With recycling efforts well below international targets, will manufacturers be forced to adapt again?
Environmental issues have been front and center in electronics for decades. Most engineers today remember when the Restriction of the Use of Hazardous Substances in Electronics (RoHS) first went into effect in July 2006.
Michael Kirschner is president of Design Chain Associates, where he helps manufacturers understand and ensure their products comply with health and environmental regulatory, customer and market requirements. He has broad expertise in areas including semiconductor quality and reliability, software design and development, hardware design, development, and manufacturing, as well as manufacturing processes and supplier/supply base management.
This background enables him to help manufacturers assess and improve supply chain risk, readiness and performance, and achieve compliance with REACH, RoHS, Circular Economy, EcoDesign, CEAP, WEEE and other related health, environmental and social regulations.
In March he spoke with PCEA chief content officer Chelsey Drysdale on the open comment period for RoHS 3, the circular economy, and why environmental and sustainability standards have yet to achieve their goals.
Chelsey Drysdale: On your LinkedIn page, you have called attention to the ongoing public consultation period of RoHS, which I believe ends later this month. What is your general sense of the European Commission’s environmental goals with this latest comment period?
MK: I think they’re going to bring RoHS into alignment with the Circular Economy Action Plan (CEAP). Just what they will do should have been defined in their circular electronics initiative, which was supposed to be published a few months ago but still hasn’t been released. To answer the question, I would have to look back at the call for evidence, which is really what you’re asking about here. This is the call for the open stakeholder consultation that’s ongoing right now. It’s almost over.
CD: I saw March 14 as the deadline.
MK: Yes, March 14, so there’s not much time. The Commission was required by the RoHS directive – in Article 24, paragraph 2, specifically – to carry out a general review of the directive and present a report to the European Parliament and Council, accompanied by, if appropriate, a legislative proposal. That was supposed to be in place by July 22 last year. They did get the general review that a couple consultancies produced, but they did not get a legislative proposal. That’s what they’re working on now. They’ve [received] a lot of input and complaints over the last decade about 2011/65/EU. I think they’ve identified in this call for evidence things they want to deal with, or they believe they have to deal with, like scope problems, which they’ve addressed. There’s still a few outstanding. The FAQ has not been revised since 2012. At this point, it’s hopelessly out of date and really needs expansion in certain areas. One of the big ones is what is meant by “large scale,” particularly when it’s addressing large-scale installations.
There’s two big issues: the exemption renewal process and the substance review process. The exemption renewal process is probably the one that’s affected most manufacturers. They initially had 18 months from the time the exemption renewal application date ended to come up with an answer about whether they were going to renew the exemption. That year and a half turned into years, so that was very optimistic. The first time around, they got 80-some exemption renewal applications. Now we’re seeing the same problem because we’ve got exemptions that will expire in 2024, and we don’t have clear indication of whether those exemptions will be renewed.
The substance review process is challenging as well because we don’t have a clear understanding of what the methodology is for selection and evaluation. We have a draft process from the Commission but not a natural process, and here we are 20 years into RoHS. It’s unclear to a lot of people why it differs from the REACH process – the evaluation part of REACH – which is pretty well-described.
We also have the EcoDesign directive, which all of a sudden in 2019 banned an entire class of halogenated flame retardants from enclosures for monitors, displays and televisions. There’s multiple different paths for substances to get restricted and affect an electronic product.
We do have the RoHS process itself, as I mentioned, which is fairly unclear, but it looks like it’s going to result in a couple substances getting restricted at some point in the near future, perhaps under RoHS 3 or whatever replaces it. One is going to affect the printed circuit board industry, and that’s tetrabromobisphenol-A. If that gets restricted, it may or may not have an impact. I don’t see it having a significant impact because TBBPA is not present in printed circuit boards, since it’s reacted to form the epoxy for board material, as well as mold compounds for ICs and other devices where it’s still used. It’s just any remaining level of the substance can’t exceed the limit, probably 1000ppm. Those are what I see as the big issues, but they also say enforcement has been challenging, particularly with e-commerce, and then there are certain unclear and outdated provisions on spare parts or scope and insufficient provisions to support the circular economy, that is, for secondary resources.
CD: As a follow-up, the EC says this version initiative will simplify and increase the efficiency of the current rules and improve their enforcement. How so?
MK: That’s in one of the options they are suggesting as a possible outcome of this process. They say they’re going to clarify and improve the exemption criteria and process; clarify and approve the substance restriction trigger criteria process, both of which I mentioned before; ensure coherence with other legislation, primarily REACH and EcoDesign; and improve implementation and enforcement. How they will improve enforcement is unclear to me. By making it a regulation, I think that could make it easier because then all the member states have essentially the same regulation to look after. They may have their own enforcement regulations, but at least they’ll have the same regulation. I think to improve that, they would have to specify more common enforcement criteria and mechanisms across all the member states because right now they’re very different. In some places you can go to jail; in other places you might just get fined for the same offense.
CD: What is the proposed timeline for the latest rev?
MK: According to the Commission work program for 2022, the revision of RoHS is planned for the last quarter of 2022, so sometime later this year. Whether they hit that, we don’t know.
CD: In a post on LinkedIn, you suggested the EC could eliminate RoHS. What are the chances of that? If it does, what are the implications for the market?
MK: That’s a good question. I didn’t really suggest that; the Commission did. They gave us several possible options, one of which is repealing the RoHS directive and incorporating its provisions into the REACH regulation. I don’t think that’s going to happen because they’re two completely different regulatory mechanisms. REACH has a much broader horizontal scope. It regulates chemicals across almost all applications of them. RoHS is in the electronics vertical. RoHS restricts the homogeneous level and REACH, at least the disclosure aspect of it in the authorization part, a candidate for list of Substances of Very High Concern, that’s at the article level, which is a different level than homogeneous materials. The restriction mechanism under REACH is all over the map. It’s very dependent upon what the chemical is and how it’s used, where it’s used, what the markets are, etc.
The other possible way they could repeal the RoHS directive is by addressing product requirements related to the environmentally sound recovery and disposal of electrical and electronic waste under sustainable products legislation — that is, in the context of the Sustainable Products Initiative (SPI) or revising the EcoDesign directive. This is an option where they tie together RoHS with the EcoDesign directive framework, which is directive 2009/125/EC. Implementing measures are written for that for specific product verticals that historically have only focused on energy, but the EcoDesign framework directive allowed them much greater latitude about what they could address. In the past few years for monitors, displays and TVs, they added a ban on halogenated flame retardants. They’re also addressing other aspects of materials and circular product design that are beyond energy and energy use to other implementing measures to the extent that they’re actually specifying functionality for products in some cases. For instance, your dishwasher has to have a specific mode with a specific name. It’s wild. They also say they could just maintain the RoHS directive as it stands and update the FAQ. I think that would be a big mistake because the RoHS directive has problems. They say they could simplify and clarify RoHS by introducing and revising legislative and other measures. That is fairly likely. They say they could transform the RoHS directive into a regulation. That also is fairly likely. I think those two are really the most likely approaches moving forward, as opposed to just wiping it out altogether or incorporating it into REACH or leaving it as is.
CD: One criticism of RoHS is that analysis testing is burdensome and lacks consistent measures, thus the potential for discrepancies. Would this issue be resolved if the Substance of Very High Concern requirement replaced RoHS, as some have suggested?
MK: Testing is not a requirement of RoHS and disclosure, particularly at the article level, which is the SVHC requirement for those not based in the EU and subject to the authorization aspect of REACH, whereas SVHC disclosure ultimately can become a ban, unless you’re authorized to use the SVHC. That’s just not the same as restriction at the homogeneous material levels, which is the RoHS approach. So that’s just not going to happen. I’m not sure who is thinking the SVHC requirement is going to replace RoHS; that’s unlikely.
Testing is just not something I think is the right approach. The preferable method is to simply get the compliance documentation from your supplier. I think testing is an appropriate mechanism to keep suppliers honest or to verify their information as needed, but it’s not really a solid or reliable primary mechanism to ensure compliance against the RoHS requirements, which are at the homogeneous material level. Testing is simply not going to get you the data you need, including the detailed exemption information at that level at a cost that’s reasonable. It’s going to cost like $200 to test a part to see if it has RoHS substances in it. If you have a complex product with thousands of unique parts, that can really exceed a rational amount of money. And even if it doesn’t – even if you’ve only got a handful of parts – it’s unclear to me what testing gets you. You have to do it for every lot of every component that’s used in your product over time, unless your supplier can guarantee lot-to-lot consistency, and you believe them. If they have process control and you believe them, then why are you testing? I think people need to reread IEC 63000, which is the harmonized standard defined by industry and approved by the European Commission to replace the testing requirement, which is defined by the new legislative framework 768/2008/EC, because testing again is just not rational. This is why manufacturers post their material composition or post sometimes useful, very often useless, certificates of compliance on the website, so you don’t have to test. Sometimes you may have to inquire a bit more deeply to make sure what the suppliers are giving you is actually meaningful. But that’s another story.
CD: What can we expect in terms of a ripple effect to other markets if/when this version of RoHS is ratified?
MK: It may influence them; it may not. Countries that are trying to become EU member states will generally be more likely to implement whatever changes the Commission makes, but others like China are under no such obligation, and they’re going to aggressively remind you of their sovereignty when you ask them about it, so they don’t have any obligation to do so.
Mike Buetow: If I remember right, you started your career as an electronics designer.
MK: I’ve done that sort of work. I’ve had a long and sordid career [laughs], mostly in semiconductor quality and reliability and component engineering, but I’ve also done electronic design work, software development, all kinds of things.
MB: I’m guessing the term circular economy wasn’t part of your vocabulary back then.
MK: No, definitely not.
MB: If I understand it right, the idea of the circular economy is to extend the useful life of products and materials by creating these loops of the materials and products circulating in the economy. If this is the end of RoHS, which doesn’t seem likely based on the conversation here, what does that mean for the circular economy? And in your opinion, does the alphabet soup of other regulations, in particular WEEE, enhance that loop as well as they could?
MK: Great question. I don’t think WEEE has been as successful as the Commission has expected it to be. That’s why I think we’re seeing them talk about the circular economy. They have been less than successful in achieving their goals for the percentage of e-waste that’s properly recycled. It’s somewhere around 40%, according to their own data, and I think they expected it to be above 60% by now, but even that’s not enough. Fundamentally, we’re still using the classical linear product lifecycle process to both design products and manufacture them. And really, manufacturers haven’t made any changes to process or design to products to make them more recyclable or more reusable. They’ve just paid the amount of money the recyclers and member states are asking and said, “OK, it’s your problem now.” That’s what the circular economy is about: “OK, we’ve had enough of this. We’ve got the European Green Deal.”
The Circular Electronics Initiative [ed.: part of CEAP] was supposed to give us a sense of how this is all going to change because we do have all these alphabet soup regulations that affect electronics in kind of a piecemeal and different manner. I think they’re going to try to tie this all together to be more sensible and coherent, rather than have RoHS, REACH, EcoDesign, the POPS [ed: Persistent Organic Pollutant] regulation, packaging, batteries – all these different regulations impacting one aspect or another of the electronic product and the design of that product. I don’t know how they plan to make it more coherent, but I certainly expect to see changes to a regulation that simply bans substances like RoHS to make it more circular. For instance, if you simply ban a substance and don’t control what the replacement is, you may or may not get a more environmentally preferable substance. Manufacturers are generally going to do what’s least expensive and most expedient, and if that least-expensive, most-expedient alternative is not the most environmentally preferable, or if it’s about the same as what is being banned, then there you go. That’s happened a couple times with RoHS specifically. It turns out, for instance, the tin-lead solder LCA versus the tin-silver-copper LCA are about the same. You’re not getting a significant improvement in environmental performance going to tin-silver-copper, when you look at the whole lifecycle of tin, silver and copper in that application versus tin and lead according to the US EPA’s analysis of LCA. Another example, and these are regrettable substitutions because you’re going to have to replace them again, we replaced decabromodiphenyl ether when it was banned by RoHS with decabromodiphenyl ethane, both extremely similar molecules. The ethane is a drop-in replacement in most ABS plastics for the ether, and it’s pretty similar in terms of not only functionality but toxicity. Canada is actually banning that now. They’ve gotten ahead of the EU. Unless [governments] control these other substances and really drive the industry toward improving the environmental performance, they are simply putting the industry on a treadmill, and we won’t be able to get off. Hopefully they’ll be a little smarter about how they implement the RoHS recast and circular economy requirements. It will be very challenging for them and for the industry.
CD: If readers have a takeaway from all of this, what should it be?
MK: Hold on tight. [laughs] If you have a chance to submit a comment to the European Commission, do it by March 14. If you don’t have a chance to do that, keep your eye on this process because I expect there will be another stakeholder consultation once we see the draft of the RoHS recast: RoHS 3. In addition, in general, manufacturers have to take this stuff seriously. Manufacturers are not immovable objects, but I think the European Commission is an unstoppable force, so they will win, but they need coherent feedback from industry. They really do because they’re not experts in what we do, and I think they have a lot more power leeway than they probably should have in this space because there is no good counterbalance to them. When they have hundreds and hundreds of toxicologists working at the European Chemicals Agency, as well as the Joint Research Center, they have an enormous amount of expertise within the Commission to study this stuff and deal with it, and industry doesn’t. The electronics industry, regardless of how huge it is, has those resources really limited to the largest of large manufacturers, and we don’t have a separate think tank that focuses on this area to help guide the industry and help it move toward where it needs to go, as well as provide coherent feedback to the Commission and other governments. We’ve produced products for a very, very long time without thinking about the environment, and we’re campaigning for it now. That’s where we have to focus, and governments are forcing us down that path whether we like it or not. Manufacturers have to start spending the money, spending the resources, and really taking it seriously. Otherwise, it’s just going to be more and more pain.