State of the art in electronic waste recycling
In the context of waste management, the legislative authority often refers to the ‘state of the art’ that a system or process must meet. The term is currently being specified in the draft of the ‘Enforcement guidelines for the state of the art in the disposal of waste electrical and electronic equipment’ of the Federal Office for the Environment. It will be published soon. What does the term mean in practice and how does it relate to private law standards?
In the Ordinance on Avoidance and Disposal of Waste (Waste Ordinance, ADWO), the state of the art is defined in Article 3 as ‘the current development level of processes, facilities and operating methods that: 1. has been successfully tested in comparable national or international facilities or activities or has been successfully applied in trials and can be transferred to other facilities or activities in accordance with the rules of engineering, and 2. is feasible for a medium-sized and economically sound company in the relevant industry’. The term can be found defined in the same way in Article 3 (h) of the Ordinance on the Return, Taking Back and Disposal of Electrical and Electronic Equipment (ORDEE).
In environmental protection law, the term is derived from the precautionary principle, according to which harmful and undesirable impacts must be limited at an early stage. A state-of-the-art facility must ensure that outdated processes are not used where better ones are available. The term does not describe a specific technology, but rather a performance requirement, and thereby brings about momentum towards continuous improvement. The second condition, economic feasibility, expresses in the definition of the state of the art that processes that are only available at laboratory or pilot level cannot necessarily be scaled up to large, commercially operated facilities. For these to be declared ‘in accordance with the state of the art’, it must be demonstrated that a new or further-developed process can be used in practice. However, the state of the art also prepares the ground for advanced technologies, which at best received insufficient ‘tailwind’ from the existing legal basis.
With the enforcement guidelines for the state of the art in the disposal of electrical and electronic waste, the Federal Office for the Environment (FOEN) wants to ensure that this waste is disposed of in an environmentally friendly manner using established technologies. The FOEN would also like to use the enforcement guidelines to create clear framework conditions and thus legal certainty and a level playing field for all companies involved.
Standards and state of the art
What about private law policies, i.e. standards and guidelines? How do these relate to the state of the art? It is often assumed that private law standards reflect the state of the art because they are constantly being further developed. According to the International Organization for Standardization (ISO), a technical standard is a ‘technical specification or document that is available to the public, established in collaboration with all interested groups and with their consensus or general endorsement, based on the combined results of science, technology and experience, aims to provide the greatest possible benefit to the general community and has been approved by a qualified body at national, regional or international level’.
Private law standards have no binding legal force. Legally binding edicts can only be issued by the authorities. However, the legislative authority often refers to standards, e.g. to the SIA standards in the construction sector, which set out the recognised rules of engineering. This means that the standards can also have legal force. A standard can serve to define the state of the art. Conversely, a new state of the art can also lead to an outdated standard having to be adapted. The two elements have a dynamic relationship.
Is the SN EN 50625 standard still up to date?
What does this look like in practice with regard to the soon-to-be-published enforcement guidelines for the ‘state of the art in the disposal of waste electrical and electronic equipment’ of the Federal Office for the Environment? Considering this official instrument, which has no direct legal force, are the standards set out in the SN EN 50625 series from 2014 used in Switzerland still up to date?
As explained in the Technical Report 20231, the enforcement guidelines go a step further than the existing standard in some areas. For example, the recovery of functions is given more weight compared to material and thermal recycling. In addition, valuable WEEE must be pre-processed as non-destructively as possible to enable optimum recovery of valuable materials. The enforcement guidelines also go further than the standard with regard to the handling and transport of lithium batteries and the associated hazards by prohibiting bulk transport of WEEE containing batteries. By calling for the recovery of rare technology metals – where appropriate processes are available – the enforcement guidelines support developments in this direction.
To ensure and further develop the state of the art in accordance with ORDEE, suitable indicators that can be used to assess the performance level of the processes, facilities and operating methods must be defined. To establish circular performance targets, the environmental benefits of the facilities and processes used will become increasingly important. In the e-conseg project that is being implemented by the Federal Office for the Environment and will be completed in 2024, indicators for the circular handling of waste electrical and electronic equipment (WEEE) are being developed2. These new assessment indicators will subsequently also influence the enforcement guidelines and thus the setting of standards.
1 Böni, H.: Circular economy for WEEE disposal – the FOEN enforcement guidelines on the state of the art set new standards; Swico and SENS Technical Report 2023
2 Wehrli, A., Remmen, K., Böni, H.: For optimised circular WEEE handling of the future; Swico and SENS Technical Report 2023
Sources:
1. The Swiss Association for Standardization (SNV); Standardisation and law – the legal status of standards (2013)
2. Federal Office for the Environment (FOEN); General provisions set out in the ADWO; A module of the enforcement guidelines for the Ordinance on Avoidance and Disposal of Waste (Waste Ordinance, ADWO); Environmental Enforcement (2024); Draft (not yet published)