Garrison and Olymbec's CRT Glass Mess 1: Throwing the Book at Closed Loop


There's a CRT glass CERCLA lawsuit claim against 60 or so companies who chose not to pay demands by the landlord for Closed Loop Recycling and Recovery in Columbus, Ohio.

I informally consulted for OEMs on David Cauchi's CLRR processing operation from 2010, all the way until 2016. My company was one of the first to cease deliveries, before speculation occurred.  "No good deed goes unpunished," as the saying goes. Garrison South Park (GSP] and Olymbec not only named us anyway, but took information I've provided online over the years and introduced it to the court as evidence that my company was deliberately part of a sham to dump CRT glass on them.

Well, well, well... Their position is that we should have known something in 2011, from hundreds of miles away, which they still couldn't figure out in 2015 (when Olymbec leased CLRR a third warehouse), or when they appraised and purchased the original property (2013) while CLRR was operating inside. It's not like multimillion-dollar commercial landlords know anything about CRT recycling?

There are probably enough of these blogs on the subject of CRT recycling since 2007 to pass as a Ph.D thesis.  Here are some important questions for the CLRR, Olymbec, Garrison South Park case.

Where did the (e-Stewards certified) Creative Recycling CRT Glass Go?  
Where did the (e-Stewards certified) 2TRG CRT Glass Go?
Where did (e-Stewards certificed) Kuusakoski get the CRT glass delivered to Columbus?
Who does GSP plan to pay to remove it?
Where will it go next?

How many landlords will have had this on their property, and how many times will recyclers have to settle the costs, before it's over?

There were several other warehouse closures of some other e-Steward certified and BAN-recommended CRT processors in the months leading up to CLRR's closure. The commercial real estate business has been "in the know" about these problems, especially in Ohio.  As GSP and Olymbec were negotiating to increase the property CLRR occupied, to receive more rent to store more material, Ohio courts were busy with unpaid employees and abandoned CRT waste down the road in Cincinnati.

Garrison and Olymbec's allegation is quite simple.  CLRR was a "sham", and everyone who ever shipped there participated in, and benefitted from, the sham.  If they can establish that all clients knew it to be a sham, they can take away the SREA protections granted to recyclers.

The EPA Superfund Recycling Equity Act [SREA] was created to keep recycling from being a good deed that gets punished.  If businesses do the right thing, and keep automobile batteries and CRTs out of the landfill, and send them to a recycler, do they create a liability?  Because however much better recycling is than landfilling, it is a lot easier to find material at an abandoned recycling warehouse than to find it dispersed over decades in the solid waste stream.

99 times out of 100, sending recyclables to a recycler is better for the environment than throwing them away. But that 100th time, if you can get if the recycler has a financial problem and abandons the material (or worse, releases it into the environment... more on that soon), could make recycling a non-viable proposition.

SREA protects those who "recycle in good faith".  If you've done your due diligence, and actually sent something recyclable (more on THAT soon), you just need to show proof that you recycled in good faith. That's the protection the Ohio landlords seek to undermine.

Caveats and conditions do apply to SREA. The stuff you send should not be "waste like" (someone should be able to tell you are not simply abandoning or discarding it). It has to meet a "specification", like those outlined in the EPA CRT Rule (intact, indoors, etc). And the recycler you use, to remain a legitimate, has to do two things:

(1) Keep the pollution from being released into air, water or ground, AND
(2) to recycle at least 75% of it within 365 days.  If they keep it longer, without seeking a variance from the Environmental Protection Authority, they can be presumed guilty of "Speculative Accumulation".

GSP and Olymbec now argue that if a recycler someday abandons or releases something, that they can go all the way back to the first material ever delivered to them.  In other words, even if you do your due diligence, and never arrange a shipment unless the recycler is compliant, that you are responsible for material abandoned by the recycler FIVE YEARS LATER.

Let's say it's 2012.  You see a TV in the garbage, headed to the landfill. You remove the bare CRT tube from the TV, and proceed to ship the very first CRT to CLRR's first warehouse at 1675 Watkins Road in Columbus, Ohio in 2012. That's before GSP appraised and purchased the property, and before GSP signed and renewed 3 leases.

If you knew, then, that CLRR was going to abandon that CRT in February 2016 - four years later - you would not be protected under SREA.  If you didn't ship something that met the EPA conditional waste exclusions (the CRT Rule), like broken tubes that were neither "intact CRTs" (condition of exemption) or "furnace ready cullet" (condition of exemption), you could be held responsible for a RELEASE under CERLA (the Superfund Act). GSP and Olymbec don't want to prove that. They say that if something happens in the future (an environmental release), you knew or should have known it would happen, simply because it might happen.

That would erase SREA, the act passed by Congress. So let's make the landlords spell this out.

How could the landlord include you in the suit, if you were the very first person who shipped the very first CRT tube in 2012?

1. Landlord Alleges that you paid an artificially low price. 
CLRR charged you 10 cents per pound in 2012, roughly the same as TDM, Dlubak, Eco International, and hazardous waste landfills.  Later, in 2014, CLRR would drop the rate for some suppliers to "as low as $07.5". Since you are in the "pool", the landlord argues that low prices charged to others in 2015 benefitted you in 2012.
2. Landlord Alleges that your CRT was speculatively accumulated by the tenant.
CLRR had to process 75% of the intact tubes it received into furnace ready cullet within 365 days. After another 365 days, 75% of that furnace ready cullet had to be recycled, or resold and delivered to another viable recycler.  GSP and Olymbec represent that they know the 2012 CRT is still there, in a pile somewhere, having been speculatively accumulated, and sues you to come get it.
3. Landlord Alleges that hazardous waste has been released "or threatens to be released".
CERCLA defines "release" as into the environment. Onto the ground, into the air, into the waterways. If it is in a warehouse, it has been "accumulated", or it is "abandoned" or even "discarded". But that's not yet a "release".  Presumably, this is why it is a landlord bringing the case, and not the Ohio EPA.  Evidently, the landlord "threatens to release" the CRT glass into the environment, and if they do so, want the 2012 recycler to know their CRT glass will be in the pool.
4. Landlord Alleges you knew that your 2012 CRT would be abandoned 5 years later.
Garrison South Park and Olymbec both contend that by virtue of your action in 2012 - when you took the CRT out of the solid waste stream and sent it for recycling - that you were an "expert". You knew that CLRR would break the CRT in a way that did not leave it recyclable, and/or that 7 years later, in 2019, that it would be abandoned in their warehouses.

5. Landlord Alleges that it's impossible to tell whose CRT was processed, but won't give you access to the building. 
If 5% of waste oil is spilled from a tank, no one can tell whose waste oil from which car was the oil that leaked (was "released"). Therefore, courts generally accept "apportionment" of the costs of cleanup according to how much oil each party put in the tank.  If your 2012 CRT delivery is 2% of the material delivered to CLRR between 2012 and 2016, you are named as PRP.
It is a fairly low bar to allege these things, and once they are alleged, you are automatically a "POTENTIALLY" a responsible party (PRP).

This theory of this case, so far, exculpts several other "potential" actors.

The hero watchdog, BAN E-Stewards.
The victim, the Landlord.
The silent Ohio EPA.
The silent state programs that encouraged you to pull the CRT out of the 2012 dump.
The manufacturers who paid for the recycling, and who recommended CLRR.
The R2 Certification body, which inspected and certified the CLRR after you ceased business there.

And there are well over 30M lbs of improperly managed, abandoned, e-Steward Certified operations CRT glass, from several other landlord bankruptcies, all shipped to Columbus Ohio, which are invisible or missing in the complaint.

If you did settle with these landlords, how many more times might you be held responsible before someone finally disposes of it? Mom and Pop recyclers are being asked to bail out state government, billion dollar commercial landlords, OEMs and city programs, Pump and Dump SEC violators - and they need someone to look out for us.


No comments: