Universal Waste and the Fallacy of Failure

 Had a long and frustrating conversation with a pal of mine who is presenting to a council on CERCLA - the law enacted to clean up pollution disasters. CERCLA, or Superfund, is backward looking. It is not a seat belt or an air bag, it's a law to clean up the highway accidents by assigning cleanup costs to those who drove the car or fueled the tank.

First, here is the photojournalist take of a large failed warehouse.

Landlord warehouse in Columbus OH, courtesy of Resource Recycling magazine.

The pal called to present his recent takeaway from Closed Loop Refining and Recovery failure, an abandonment of CRTs and CRT glass at facilities CLRR rented in Arizona and Ohio. That highway accident was perhaps the biggest blemish on Electronics Recycling Programs across the country. Or perhaps, it's not. But owing to the landlord's use of CERCLA (Superfund Law) language to go after clients of the CRT Recycling company, CLRR certainly made the news, and elevated what was not the largest of CRT glass markets to become emblematic of the CRT recycling industry.

Cars driving the speed limit on the highway don't make the news. CRT recyclers who continually processed CRT glass, under the conditions of the EPA CRT Rule, were able to move far more material than CLRR - because they were moving it.

CLRR was driving twice the speed limit day after day by the end of the third quarter 2013. And by speed limit, I'm referring to limits on the conditional exemption to hazardous waste law - rules against speculative accumulation, and processing deadlines to produce "furnace ready cullet".

The consulting pal said that the root cause of the failures was the EPA CRT Rule - which I helped write in 1999. He said that had the EPA instead classified the CRTs as "Universal (Hazardous) Waste", that CLRR would not have happened.

This thinking is typical of CERCLA, which only focuses on disasters. People can make up whatever they want about coulda-shoulda-woulda, and the disaster appears to be the evidence that if "mistakes were made", that the wording of the laws in place that didn't prevent this accident must be to blame.

This is like a call to lower the highway speed limit from 70 to 50 MPH, when CLRR was driving 140. The fact is that if any regulator, certifying body, landlord doubling rented space, or supplier doing normal due diligence on CLRR had examined the requirements of the existing CRT Rule, and mass balance records from CLRR, they could only draw one conclusion by the end of 2013. I know, because I did the diligence, and cut off shipments to CLRR in 2013 until and unless the company corrected the expired and exceeded requirements of my diligence.  And I cut them off despite them lowering their fees to my company, and despite it being the beginning of the worst year in the history of my company - the Vermont Opt Out Plan settlement of 2014.

From the 2016 photo, one sees that nothing in view has been processed at all. That would help explain why CLRR had no outgoing shipments to satisfy conditions of the CRT Rule. Not visible is CRT cullet that had been run through an auto shredder, which cannot produce "Furnace Ready Cullet".  In 2012 and 2013, I'd appealed to my friend to help me get an ISRI definition of furnace ready cullet.  Industry and EPA issued no such guidance, which would perhaps have helped Ohio and Arizona DEPs monitor the CLRR continued expansion in 2014, happening in a public comment period right under their noses.

CERCLA is about apportioning blame, not about analysis of whether a CRT Rule or Universal Waste Rule would have avoided the accident.  This a slippery slope towards the failure fallacy. You direct all of your attention at the outlier, the one (or minority of several) bad outcomes and design policy in hindsight directed at preventing that bad outcome.  If a patient dies in surgery, ban the surgery, and no patients in the future will die in surgery.

What did the EPA CRT Rule say? How did regulators fail to prevent the anecdotal bad outcomes? How prevalent were the bad outcomes? What went well, and how would Universal Waste Rule (UWR) have affected the good outcomes?

My company did do business with CLRR - a minority percentage of our CRT waste was delivered there at the beginning in 2011. We terminated shipments there in 4Q 2013, after the company failed our speculative accumulation audit. Under the current EPA CRT Rule (which allowed states like Connecticut and California to classify CRTs as UWR at the state level, but did not require it nationally), CLRR had to process the CRT televisions and monitors pictured within the first year to "furnace ready cullet", and then had another 365 days to recycle or sell that industrial mineral.

1. This already created a higher bar for recycled cullet than primary mined industrial minerals - leaded silicates like anglesite which are commercially mined around the world (at some of the most hazardous and polluted sites on earth, such as the Kabwe lead-zinc mine in Zambia).  You can mine virgin leaded silicate and store it for years, selling it at the highest value, like operating a lower-yield oil pump only when the price of oil hits a high per barrel. Recyclers couldn't do that under the existing EPA CRT Rule or the material became de facto hazardous (not lower regulated universal) waste.

2. Whether the CRTs in the photo were classified as UWR at the beginning of the facility production in 2011, or became Hazardous Waste in 2013 when two years had passed and speculative accumulation had definitely occurred (there was no investment in the promised furnace), the facility was operating illegally in March of 2014. That's under either the current rule or WEH's suggested change. It's illegal at that point, and our company could see that without even a photo or a visit - CLRR admitted to us when we asked for "mass balance" records of shipments out of the facility that they instead intended to rent a second warehouse to reset the speculative accumulation calendar on the same 2011 CRTs.

3. So I told my buddy that if regulators don't enforce a law (the EPA CRT Rule), that he cannot assume they would have enforced another law (the EPA UWR).  That is like trying to reduce speeding on a highway with zero cops and zero speeding tickets.  If a driver travels every day from January 2014 to March 2016 at 140 MPH - and you never see a speed trap or police lights or issue a ticket, lowering the speed limit from 70 to 50 isn't a serious solution.  It penalizes all the other recyclers, and covers up the OEM, regulator, landlord and certification body's role during the March 2014 lease doubling the size of CLRR's operations when the 2012-14 tonnage already crossed the illegal lines under 40 CFR 261, and EPA's CRT Rule.

What did the current EPA Rule allow which would have been interfered with by the UWR?

Part of the "failure fallacy" (aka Monday morning quarterbacking - if we had never thrown a pass, our team would not have thrown yesterday's interception) is that if fails to count the good things that did occur. CRTs were reused and recycled, and there was always a risk of collateral damage to the legitimate recyclers if the hazardous waste classification of CRTs occurred earlier (2011 in the case of Closed Loop, but earlier still - Massachusetts version of the existing CRT Rule was implemented in 2000, EPA's in 2006).

Damage to Reuse, Refurbishment and Repair. 

From the mid 1990s to around 2010, there was a thriving reuse and refurbishment market for CRT monitors and TVs. When 17" CRT monitor sales became the majority of sales in the mid 1990s, they were replacing 14" and 15" CRT monitors. It was a mistake to think that these were not "elective upgrades", that all of the replaced monitors needed a "functionality test", The contract manufacturers knew that the CRT guns worked 22-25 years, had cost $110 each 4 years earlier, and could be resold to rapidly emerging markets - big cities like Cairo, Dubai, Jakarta - as remanufactured TV-monitor combo units. Had the CRT, by mere fact of being a leaded glass apparatus electively upgraded by the first user, been classified as "Universal (hazardous) Waste", as the pal now recommends in hindsight, millions and millions of people would have gone without the 15" reuse monitors, or had to pay $110 more per unit for newly mined and processed CRTs (at extremely high environmental costs, starting with leaded silicate ore mined from Kabwe). There's no other way around it, either poor people were allowed to use secondhand monitors good for another 17-21 years, or they got brand new ones manufactured at higher environmental cost, or they went without.

Damage to True Recycling Smelter purchase orders.

Since at least the 1970s, CRT "virgin" production factories (Corning, Thompson, Trinitron, etc) were producing "factory seconds" or rejected tubes, fallout from accidental breakage or poor functionality. The rejected leaded silicate tubes were taken back by the source of the virgin leaded silicate (anglesite) that those CRT furnace factories had delivered from mines and primary smelters. This happens not just with CRTs by the way, "factory seconds" or pre-consumer waste is the origin of most recycling companies, from paper to plastic to metals.

As a true anecdote, Sony CRT factories in the USA sent their pre-consumer waste (I don't know the percentage, but let's say 10% for easy math's sake) to the copper mining company ASARCO. ASARCO primarily used the secondary CRT glass as a fluxing agent, to replace mined leaded silicate necessary to operate primary copper smelters. Some might consider it "downcycling" because the leaded silicate winds up in slag at the end of the day, but it replaced virgin leaded silicate (like Kabwe mining in Zambia). 

The new convert to UWR is focused on Closed Loop RR in Columbus Ohio and Phoenix AZ because those piles are still there. But that's part of the failure or "dead horse" fallacy. If you find a dead horse in a field, you can hypothesize that horses cannot run or gallop, otherwise why would this dead horse occur? You don't see the horses that ran away, you are focused on the failure anecdote.

- Korea Zinc (and lead)

- Glencore (formerly Noranda)

- Gravita (India, true downstream of "glass to glass" shipped to Videocon)

- Samsung Corning furnace in Klang, Malaysia

- Camacho in Spain

- Penoles, Torreon, Mexico

- Great Southern Copper, Sonora, Mexico

After the decline of the reuse markets - contract re-manufacturing in Asia and direct-to-reuse sales in Africa and South America - the CRT glass end markets listed above were in a position to greatly reduce the price they paid per ton for CRT leaded cullet.

Used CRT desktop monitors being sustainably remanufactured at the original contract manufacturer, 2006

The new convert to UWR also suggested that I was in favor of the EPA CRT Rule because it allowed me to export to factories like the sustainable remanufacturing plants in these photos - classifying them as "universal waste" would put that at risk. I responded that he and I are not at the center of this universe - that I was defending people I admire, engineers and factory workers overseas, who produced far more affordable electronics through reuse at a far more environmentally sustainable way than he and I had done, buying monitors from virgin mining, refining, and manufacturing. To eliminate those jobs to make CHEWMG's job easier seems to me morally wrong. Our sense of liability is too precious.

Where the UWR buddy is definitely onto something is where he criticizes state and national Regulators and as importantly Original Equipment Manufacturers (OEMs) paying the cost of recycling in EPR (extended producer RESPONSIBILY) programs. I capitalize "Responsibility" because the intent of those laws wasn't simply to tax the OEMs for the cost of the CRT recycling, but to leverage their knowledge and position in raw material markets that fed their own factories.

Instead, the OEMs invented a system of "arms length" middleman organizations (MITS, MRM) to effectively distance themselves from the riskier lower-cost venues - like Eco International (MRM) and Closed Loop RR.  MITS was the more wreckless of the two, as Eco International cleaned up its own mess - but via landfill, effectively sabotaging companies (like mine, and ERI, and URT) which were using higher-cost methods to effectively produce FURNACE READY CULLET.

He knows that I appealed to ISRI and to EPA to strengthen the definitions of Furnace Ready Cullet, and blogged about the need for that definition, and instructions to state officials, before CLRR, Eco International, or Illinois landfills were found to be operating fraudulent "recycling" operations.

"Furnace ready cullet", like speculative accumulation and indoor storage, was the commodity name for processed CRTs. To process CRT glass, it can be separated by panel (barium glass) and funnel (leaded glass) and frit (most leaded, the seam that joins the panel and funnel)... the leaded has a much lower melting point than the barium panel glass. The two can be mixed if used as a fluxing agent at a very high temperature furnace, such as a primary copper smelter... but in that case they need to be sized.

The photo at the top of the blog was taken in 2016 or 2017, and shows TVs and monitors which had certainly not been processed at all. Since the Columbus plant opened in 2012, and went through public hearings for an expansion in 2014, Ohio DEP was clearly not enforcing the EPA CRT Rule. 

To repeat the speeding ticket analogy again, imagine that there is a speed limit of 70 miles per hour, and certain recyclers are racing down the road at 140 miles an hour. UWR convert seems to think the solution is to lower the speed limit to 50 miles per hour.  I think that just slows down the safe recyclers, and we need law enforcement of the 70 MPH limit before we try to solve speeding by changing the signs.

So at the end of the day, does a small percentage of "failure" negate the risk of stifling success? Should secondary material - leaded glass from CRT tubes - be regulated more than primary, mined material?

The CERCLA policy group should know what bankrupted CERCLA. Abandoned virgin mining piles. Fourteen of the fifteen largest Superfund sites are hard rock mines - the true alternative to recycling cullet. The successful industrial mineral recyclers who didn't fail moved dozens of more times the volume that CLRR abandoned... we just see the CLRR as a big amount because the car accident is still visible, year after year. The recyclers who followed the speculative accumulation and furnace ready cullet rules, or who repurposed and reused CRTs to create sustainable jobs and product for emerging markets, are competing with a mining industry with no speed limits.

Mined leaded cullet, like anglesite, can sit outdoors for decades, and remains a commodity, with no speed limit.  Mines like Kabwe are 14 out of the 15 largest Superfund/CERCLA sites in America. Lowering the speed limit of true sustainable recyclers is a stupid answer.