Is E-Waste Hazardous or Universal Waste? Not Yet...

Following last weekend's surreal blogging into the mind of Jesus, it's time to focus on recycling regulations and law.  EPA is about to tinker with RCRA definitions of used electronics, purportedly to close the "loophole" of calling something reused a "commodity".  It appears EPA wants to follow China's lead, and declare reused metals "wastes".   This will help complete the snatch of authority from Department of Commerce by the Environmental Protection Agency, once again leaving horrific mining of raw virgin ores "commodity" and relatively clean scrap metals will be "hazardous wastes."

I've written previously about the "rights" of states to form rules which are stricter than federal rules - so long as the federal rule agrees that the substance is in fact "discarded".  But the state environmental agency cannot charge into your house to find a "working" unit, and whether something "works" is a silly test if the non-working P4 is worth much more than the working P2.

What if a state wants to regulate an item which is excluded from "solid waste" as a "universal waste"?  Can an item which meets commodity exclusion rules still be hazardous?  Can it be universal, and hazardous, but not a waste?  Earlier this year, we looked at the "chicken or egg" problems which arose in one state which tried to make e-waste "universal waste" without classifying reuse as waste.

EPA and "universal waste" is something I'm very familiar with, going back to my days as recycling director for the Massachusetts DEP Division of Solid Waste (and later Consumer Programs division director).   EPA ultimately sided with Mass. DEP in deciding that scrap metals should not be treated much differently from mined ores.  If the ores were hazardous, then so should the scrap, but when the ores were not treated as hazardous, making scrap "hazardous" merely because it was secondary material was a mistake we didn't make.  Why another refresher course on universal waste and RCRA?

EPA has just proposed major changes to this, which I'll write about later.  

For now, since so many are confused about what RCRA says in the first place, is a refresher course in USA waste vs. commodity law.  The current USA law treats recycled scrap as the equivalent of mined ore.  That was smart.  The perfect should not be the enemy of the good, and if recycled content is the only alternative to virgin content, and the production of virgin content is more toxic than recycling, recycling is the good.  14/15 largest Superfund sites (which bankrupted Superfund more than a decade ago) are "hard-rock" metals mines.   RCRA as written saw that the worst recycling is better than the best mining.  Thanks to "Recycling Watchdogs", that is about to change.  But for now, here is the way recycling is governed by federal law:

Related Posts

• Are CRTs Regulated?  An E-Waste Compliance Primer
• Toe Tags - We Agree - Now Let's Communicate
• "Not Discarded" Label - Made in Vermont
• Short Factual Posts on Haz Waste and "E-Waste"

First, here is the language in § 261.4  of RCRA

§ 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).

Some states are still focused on the 1990s effort to put "e-waste" under jurisdiction of the  Universal Waste Rule. Why did EPA reject the UWR in their 2006 Federal CRT Rule?

The precedent-setting case on "waste" vs. commodities was a suit brought by the American Mining Congress against EPA.  When a specialized smelter - say, an aluminum smelter - processes hard rock from mining, the leftover molten rock ("slag") may still be rich in other metals - like copper, zinc or lead.   Specialty smelters know the concentrations of bi-product slag, and began to trade their by-products.

EPA initially classified six smelting "wastes" from primary lead, zinc, aluminum and ferrous alloy industries as "hazardous wastes".  The mining industry objected, saying that the mineral by-product shouldn't be regulated differently than mined ore, and that classifying something differently because it was "waste" was not going to be good for recycling, or for the environment.  The court agreed with the American Mining Congress that five of the six residues were chemically similar to mined ores.  EPA took the court's lesson to heart, and tried in successive rulings not to treat recycled products more restrictively than mined products.

Lead ore is a commodity.  The more lead, the better

The legal basis to govern an item as Universal Waste begins with finding the item on EPA's federal list of hazardous wastes.  Electronics are not only NOT on the list, they are, above, on EPA's list of non-wastes.

The Universal Waste Rule names batteries, pesticides, mercury-containing equpment, and bulbs as hazardous waste materials, and establishes conditions for handling these named hazardous wastes in a way which could conditionally streamline the processs.    EPA authorized states to use the Universal Waste Rule to streamline and simplify the collection of problem wastes which are generated "universally" (not at a few point-source emission locations) if certain care in handling was documented.

Why didn't EPA put electronics onto the Universal Waste List?  EPA considered it, and refused.

The first issue:   The purpose of the UWR was to make recycling simpler than it would otherwise be, under RCRA, for a business to collect and manage universally generated wastes.   UWR resolved the unintended consequence created by the household exclusion, which is that households could throw away their hazardous wastes legally, but that if a recycling company tried to do something good and commercially collected all the household waste, that company (a non-household) turned itself into a commercial point-source target.  "No good deed goes unpunished" was what EPA wanted to avoid.  Under the UWR, states could establish rules so that a "good samaritan" or recycler could collect "household exempt" material without becoming a target, on the condition that they followed certain (UW) rules.   All in all, it was a bargain to reduce regulations which were in place if the state didn't intervene and, through UWR, make it easier to do the right thing.

However, the steps which streamlined recycling for batteries and lamps did NOT work for CRTs.  EPA explained in 2006 that the CRTs and CRT glass are even more clearly a commodity than smelter bi-products in the American Mining Congress case.

Bulb Repair Ain't a Word

Out of one million hg-bearing UWR lamps, how many of those lamps are repaired?  The answer is ZERO.  No one repairs and resells lamps, thermostats, or batteries!   It just isn't going to happen.  Therefore, when a collector consolidates a number of lamps and sets up a tracking sheet, and a recycler collects from lots of consolidators and lots of tracking sheets, the documentation required is right to assume that the collected materials are waste, and documenting what can happen to them from there, while complexly regulated, is much easier to track than donations, resale, or demanufacturing into non-hazardous components.  Tracking the lamps will assist the regulator in finding mis-managed product.   Keeping a manifest is useful for mass-balance, for accounting for all the products on the manifest.  If I collect a million mercury light bulbs, at the end of the year, I should be able to account for about a million mercury light bulbs.

Most computers, CRTs and LCDs are replaced because of a voluntary upgrade, or a lost power supply.  This creates a huge opportunity for the reuse and refurbishing markets.  A display unit represents about 50% of the cost of a computer, and the CRT represents 90% of the cost of a television or monitor.  And reuse of these items is superior in the solid waste hierarchy.  Environmental protection, properly administered, does not destroy reuse value for the sake of red tape.

Therefore, if a recycler repairs and reuses some of the documented items collected under "universal waste" manifests, you can expect one result:  false positives for mismanaged waste.  That is one reason why EPA, in a 2007 ruling, explicitly explains why the CRTs are NOT appropriately covered by the UWR.

Back to Life! Frankenstein, The Modern Prometheus

Under the legal precedent, EPA sets an even more difficult hurdle for UWR management.  By declaring the used electronics, and even processed e-scrap, to be commodity,  EPA not only removes management from hazardous lists - it set the conditions under which EPA does not even consider the CRTs etc. to be WASTE.  Imagine that a state has a UWR program, and adds your wallet onto the UWR list.  Can the state accuse you of mismanaging your wallet if you carry a wallet without a manifest?  Not unless you discard the wallet in the trash.  Under USA laws, once you discard an item in the trash, you lose privacy rights to it.   But if recyclers follow EPA guidelines under the 2007 EPA CRT Rule, EPA does not consider the chain of "commodity" custody to be broken... a non-waste can be hazardous, and can be universal, but cannot be universal hazardous waste.

This mean that legally, for a state to add monitors or TVs to the UWR, they must implement the rules with a different legal basis than they have followed for lamps and batteries.  For lamps and batteries, the state DEP can simply refer to EPA RCRA, which considers these waste discards, and then use the state's authority to allow simplified management under UWR.   For CRTs, however, the state regulator does set conditions of exclusion if a recycler is already excluded by following the CRT Rule, which is NOT a rule of exclusion from "hazardous" - it is a rule of exclusion from being a waste to begin with.  That means that the state needs to define "discarding"... in other words, to set standards for commodity trading which are so difficult that the collector and recycler wind up with material that is the state's definition of "discard".  Now the state can say the item is discarded, and a waste, and then presumably establish UWR policy.

My question is this:  If states like Massachusetts, which are following the current federal rule, are doing a good job and diverting lots of material, why does a state need to go against the American Mining Congress precedent and define recyclables as waste?  It seems to be using the UWR for the opposite of which UWR was intended - to make it easier to recycle something.

The Federal Government, in its 2007 CRT Rule, specifically laid out the grounds for reducing the regulations on CRTs.  While simplifying the recycling is also the goal as UWR, the feds did it in a very distinctly different way.  In a nutshell, the federal government said that for CRTs to be managed as a hazardous waste, they had to appear to be a waste.  That means putting them outside (rules about walls and cover) is a no-no.  Disposing of them in the landfill, big no-no.  There are even rules on "speculative accumulation".  But the basis for the federal rule was not that CRTs are "universal", but that a significant portion of them are not even "waste".

Has the EPA rule resulted in worse management for CRTs than for UWR items like lamps?  I've seen no documentation that a state like Massachusetts, which follows the CRT Rule, has worse management than Connecticut, which seeks to regulate e-waste with the Universal Waste Rule.

"Nothing contributes so much to tranquillize the mind as a steady purpose..."

- Mary Shelley, Frankenstein

 I'm drafting a document which explicitly lays out the Federal ruling for the point of "generation" of waste.  Feds to not consider laptop of unknown (working, parts, recycling) condition, sent to an expert, to be waste generation.   First, I'll close today's post with actual references to federal law.

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.