in their products and how to take them apart, there would be a “whole ecosystem of little guys who would do it.”
And to truly benefit from EPR, manufacturers must take the lead in designing the whole lifecycle system. “The really smart and forward thinking companies will see a tremendous opportunity for innovation and efficiency.”
As to be expected, some manufacturers are hesitant to embrace EPR laws in the United States. In July of last year, electronics manufacturers, represented by the Consumer Electronics Association and the Information Technology Institute Council, filed a lawsuit against New York City. The complaint was that the city’s new e-waste recycling law, which would have required manufacturers to offer at-home pick up of electronics, added too much undue burden. The suit was rendered moot when a statewide law was passed later, overriding the NYC law. The state law now requires manufacturers to reuse or recycle a percentage of their electronics based on market share.
In 2009, Maine added a $3,000 annual registration fee for manufacturers to cover the implementation costs for the Maine DEP, which is responsible for collection and transporting e-waste to a consolidator. Manufacturers pick up the costs from there, shelling out for consolidation and recycling processes.
Manufacturers have complained that Maine’s fees are too high compared with other state programs, but differing cost structures and processes are bound to result as each state implements their own EPR guidelines and regulations.
EPR and Government
When it comes to EPR, the relationship between manufacturers and government can be complicated.
EPR laws in some states mandate the reduction of mercury and proper recycling of batteries and only two laws concern paint. The vast majority of EPR laws in this country have to do with electronic waste.
“EPR laws require us to develop a collection system, and fund and operate that system. And given the vast differences between state laws, that task has become increasingly complex,” said David Thompson, Director of the Corporate Environmental Department for Panasonic Corporation of North America. “There’s a challenge of understanding what’s required – and getting it right.”
Getting it right can be overwhelming for electronics manufacturers. One state requires them to forecast how many TVs they plan to sell in the coming year and base recycling targets on those projected numbers.
Another state mandates that manufacturers recycle a percentage based on their market share, while yet another state will simply bill them for recycling costs. Still another state might say that a certain hazardous material has to be reduced.
Manufacturers have to keep track of all the moving parts, ensure they’re following the many laws that affect them and alter production based on those laws. If they don’t get it right, manufacturers are usually assessed extra fees.
Thompson said that Panasonic, with the help of the Electronic Manufacturers Recycling Management Company, has voluntarily set up recycling programs in states without EPR regulations, hoping these programs would “serve as an alternative to a state law.”
Constantly accessing costs, fees, recycling rates and input from manufacturers and recyclers, states are still reworking these types of EPR laws even years after they’ve been implemented.
Despite all the effort and struggle to find compromise, Cifrino said, “No manufacturer has yet came to me and said, ‘The perfect program looks like this.”
EPR and Consumers
For consumers, it might be hard to tell that such drama is taking place behind the scenes; you’re just buying a T.V., but if you live in California, you might have a hunch.
California is the only state that requires electronics consumers to pay an added fee, which is collected by retailers and remitted to the state for managing recycling programs.
Although not EPR in its strictest sense, because manufacturers are not paying fees, the Electronic Waste Recycling Act of 2003 attempts to alleviate the sometimes high cost of recycling that cities bear.
It also lets consumers directly see a monetary cost for recycling, something that Doug Smith, Director Corporate Environmental Affairs for Sony, says is essential. “They can see it, right there on the receipt,” he said. It helps bring consumers in on the EPR discussion and helps you understand the true costs of the products you choose to buy.
Sachs said that beyond understanding the impact of a product, consumers should be concerned about ingredients and components of products. “Are there hazardous chemicals getting in their homes or affecting their children?” Much of Extended Producer Responsibility is concerned with hazardous waste, like e-waste, and how to lessen detrimental environmental and health impacts.
The solution is better product labeling and the mandated phasing out of hazardous chemicals – all of which fall under some type of EPR, according to Sachs.
What’s Next for EPR?
Some experts suggest not much because of the U.S. economy and other environmental issues. “The attention has turned more to energy and climate,” Sachs said. “Municipalities have a ton of issues, so the idea of new recycling initiatives has fallen by the wayside.”
Still, 24 states have enacted some type of EPR law in the past 10 years – mostly having to do with e-waste – leading many to believe that the trending topic is gaining some speed.
“I think that the primary activity will continue be around electronics because of the volume of the waste stream, and also much more attention to waste exports and where they end up,” said Sachs. He also sees the attention shifting toward direct intervention on the front-end, such as the government mandating manufacturers reduce hazardous chemicals in their products.
Coleman-Kammula agrees that not much EPR legislation will be passed in the U.S. in the coming years. There are just too many other factors to focus on, she said. But with the help of consumers, there might be hope yet for new initiatives and well-made EPR strategies.
“Consumers can drive policy,” she said. “Well-thought-out EPR policies are obviously good for consumers and the planet, and I’m sure, in the long term, that they will be a good thing for companies, too.”