EPA Says: Commodity or Waste? E-waste Regulator Checklist

Last February (2010) we posted a "State E-waste Regulator Compliance Primer checklist format" - for compliance with EPA "commodity exemption" conditions.  I expected some comments and feedback, but did not get much, and the checklist has not had as many visitors as other posts.   Since many state regulators are in a new position of regulating electronic scrap, electronics reuse, and electronics waste, I thought I should republish it, and ask again for comment.

Burkina Faso Attorney General Got A+

The EPA specifically described their decision NOT to add Cathode Ray Tubes (CRTs) to the Universal Waste Rule list in 2006.    The agency described the testimony from the states which advocated that "e-waste" be treated as a universal hazardous waste, and then described how this would not only have unintended consequences in the commodity market, but would impose impossible conditions on true commodities.  Out of one million discarded fluorescent lamps, how many will be repaired?  ZERO.  The same number of CRTs may result in several hundred thousand reuse and repair jobs, resulting in meaningless data collected in manifests which will never balance unless reuse is sacrificed.

EPA, in its wisdom, recognized that display devices have the fastest growing demand in the world, and that the reuse value was not only good for the recycling economy - it was essential for affordable internet, and the best end use in the economy.  Repair, reuse and refurbishment are explicitly legal in the Basel Convention, and highest in the solid waste hierarchy.  Ambulances don't drop off patients at the morgue, and most people in wealthy nations are not discarding "end of life" product when they buy a new large flat screen.

Under RCRA 40 CFR, CRTs are simply not classified like (non-reusable) lamps. 

§ 261.4   Exclusions.

(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:

***

(22) Used cathode ray tubes (CRTs)

(i) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes within the United States unless they are disposed, or unless they are speculatively accumulated as defined in §261.1(c)(8) by CRT collectors or glass processors.

(ii) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes when exported for recycling provided that they meet the requirements of §261.40.

(iii) Used, broken CRTs as defined in §260.10 of this chapter are not solid wastes provided that they meet the requirements of §261.39.

(iv) Glass removed from CRTs is not a solid waste provided that it meets the requirements of §261.39(c).

I have a longer commentary on the EPA CRT Rule and how it evolved.   For now, it's important to recognize the risks of losing the recycling commodity, non-waste exemption.   Local solid waste districts don't want recycled materials to be scavenged, and rely on the Courts ruling that recycling is not "disposal" to enforce those laws.  When someone sends their hard drive to Good Point Recycling for scrubbing or disassembly, they have not given up their rights to the data, and we insist on a chain of custody which does not exist with "discards".

In my own home state of Vermont, the authority to regulate wastes defines them as follows (Vermont VSA 10 Code 6602, Definitions):

(13) "Waste" means a material that is discarded or is being accumulated, stored, or physically, chemically or biologically treated prior to being discarded or has served its original intended use and is normally discarded or is a manufacturing or mining by-product and is normally discarded.

Speculative accumulation rules, and EPA's 3 years of record keeping demonstrating actual reuse, prevent a company from merely accumulating things and not really reusing them, or exporting them for actual disposal. TV repair and warranty repair shops will otherwise need to be certified as waste facilities, which is part of the "war on reuse" or planned obsolescence in hindsight, unintended consequence, I've been writing about since 2006.  We want to compete against sloppy exporters who apparently ship 80% waste, and if we can guarantee that even the 5% which is electively upgraded is properly recycled, Vermont won't win friends overseas by shutting us down.

For now, I will repost the February 2010 e-waste guidance document in the hope that state and federal regulators see value in it, or make comments on revisions we need to make.  Putting a "universal hazardous waste" label on a working or repairable monitor will absolutely guarantee that any shipment of the monitor will be subject to seizure.  There are better ways to eliminate Toxics Along for the Ride.

Ask for PROOF of REUSE.   A good reuse company warranties its products and gets reports and QA/QC documentation.  If the company is keeping these and proving that nothing is being released into the environment, squeezing them to test the last capacitor may turn into a "war on internet" in the emerging world, where people earning $3K per year are getting online at 10 times the rate of growth of the USA.

And remember, if we give up and send all this material to a good old American shredder, here is where the metal winds up to be sorted.  My bet is that more of the capacitors will wind up in fluff, or ZORBA, or metal bales than would ever be discarded by a "semiknockdown" factory.

Published Final EPA RCRA CRT RULE

IV. Rationale for This Rule and Response to Comments

    A. Used, Intact CRTs Sent for Recycling
    B. Used, Broken CRTs Sent for Recycling
    C. Used CRT Processing

    D. Exports and Imports
    E. Universal Waste
    F. Definitions
    G. Disposal

    H. Enforcement

... intro

"E. Universal Waste 

" In our June 12, 2002 notice, the Agency proposed a conditional exclusion from the definition of solid waste for used CRTs and CRT glass being recycled. However, we also solicited comment on the alternative approach of adding these materials to the universal waste rule. In particular, we requested comment on whether various universal waste requirements would be appropriate or burdensome for glass processors, or collectors who send used CRTs or CRT glass to these processors. The universal waste requirements in question were employee training, notification of universal waste management activities, and tracking of shipments sent and received. "

"In our June 12, 2002 notice, the Agency proposed a conditional exclusion from the definition of solid waste for used CRTs and CRT glass being recycled. However, we also solicited comment on the alternative approach of adding these materials to the universal waste rule. In particular, we requested comment on whether various universal waste requirements would be appropriate or burdensome for glass processors, or collectors who send used CRTs or CRT glass to these processors. The universal waste requirements in question were employee training, notification of universal waste management activities, and tracking of shipments sent and received." 

"After evaluating all comments, the Agency has decided to retain the proposed conditional exclusion from the definition of solid waste for used CRTs and processed CRT glass, instead of adding these materials to the universal waste rule.

 "

Significant comments, our responses, and the rationale for the final rule are explained below..."

(The official document goes paragraph by paragraph, dismissing each argument for rregulating used televisions and computer monitors as UWR under RCRA).

This fed ruling came after several states issued draft UWR based on the understanding the federal rule was HW and therefore the state could issue UWR conditions to be outside of HW (the normal UWR authority) However, when THIS rule was published, it explicitly stated conditions under which CRT as NOT waste and that therefore UWR.

Therefore, legally, the old basis for issuing UWR restrictions on an item, presuming it was on a EPA HW list, cannot legally be applied until the items are handled in a way which violates the federal exclusions (based on commodity status) on the waste list. 

Therefore, legally, the old basis for issuing UWR restrictions on an item, presuming it was on a EPA HW list, do not apply until the items are handled in a way which violates the federal exclusions (based on commodity status) on the waste list.