Editor's note: As it did with air and water pollution, California leads the nation in promulgating laws to minimize the environmental impact of hazardous waste.

In 2006, the state banned common household products containing toxins — referred to as "universal wastes" — from landfills along with fluorescent lamps and batteries. Throwing used home-generated pharmaceutical sharps in the trash or recycling receptacles has been illegal since 2008. Just before leaving office last year, former Gov. Arnold Schwarzenegger signed legislation requiring paint manufacturers to take back unused and unwanted latex and oil-based paint.

There's no federal law requiring manufacturers to take back, much less recycle, used product. This is unfortunate, because such a requirement would go a long way toward extending the life of many landfills and help defray the costs of collection and disposal to state and local governments. To continue providing services, they're forced to transfer this financial burden to taxpayers through higher fees.

Depending on your state's laws, one or more of these tactics may work to begin or continue a dialogue for making manufacturers and retailer's part of the solution.

The Organization for Economic Cooperation and Development defines extended producer responsibility (EPR) as an environmental policy approach in which a producer's responsibility — physical and/or financial — is extended to the post-consumer stage of a product's life cycle. Such a policy is key for state and local governments because it:

  • Shifts responsibility upstream to manufacturers and away from municipalities
  • Incents manufacturers to incorporate environmental considerations into product design.

When the roles of government, producers, retailers, recyclers and reverse distributors, and consumers are properly assigned under such a system, the economy and the environment improve. Inefficiencies are removed, and the system financially rewards behavior that conserves resources and prevents pollution.

Until recently, local governments have been quiet about the deluge of hazardous products they must manage to comply with state landfill bans. The growing waste crisis, however, has inspired many to move into policy-making, raising their voices individually and collectively to advocate for meaningful change. They're seeking a seat at the table while new management systems are designed. They're also taking a range of actions to bring manufacturers to the table to create a level legal playing field overseen by state and federal agencies:

1. Adopt local ordinances. New York City will be a proving ground for how far local government can go in regulating the behavior of manufacturers of a particular product type or category. The city's ordinance requiring electronics manufacturers to develop a take-back program has been challenged by the Consumers Electronics Association and the Information Technology Industry Council.

Only one jurisdiction in California, the San Luis Obispo Integrated Waste Management Authority, mandates take-back by a retailer. Local ordinances require that retailers take back the product at, and manage, the end of life disposition of sharps, fluorescent lamps, paint, and batteries.

Instead of fighting such ordinances whenever and wherever they occur, manufacturer resources would be more fruitfully invested by designing nationwide collection and recycling programs. Because should the plaintiffs prevail, manufacturers will have to expend additional resources to comply with a patchwork of regulations across their markets.

2. File a collective jurisdiction lawsuit. Manufacturers know their products are banned from landfills because they contain hazardous material. In California, local jurisdictions could join together to sue entities that contribute to the state's stream of hazardous waste products. The pollution resulting from hazardous products and the cost to manage them could be considered a strict liability issue for manufacturers.

3. Litigate to require state action. Under California Health and Safety code Section 25253(b)(7), the state EPA's Department of Toxic Substances Control can require manufacturers to implement a take-back system to collect and dispose of or recycle a product that contains hazardous material.

The department has failed to exercise this authority for any problem product; since 2008, for example, it's failed to require manufacturers selling fluorescent lamps to implement a system that would safely manage the mercury that's used to make their product.

Mercury is a neurotoxin and a pollutant identified on EPA's 303(d) list of contaminants. The release and accumulation of mercury endangers health and welfare. When it bioaccumulates in fish, the public and, in particular, pregnant women and nursing mothers, are cautioned to limit their diet of certain species. Contamination of California's drinking water supplies further threatens an already imperiled resource.

Cities and counties could join together to sue the department for failing to regulate mercury through its authority to mandate take-back programs. They could demand the agency to protect the environment and public health and share the financial burden of local governments that have been managing constituents' exposure to this contaminant through household hazardous waste programs.

4. Threaten to take your business elsewhere. As large-volume consumers, state and local governments can use their purchasing power to drive more environmentally sensitive product design and packaging as well as take-back programs.

Including such provisions in purchasing contract product specifications would save the time it takes to manage the waste at end of life and the money required to dispose of it legally.

A variety of jurisdictions are taking this approach and sharing the most efficient and effective ways to implement new specifications. In some cases, such as the adoption of EPEAT "green" standards for electronics, product designs are already changing.

5. Join or launch a statewide support initiative. The California Product Stewardship Council is the only organization speaking for city and county household hazardous waste programs.

Created in 2007 by local government staff who recognized the current model of waste management as unsustainable, the council's mission is simple: To shift California's product waste management system from one focused on government-funded and ratepayer-financed waste diversion to one that relies on producer responsibility in order to reduce public costs and drive improvements in product design that promote environmental sustainability. The council is also convinced this will lower burdens to tax/ratepayers, shrink government, and create private-sector jobs.

The organization provides a powerful voice to educate elected officials, businesses, and the public. Dozens of cities and counties, waste haulers, special districts handling solid waste and water services, and producers participate. Allies include nonprofits with similar interests, retailers, and a few industry groups.

Membership provides valuable opportunities for outreach and education assistance, information sharing with colleagues throughout the state, and news on the ever-changing legislative arena of producer responsibility. PW

- Rob D'Arcy (rob.darcy@deh.sccgov.org) is hazardous material program manager for the Santa Clara County (Calif.) Department of Environmental Health. This article is excerpted from "The road to product stewardship: local government as catalysts," reprinted with permission from the California Department of Resources Recycling and Recovery (CalRecycle, formerly the California Integrated Waste Management Board).