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Battery Collection and Recycling Initiatives and Transport Regulations Present Unique Challenges for Industry in 2009

George Kerchner, Executive Director
The Rechargeable Battery Association (PRBA)

An onslaught of legislative and regulatory proposals in North America relating to battery transportation and recycling has created a “perfect storm” that will impact all battery and electronics manufacturers, distributors and retailers. If these proposals are adopted, consumers also could be impacted as companies address the costs associated with these new regulations.

Since 1991, The Rechargeable Battery Association (PRBA) has served as the voice of the rechargeable power industry. We have represented our members on legislative, regulatory and standards issues at the state, federal and international level.

PRBA and its members, and many others, are now faced with navigating through this perfect storm, a challenge made all the more challenging during this particularly difficult economic climate. Indeed, the scope of these challenges is so great that nonmember companies who in recent years have been less supportive of industry-wide efforts should be rethinking whether they are really bearing their fair share of the burden of responding.

Air Line Pilots Association Take Its Case to Capitol Hill
Over the past several years, the Air Line Pilots Association (ALPA) has tried to secure changes to the international dangerous goods regulations that apply to lithium ion and lithium metal batteries. ALPA has been particularly frustrated by its inability to convince the US Department of Transportation (DOT) when that agency in 2004 banned the carriage of cargo shipments of lithium metal batteries on passenger aircraft, to extend that ban to lithium ion batteries or cargo aircrafts.

Until recently, ALPA focused its strategy on the international level. In 2006 and 2007, it filed several proposals with the bodies that develop regulations governing transport of dangerous goods: the UN Subcommittee of Experts on the Transport of Dangerous Goods and International Civil Aviation Organization Dangerous Goods Panel. These included proposals to:
• Prohibit the transport of lithium metal batteries aboard both passenger and cargo aircraft.
• Eliminate the lithium battery “exception” provisions in the hazardous materials regulations that facilitate the air transport
of consumer-product-sized lithium ion and lithium metal batteries, and keep such transportation economically-realistic.
• Change the classification of lithium metal batteries from a Class 9 “Miscellaneous” dangerous good to a Class 4.3 “Dangerous When Wet.”

All of ALPA’s proposals were rejected by the UN and ICAO by overwhelming majorities. As a result, ALPA turned its attention to Capitol Hill in Washington, D.C. where it has found support in key committees in the House of Representatives.

ALPA’s most recent public presentation of its case occurred on May 14, 2009 before a Congressional Subcommittee. It used the same arguments that failed to convince international regulators at the UN and ICAO in urging that all lithium ion batteries be shipped only as fully-regulated Class 9 materials when offered for air transport. Consistent with its presentation at an ICAO working group meeting in 2007, ALPA took the opportunity to gratuitously show a video clip of a fire involving a notebook computer, while at the same time proclaiming its concern was only with cargo shipments, not carry-ons. ALPA also skirts the issue of whether it wants more restrictive regulatory requirements to apply not only to battery shipments, but also to cargo shipments of products containing or packed with batteries.

ALPA thus is advocating US adoption of a set of regulations that are inconsistent with international regulations. (The international rules allow shipments of the lithium ion batteries with lesser (but still enhanced) restrictions. If ALPA succeeds, it would create a complex domestic and international regulatory system that is significantly different for lithium battery shipments into, from or within the US. This would substantially increase the cost of these batteries, and would discourage the continued maintenance of R&D and manufacturing facilities in the US, which would encourage shipment of jobs offshore.

Although the future of the legislation ALPA advocates is uncertain, its efforts already have led Congressional staff to urge additional regulatory action by the US DOT. As a result, DOT is in the process of drafting a Notice of Proposed Rulemaking. As currently conceived, the proposed rule would eliminate the exceptions for small consumer-type lithium ion batteries shipped by air, and lithium ion battery-powered products. Such a change in the regulations would obviously have a significant impact on any company that ships these small cells and batteries and equipment packed with or containing them. The proposed rule will probably emerge by year-end.

Battery Collection and Recycling Initiatives in Canada
But Washington, D.C., is not the only focus of activity. Disruptive issues also are receiving serious attention north of the US border.
The Province of Ontario, Canada is moving to expand its mandatory “municipal hazardous and special waste” diversion program to cover rechargeable batteries. The program is being developed under the auspices of Waste Diversion Ontario (WDO), a quasi-governmental organization, and Stewardship Ontario, a similar organization that reports to WDO.

The goal is to expand a program, already underway, that divert from the waste stream nonrechargeable household batteries (and many other used products). Under that program, “stewards”, defined as brand owners or those who import products into the province, are being assessed the equivalent of $0.125 kg for batteries sold into the province. That assessment is expected to increase as much as five-fold in the next several years.

PRBA, working in an informal coalition with Rechargeable Battery Recycling Corp. (RBRC) and the Battery Council International (BC), is seeking to convince the Canadian authorities to accept RBRC’s existing program as fully-satisfactory to meet all rechargeable battery program requirements. To this end, the Rechargeable Battery Corp. of Canada, a subsidiary of RBRC, is currently preparing an application to have its Call2Recycle program recognized as an "Industry Stewardship Plan" (ISP) in Ontario. If the ISP application is approved, RBRC intends to expand its program in Ontario to cover nonrechargeable, as well as rechargeable batteries. Importantly, if the Call2Recycle is approved as an ISP, there will be no new fees imposed on current RBRC licensees.

Furthermore, if the RBRC ISP is approved, companies covered by it will not be subject to fees assessed to support the alternative program being developed by Stewardship Ontario. Stewardship Ontario estimates the first year cost of its expanded program at $9.7 million. Those costs, and the costs of every future year, would be assessed against rechargeable battery “stewards” including companies who sell battery-powered products into Ontario.

Unfortunately, it is proving to be a considerable task to convince authorities in Ontario that there is no need to disrupt the existing Call2Recycle program. This is surprising considering the success of the RBRC program in Ontario and the more than 1,900 RBRC collection sites currently operating in Ontario.

Ontario is not the only Canadian province addressing battery recycling. In December 2008, the Province of British Columbia amended its recycling regulations to require development of collection programs for a variety of previously-unaffected products as of July 1, 2010 and July 1, 2012. In general terms, the 2010 deadline applies to small electrical, electronic and telecom equipment and lighting devices and, significantly, batteries that “could be used” to power them. The 2012 deadline applies to larger appliances and tools, “other than large-scale stationary industrial tools,” and batteries that “could be used” to power them.

Under the British Columbia law, producers, brand-owners or “first sellers” in the Province must either participate in an approved product stewardship plan or otherwise provide specified recycling opportunities. To date, British Columbia has been far more receptive than Ontario in recognizing the success of the RBRC program and appears that it may satisfy the new regulations’ requirement for portable rechargeable batteries, but this is yet to be confirmed.

And, in recent months, the provinces of Quebec and Manitoba have indicated their intention to follow the Ontario and/or British Columbia lead.

Battery Collection and Recycling Initiatives in the US
After about a decade of quiet, there also recently has been a flurry of battery-related activity on the US state level. Often, the issue arises in the context of broader “product stewardship” legislation applicable to many products, but with used batteries singled out for attention. The most notable proposals include:
• Global warming legislation introduced in Washington State included producer responsibility provisions targeted at rechargeable batteries, among other products. Producers of rechargeable batteries would have been responsible for developing and implementing highly detailed and burdensome product stewardship plans.
• In Oregon, comprehensive rechargeable battery recycling legislation was introduced that would have required retailers to accept rechargeable batteries and battery manufacturers to operate the battery collection and recycling program.
• New York legislation that would require reverse distribution collection of used rechargeable batteries. Covered batteries are
defined to include all chemistries of less than 25 pound batteries except vehicle batteries, including wheelchair batteries, and backup power and memory storage batteries. Disposal of covered batteries would be prohibited and retailers and distributors would be required to accept returned batteries and deliver them to a collector, recycling facility or, as a last resort, authorized hazardous waste facility.

US DOT Safety Advisory on Recycling Shipments
On April 2, 2009, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a general safety advisory addressed to “All battery recyclers and battery collection points and related associations.” It was intended to convey the Agency’s concerns regarding non-compliance with the US hazardous materials regulations during battery recycling activities.

In the advisory, PHMSA noted that non-compliant shipments of spent batteries may have led to several recent fires in ground transportation, including one in November 2006 in which a vehicle was completely destroyed.

PHMSA pointed out that “all batteries” are subject to requirements in the hazardous materials regulations because they have two types of hazards: (1) the chemicals or other materials contained in the battery, and (2) the electrical potential of the battery. The advisory also listed the various battery entries in the HMR and the provisions that apply to the different battery chemistries.

In a related matter, PHMSA’s Office of Hazardous Materials Enforcement mailed dozens of “warning letters” to shippers of spent batteries after its agents observed at battery recycling facilities “probable violations” of the HMR. Most of these related to failure to package batteries to prevent short circuits. The strongly worded letters referenced the Agency’s authority to assess civil penalties and impose criminal fines against shippers who fail to comply with the HMR and raised concerns on the part of many companies.

Summary
It is hard to imagine how any company involved in the battery or electronics industries will not be impacted by these issues at some point over the next 12 months. In order to stay current on such matters, members of PRBA are sent regular weekly and monthly correspondence and have an opportunity to have their voices heard at state, federal and international forums. PRBA has a solid record of success, but faces continuing challenges.

At this point in time, it will be especially important for the rechargeable power industry to work together to ensure regulators and legislators in the US and internationally understand the impacts these new regulatory and legislative proposals will have on small and large companies during these particularly difficult economic times. Many companies who have been comfortable letting others carry the burden of protecting their interests should be reconsidering whether this is fair and appropriate.

George Kerchner is executive director of PRBA. He represents PRBA at domestic and international forums such as the United Nations Subcommittee of Experts on the Transport of Dangerous Goods and International Civil Aviation Organization (ICAO) Dangerous Goods Panel. Mr. Kerchner also works as a regulatory analyst with the law firm of Wiley Rein LLP in Washington, D.C., and provides dangerous goods training for shippers of batteries and battery-powered products.

Those interested in receiving more information on PRBA activities and membership should contact George Kerchner at 202-719-4109 or prbatt@gmail.com.