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Irresistible Force Meets Immovable Object - A Lead Free Essay
May 1, 2006 |Estimated reading time: 25 minutes
By Gordon Davy<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Note: this essay first appeared in the IPC's Lead Free Forum (Leadfree@IPC.ORG)
My father once told me that the result of an irresistible force meeting an immovable object is an indescribable collision. Indescribable as the collision may be, I want to discuss in some detail the events I think are likely to unfold in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Europe during the weeks and months following July 1. Disclaimer: I've given this matter a great deal of thought, but my training is in science, not business, law, or government, so I may lack adequate perspective. Also, keeping up with all the developments in this area is virtually impossible, so I may have overlooked some important factors. I have tried to be impartial and avoid wishful thinking. I offer some predictions and more questions. I intend to discuss, not to campaign, and to provoke thought, not hostility. I hope there won't be any attempt to shoot the messenger!
To get a sanity check, I have contacted a few of the forum contributors with a preliminary version of this essay. They have graciously responded with valuable and influential insights, some of which I cite. It should go without saying that I speak solely for myself, and that while everybody is curious about the future, only God knows it.
This is admittedly a long essay. It is easier to read as a formatted document than as the plain text of the forum posting. I can email it as .pdf file to requesters who contact me.
Background for newcomers to this forum, on July 1 the laws implementing the RoHS directive are to take effect in all twenty-five Member States of the European Union. The RoHS directive (just five pages long) prohibits the use of certain substances, some up to now widely used, in most categories of electronic equipment sold in any MemberState. (RoHS does allow certain limited uses for the prohibited substances.) The substance with highest visibility is lead (Pb), for which the most visible use is in solder.
Country of equipment manufacture is irrelevant. (The directive does not set maximum concentration levels of the substances, but those levels - and how they are to be assessed - have been identified in a subordinate document.) The equipment categories are identified in AnnexIA of the companion WEEE Directive. Some of the examples in the accompanying Annex IB are so broad as to apply to just about anything that carries an electrical current. WEEE mandates the collection and recycling of ten categories of waste (unwanted) electrical and electronic equipment so as to keep them out of the municipal solid waste stream. (I will not discuss WEEE at any length here.) RoHS was split out of earlier drafts of WEEE as a separate directive.
It has been almost universally assumed that RoHS does not apply to military hardware, and to hardware installed in larger (and uncovered) systems such as autos and airplanes, but those exemptions appear only in WEEE (in the Scope section). Getting a binding interpretation from government authorities on this and on many other ambiguities has proved impossible. The date shown at the top of each document is 27 January 2003. There have since been amendments, but none changing their basic nature. The WEEE directive allows each country some autonomy in its implementation. In contrast, the EU rules for the RoHS directive demand that the law in each country must reflect accurately its requirements - neither more nor less -
to ensure a uniform market throughout Europe.
Enforcement: the irresistible force with the exception of Harvey Miller, whose views I discuss later, forum contributors seem to have assumed that RoHS will be enforced. How that enforcement will be executed, and the timing of it, have not been as widely discussed.
Certainly the large manufacturers - and some smaller ones - of electronic products covered by RoHS (and the electronic component manufacturers) have indicated by their actions that they expect enforcement. To make their products compliant, those manufacturers have, as forum participants know very well, spent a great deal of money (beyond what they would otherwise have spent) in modifying their materials and processes, and in developing compliance assurance processes as well. RoHS makes noncompliant manufacturers subject to heavy penalties. This could include impoundment of their products that are then on the market.
I discuss below several reasons why RoHS enforcement appears to be irresistible.
Extensive noncompliance: the immovable object. It is becoming increasingly clear that products built by many small- and medium-sized manufacturers will not be compliant. Michael Kirschner estimates their market share to be only from five to ten percent; Harvey Miller has a much higher estimate. I don't have a number to offer, but I think that there will be enough noncompliance to be an immovable object. Apparently, some of these manufacturers have yet to hear of RoHS, and those who have heard of it only recently can't possibly make all the required changes to their materials and processes anytime soon. It takes too long, and as every company that is on track to comply has learned, documenting compliance to their own
satisfaction takes even longer.
How enforceable will RoHS be in the face of widespread noncompliance when it would take so long for the remaining noncompliant manufacturers to comply? Rigorous enforcement would be highly disruptive to the market. The enforcement agencies of the twenty-five EU Member States appear to be on the horns of a dilemma - whatever they do, there will be an
indescribable collision.
RoHS green? I forecast first something that will not be the first thing to happen, but that will happen. Eventually the notion that RoHS is somehow "green" will come to be regarded as a just-so story - propaganda made up to promote an agenda. Because of widespread litigation drawing attention to the issue, people will learn that even if RoHS-compliant hardware were to become the only hardware available anywhere in the world, no cases of poisoning by lead, or by any of the other prohibited
substances, would be prevented because there never have been any cases from such use.
As for the effects of the disposal of waste electrical and electronic equipment on the environment, I forecast that as a result of analysis occasioned by the collision there will come to be general agreement on the following two points:
1) Despite oft-repeated claims to the contrary, disposal by municipal incineration or by any kind of landfilling of waste electronics does not measurably harm the environment.
2) For the foreseeable future unregulated third-world recycling will continue to pollute the air from burning, and the ground and water locally with noxious substances used to recover whatever metals are in the recycled hardware. RoHS and WEEE together will cause no discernible reduction of this activity.
The market forces driving the impoverished people in these countries to engage in this recycling are too strong for legislation and enforcement (both frequently thwarted by bribery) to prevent. Unregulated recycling is low-tech. In addition to the indigenous discarded electronic hardware in the third world (itself a significant fraction of the waste stream being recycled improperly), it's quite easy to smuggle waste electronic hardware out of the rest of the world and into these countries. It is also easy to relocate the site of operations if authorities try to crack down or the pollution level becomes intolerable.
I have offered evidence and arguments for these points in previous postings to this forum and will not repeat them here. Also, the forecast of growing awareness that RoHS lacks a factual basis has obvious implications for the WEEE directive, but that needs to be a separate discussion.
Rigorous enforcement? Rigorous enforcement of RoHS would remove a significant fraction of the electronic products on the market. It would be highly disruptive. If only non-compliant versions of a needed piece of industrial equipment can be found, then the availability of RoHS-compliant consumer products is little consolation.
Yet Article 8 of RoHS tells Member States that they must establish penalties for breaches of the enabling legislation that are "effective, proportionate and dissuasive." "Proportionate" presumably means related to the degree of non-compliance, with the greatest degree being continued use of the traditional materials - in particular ordinary tin-lead solder. (Interestingly, the sale of solder itself appears to be OK, presumably to allow its use by European manufacturers of non-covered equipment categories.) I take "effective" and "dissuasive" to mean severe enough to prevent continued market presence of any non-compliant product. For a manufacturer just to pay a monetary penalty to a government and keep it available in that country would be contrary to the clear intent of Article 8.
RoHS has no provisions for paperwork (e.g., seeking relief for a particular WEEE subcategory of hardware) or explanations of extenuating circumstances for noncompliance. There is no identified appeals process other than, of course, the courts.
Court cases one wonders how much latitude even the courts have in considering cases. Ordinary tin-lead solder in an electronic product that fits clearly into any WEEE Annex IA coverage category other than 8 or 9 is noncompliant prima facie - on the face of it. And it isn't at all hard for an enforcer - or a competitor or an environmental activist - to find it. It deserves mention that because of permitted uses of the prohibited materials, enforcers may well cite compliant hardware as being
noncompliant. Michael Kirschner says that enforcement will be enabled by supplying "the army of enforcement agents with their very own handheld XRF guns. This is an extremely dangerous and complex tool to give to someone that is not, at the very least, a very experienced technician or, preferably, an experienced engineer." He predicts misinterpretations from,
for example, Pb in ceramics of capacitors or glass of resistors.
The only apparent defenses in court will be:
1) Prohibited materials are present solely in permitted uses.
2) The equipment does not fall into any of the covered WEEE categories.
3) The cited equipment was put on the market before July 1. This latter might be difficult to support if the manufacturer has not demonstrated at least the intent to comply. It will of course become even harder as time goes by.
4) Compliant hardware has a high failure rate due solely to the non-use of a prohibited material. That would be a very difficult defense.
Dan Kallin says "I suspect that the average person, when their cell phone stops working, is not going to consider for even one second tin whiskers because of government regulation as the cause."
On the other hand, John Burke says that he expects the reliability issue to "tip the situation." Harvey Miller says "All it will take is a rape that could have been prevented, a fire unreported, a bomber who could have been stopped, with a lead-free cell phone the cause of failed communication. Some enterprising reporter will pick up on it. And some manufacturer will pay."
Brian Ellis assures me that challenging the law on its merits wouldn't work. "It was promulgated according to a so-called democratic procedure and no court can interfere with the legislature, any more than the latter can interfere with the judiciary." He says "the first frivolous cases rejected by national courts (e.g., a TV using SnPb) will be thrown out by the lowest
instance and would, at the best, gain the maker only 6 months or a year, [and they would not be allowed to keep non-compliant product on the market during any appeal]. This will make others not wish to lose money in similar cases."
The large investment by the diligent manufacturers makes enforcement more likely. John Burke recently posted a link to an article discussing how WEEE- compliant companies are reporting non-compliant companies to enforcement authorities. Surely RoHS-compliant companies will similarly report, with the expectation of rigorous enforcement. Environmental activist groups will be watching, too.
Failure by any country to enforce, by allowing products built by noncompliant competitors to remain on the market, would create a case in equity. Brian says that complying companies would seek injunctive relief and the courts would grant it.
In a novel twist to previous cases of big business being portrayed as anti-environment, here the big companies would be going to court as plaintiffs seeking relief from government's failure to enforce an environmental law. Will the court systems of the Member States be able to handle the number of cases brought before it? How long will it take to get them all heard?
Also, the European Parliament can litigate in the European Court of Justice against any EU country that it deems not to be enforcing rigorously enough. How likely is a court to consider the economic consequences of its decision? Brian says "There are plenty of precedents where the ECJ has ruled against commonsense and has caused major problems for a given sector."
It would take a long time for all this to get sorted out in court. Brian says "The current backlog for the ECJ is 6 years, so that would allow 4 years for the lower court, higher court and appeal court within the Member State, to reach the 10 years I suggested. By this time, of course, there is every chance that the article being made will have become obsolete, anyway! (And/or the manufacturing processes.)"
Other incentives to rigorous enforcement, a further complicating factor for Manufacturers, is that other governments besides the EU are preparing RoHS-like legislation: China, Korea, California, and perhaps others. Brian predicts that by 2012, there will be fifty to one hundred countries with a RoHS-like law covering at least ninety percent of the electrical/electronics industry. Michael Kirschner states that even if RoHS were not enforced in Europe, similar legislation is likely to be enforced
elsewhere. He asks "How unworkable would RoHS have to be for China to have second thoughts?"
In the face of rigorous enforcement, as noncompliant manufacturers belatedly considered what to do, the need (by those that can afford it) somehow to redesign, document, and then produce a compliant version of existing product lines would balloon. I think that the demand would quickly overwhelm contract manufacturer capacity. Developing in-house competence would take years, so it would take a long time for the need to be met.
Black market? What other options might manufacturers with nonconforming hardware on the market consider in the face of rigorous enforcement? Once they recognized their predicament, some would probably remove the hardware to make sure that it was not impounded and that they were not given a stiff fine. But they would not be very happy with this interruption of their cash flow, particularly with no relief in sight.
When a government edict interferes too much with commerce, a black market develops. If a company needing a piece of equipment that is no longer available on the open market - or due to limited supply is very expensive and on back order - there would be a strong temptation to find a manufacturer with nonconforming equipment that can fill that need, immediately, at a bargain price. Especially if the manufacturer has affixed a green sticker to it.
Entering the black market would be more difficult for European manufacturers. The disappearance of their products from the legitimate market would place them under suspicion of their governmental authorities and entail a legal jeopardy more severe than that for manufacturers in the rest of the world. (They could, of course, abandon their work force and move out of Europe if they could afford it.) This Europe-specific issue would be one more unintended consequence of RoHS.
Should a black market develop, those who succumb to temptation would decide that the benefit of smuggling out-weighs the risk. The operative phrase would be "don't ask, don't tell." The web would certainly facilitate this black market, and it would be very difficult for government enforcers to interdict it - if they even wanted to.
As a counteractive to a black market, Brian points out "Nature abhors a vacuum. If there are only non-compliant goods available, someone will make compliant ones, plastered with green labels, wheelie-bins and what have you to weigh on the public's conscience." (Elsewhere he says that the public couldn't care "two hoots" about RoHS.) Several of my correspondents say that they think it very unlikely that a black market would develop, but Andy Kostic has raised it as a possibility, and I thought that I should at least.
Will selective or delayed enforcement, reduce or reverse RoHS?
The result of the RoHS disruption of the market by rigorous enforcement would be not only an economic catastrophe for the affected manufacturers and for their customers but a political one as well. Consumer products will presumably be for the most part compliant, but industrial products are less likely to be so. That would impact business and hence employment.
Europeans who up till now have passively allowed their "representatives" in the Parliament to operate with virtual anonymity and to pass whatever laws they wanted to would become outraged. That outrage would be multiplied when it is realized that RoHS has no health or environmental benefit. Imagine the less-anonymous proponents of RoHS going into hiding as it became clear what their directive was doing to daily life all over the continent!
Brian thinks that Sweden and Denmark might enforce rigorously enough to include impoundment. Chuck Dolci refers to the possibility of an ambitious prosecutor making life miserable for one or a few companies with selective enforcement. If that ambition extends to the point that noncompliant equipment disappears from the market, it will be interesting to see how
consumers react to the privation done on their behalf. Will they make life miserable for the prosecutor and his superiors?
Faced with the magnitude of noncompliance, extensive hardware impoundment seems unlikely, although Dan Kallin forecasts "significant enforcement through competition" and "initial enforcement toward one or two well recognized brand names." He also says that imports will be more targeted for enforcement simply because it is easier, and Brian agrees.
Despite all of the reasons for rigorous enforcement, I think that course of action will predominantly be too distasteful for Member State governments. All my correspondents agree that RoHS for the most part and for now will not be enforced rigorously.
Michael Kirschner points out "The EU goes on vacation in August, and plans for it all July. Not much will happen in the summer." So for the most part the collision will be in slow motion. However, most predict that compliance will gradually increase.
He says that environmental activist groups will not be happy with the pace of enforcement, and that there will be court cases. He points out that it took a decade of court cases to clarify the 1994 packaging directive. Although he says that the comparison is a stretch (since it is much simpler for a government to implement RoHS), we might get some indication of what to expect from the degree of WEEE compliance being enforced. As an example, despite an implementation deadline of 13 August 2005, the UK has yet to pass the enabling legislation.
Last December, the Department of Trade and Industry announced an immediate review of proposals for implementing the WEEE directive in the UK. This decision reflects the continuing concerns expressed by businesses and stakeholders. It also reflects the Government's commitment to implementing the Directive in the UK in a way which maximises the environmental benefits associated with the Directive and minimises the costs to business. The review will be undertaken by a cross Departmental team and will be followed by a full consultation exercise in the Spring before we proceed to transpose the main provisions of the Directive into UK law.
Note that by this delay the UK appears to be violating the directive. Also, the EU Parliament has expressly forbidden the cost of compliance as a consideration.
Michael is sure that enforcement will not be so rigorous as to result in a black market. There is a "distinct lack of desire to prosecute." He quotes Steve Andrews of DTI "If we have to prosecute then we have failed." He says that the rest of the EU member states are probably going to follow the UK's lead.
Brian says "No one was more opposed to RoHS than I, and I still am on scientific and environmental grounds, but I'm wise enough to recognise that the clock can no longer be turned back. I fear that it is already a fait accompli, even if it takes a few years to be fully implemented."
The enforcers may try to delay or relax enforcement by issuing citations and demands for documentation proving that the hardware was put on the market before July 1, but how long could that last? What will happen next? Justice delayed is justice denied. Once it becomes clear in any one of the Member States that the enforcers are stalling or that they have become overwhelmed with the magnitude of their task, lawsuits will be inevitable. Selective enforcement would also be inequitable.
The continued presence, and particularly of appearance on the market, of manifestly noncompliant hardware is a moral and economic affront to those manufacturers that did exercise due diligence and spent the money to comply with the implementing laws. That, coupled with nagging questions about the reliability of compliant product, would put them at a competitive disadvantage. (Consumers probably won't know about those reliability questions, but industrial customers might be more informed.)
That is exactly what they will attempt to establish in court. I wonder how many company lawyers are already preparing quietly for such an eventuality. How will the legal system of any one of those States handle the onslaught of cases?
Environmental activist groups will also perceive failure to enforce as a serious threat to their continued effectiveness and will not remain silent. But public demonstrations of protest are unlikely. How many people would support attempts to reduce the choices available to them in the market? Should the EU Parliament attempt to delay RoHS (or to reduce the number,
now 8, of WEEE Annex 1A categories that it applies to) that also would be inequitable. How many years of delay would be needed for the degree of non- compliance in the industry to drop to a level at which enforcement becomes practicable? Even given a fresh opportunity, faced with the enormous cost and time investment needed, some manufacturers would just abandon the European market and others would go out of business instead. This may already be happening.
No enforcement? The exception to the expectation of RoHS enforcement that deserves special mention is Harvey Miller. He has been a consistent critic, although the accuracy and timing of his forecasts have been mixed. In 2000, in his first posting to this forum he called the draft legislation that became WEEE and RoHS "insanity". He later referred to efforts he thought
to be going on by companies and industry associations to "consign the no-lead movement to history, along with Y2K." He anticipated that the draft legislation would not become enacted and suggested that people working on this project for their companies "hedge their career bets" by finding something else to do. As the legislative activity rolled on, he "regret[ted] the enormous economic toll on the world electronic industry."
Harvey, with Joe Fjelstad, urged the IPC to adopt "a more pro-active policy actively opposing a misguided initiative" and to "do more in leading the way for science-based risk assessment." In May of 2001 he called the draft legislation "a hollow law ... with very little enforceability." I recall later postings to the same effect, and following a recent ex-change with my correspondents, he remains of this opinion. Is Harvey right this time?
Compliance forecast
I forecast that on July 1 and for a long time afterward, due to widespread unawareness of the RoHS laws (I discuss the general press's unawareness below), the European marketplace will have many products from non-compliant manufacturers.
It seems likely that for a number of niche categories there will be no compliant version available. Brian doubts that compliance of such products will ever be checked. Dan Kallin says he expects "that there will always be non-compliant product. Some on purpose and some accidentally."
What will be the direction of compliance during this time? I have changed my views more than once in preparing this essay. I find the arguments of Brian and of Michael to be most convincing, and so even though I would prefer not to see it, I forecast that compliance will increase.
I do not regard it as obvious that lead-free solders are inherently unreliable - particularly in the less rigorous service environments for covered equipment categories. I think that a company would have a hard time trying to use such a defense. There is less info on lead-free solder reliability, but I see no "gotcha" either. Of course, use of a higher soldering temperature may introduce other causes of unreliability, and equipment that is more complex is harder to make compliant and will be at greater risk than a cell phone or PC. Relating whisker shorts (very hard to even find) and solder opens to RoHS will be too difficult. How the market regards the question remains to be seen.
How big a story?
My final forecast is that because this collision will be in slow motion, but will involve a great deal of litigation, it will become a news story this summer but not a blockbuster. The general press will remain oblivious to what is coming, and due to a pro-environmental-activist bias will attempt to downplay it.
Chuck Dolci says "Laws that cater to the establishment (in this case the environmental movement) and their subservient media are never revisited no matter how bad they turn out to be. The media will never report as news anything that shows how bad the consequences of RoHS and WEEE are and how much of a failure they are - that would not please the establishment. And if the media doesn't make it an issue the politicians won't pay any attention to it. So I stopped making predictions about bad laws." Brian says "The average Joe couldn't care two hoots, so neither will the press. It does not involve sex, corruption, religion or celebrities."
Dan Kallin says "Call me a cynic, but I have observed a couple of key points over the years:
1 - Often there is little connection between legislation and logic other than the location of the l, g, and i
2 - Justice may be blind, but that does mean the entire legal system is equitable or fair.
3 - Popular news media focus on sensationalism rather than information. Chuck says "I have predicted dire consequences with respect to certain US laws and I have been always wrong. Not because the laws weren't as bad as predicted - they always were, or worse - but people learn to bear the costs (or hide them so no one really knows what the true costs are), work around the problems or just learn to live with them and the world moves on." Brian has stated similar sentiments.
In a recent syndicated newspaper column discussing the degree of importance attributed to facts and to the tilt of the press, Thomas Sowell observed "What is more frightening than any particular policy or ideology is the widespread habit of disregarding facts. Former House Majority Leader Dick Armey puts it this way: 'Demagoguery beats data.'" A single example from the column of treating facts as expendable when they don't fit our notions: a crime committed against a homeless person is dramatized, repeated, and denounced. A crime committed by a homeless person is passed over in silence by much of the media. (They evidently regard it as a "Dog Bites Man" event and hence not news.)
John Burke has just announced a new web site http://www.RoHSUSA.com, where engineers can register their rea-sons for opposing RoHS. He's calling it "Pb", as in "Push back" - "The truth about lead in electronic solder." From that site: "I do not believe it to be possible to stop the RoHS lead in solders ban, but feel it would be negligent to let the protests of engineers and environmentalists everywhere, go unrecorded in the event that the truth of the environmental impact of this legislation becomes known OR in the event that the replacement has so many reliability issues that the legislation is in a position to be reversed."
I'm glad that he thought of it and is willing to make it happen. I think that we'll see a flurry of response. I wonder how IPC will react. I wonder if anyone in European government will notice or care. If they don't they should.
So while Brian thinks that RoHS is forever, John believes that RoHS cannot be stopped anytime soon but eventually "the truth will out," and that his website can function as a focal point for lobbying the "system" once the general public begins to grasp the problems with RoHS.
Harvey predicts "When the facts are fully reported, this folly will die as have so many before." Further, he says: "The reliability questions re lead-free solder will support more exemptions. The exemption process has the potential to save legislative faces while it gradually pulls whatever teeth RoHS has. Oops, I probably shouldn't have said that. Somewhere in that process, people will find and go back to Braden Allenby's determination, after much study, back in 1996, that "counter-intuitively", lead is the more benign metal to alloy with tin for electronic solder-- from a total eco-logical system point of view. Long-term optimists are bound to be disappointed in short term outcomes. I still remain a long-term optimist even when reality throws my timing off a bit. Stupidity, opportunism, and venality may win for a while, but they will be unmasked. I do think that the long-term record supports that view."
Joe Fjelstad agrees: "I share Harvey's implied sentiment that when presented with the facts the "Average Joe" (with whom I can easily identify ;-) can make a sound decision." Further, "the truth has a way of continually popping back up no matter how deep one tries to bury it." I have already forecast that the truth will eventually become well known. But how long, if ever, will it take for awareness of that truth to weaken or reverse RoHS?
Andy Kostic sees a parallel to the 18th amendment to the US Constitution and the enabling Volstead Act making Prohibition the law of the land. He writes "It prov