The Trouble with "E-Waste" Stewardship: Part II

Part II:   How States Rushed Into Surplus Technology Policy

We've all got our stories about the ten most feared words in the English language:  "I work for the government, and I'm here to help."  I spent the 90s as a regulator, with a bigger budget and more educated staff than I have today.   And I spent the last decade working in a newly regulated field, as a small business entrepreneur.

Despite company problems with state environmental regulators, most in my business agree that regulators are doing an important job.  If they weren't there, it would be cowboys and Indians.  I would be afraid to invest in doing something better, because another company might seize a share of the market by doing things worse (more cheaply).

• If you don't take environmental justice and regulation seriously, I'm not the source for your policy.

• If you take environmental regulation too seriously, I'm surely not the source of your policy. 

 "And that's ok."

Improving on an incomplete design:   If there is an existing set of regulations about squares, we can imagine a better and improved policy about squares.  Our "squares regulation" policy may evolve, differentiating between sides, producers of sides, areas, lengths, completion, fill color, right angles... Imagine an entire cradle to grave, complete lifecycle analysis, encompassing regulation of the "square industry".

Along comes a diamond shape.  Then a rectangle.  No problem.  The regulators derive a new policy based on the precedents set by the square policy.  They may just add a "check box" to the form.  The triangle... it's an interesting discussion, draft policies go back and forth.  But it's nothing the regulatory and policy community cannot handle.

Along comes a kitten.

You can see where this is going.

Working and surplus and repairable surplus electronics have a lot of "moving parts", end markets, lifecycles and ingredients.  But whether they are one man's trash or another man's treasure, the question is when or whether they have been "discarded".  What stewards are trying to do is make it easier to discard without making it harder to donate, sell, or use... and they got in the way of trade between Trash Man and Treasure Man.   This is ultimately about regulation of wealth and value.

EPA's 2007 CRT rule was meant to evolve the existing RCRA definitions for hazardous waste, while admitting that reuse didn't allow them to fit into the previous amendments to govern "universal waste".   The first RCRA solid waste rules had to differentiate for hazardous wastes, and the hazardous rules were too onerous for the product wastes that were generated universally.   The EPA UWR re-simplified hazardous waste so that companies could collect it from millions of small businesses and homeowners (though some states simply allowed "household" to mean non-commercial, and the lamps are dumped with MSW back at RCRA Square One.

The newest version of the CRT Rule tries to take the square, modified for rectangles, and give it a three dimensional shape - a shape to govern not the status of the good (discarded), or the toxicity (TCLP), but adapted for another dimension - time.   Since the reuse CRT might be discarded SOMEDAY by someone else who bought it, in the future, records on the sale needed to be kept, or a loophole could result.


The update to the CRT Rule takes it even another dimension, collecting the same record on the sale of the same device from the broker, the generator, the buyer, etc.  Three sets of records are better than the one set, which EPA never had time to read, ask for, monitor, etc.

The new rules involve not just records of different parties to the transction of goods which will one day (we suppose) be discarded.

Meanwhile, regulators have been using derivatives of the toxic waste risk to take "waste" into new dimensions.  Including the past, or the original cradle of the product.   CRT Rule follows the "future waste" to the country it retires to, and ROHS follows it back to the maternity ward.

What could go wrong?

ROHS (elimination of lead from solder) creates incentives for tin mining operations, once closed in the islands of Indonesia (for environmental reasons) to increase in value and reopen... we mine the coral islands of today to make tomorrow's waste less toxic.

And manufacturers in nations like China and India, where new CRTs are still made, make draconian rules about the used CRTs that will one day become waste, in order to protect brand new manufacturers making CRTs (which will one day become waste).  And the mining companies of lead keep the used CRT cullet from being reused.  Everyone gets into the act.

And Stewardship will solve all of this, we are told, by taking the regulations BACK in time, to the producer, the OEM.   They will set their long time agendas against planned obsolescence aside, and will work in partnership with regulators to protect consumers from ... oh, counterfeit and grey market product, perhaps.

Where is Haliburton?

Ah, yes.  The connection to yesterday's post, about the evolution of landfills to Subtitle C landfills, to incinerators, and flow control.

They are now making shredders to eliminate the labor from hand disassembly.  Those shredders don't sell well in nations which need hand disassembly jobs, or where reuse and repair techs are so talented that they shanzhai used goods into near-new, even counterfeit condition.

What they propose is to put those developing nations into a box.

They will simplify the way we look at the emerging market.

They will just ban the trade, and get us back to Square One.

Back when the perfect shape was the enemy of the good.   There's a Plato Cave somewhere for regulators to find the principles they need to make the policy work.

Which will bring me back to the conclusion of this three part post.

KISS.

Keep It Simple, Stewards.

Don't start your policy around complex electronics made with coltan used for revolutionary internet cafes and surplus property added value planned obsolescence legal software emerging developing toxic market lifecycle jingo kitten problems.

Start with, say LAMPS.

EPA drafts new "Reuse Sale" Rules for CRTs

(Late additions in red)


When does "closing a loophole" crossover into "prosecuting the innocent"?  What are the legitimate reuse applications for CRT (Cathode Ray Tube) monitors, and when do concerns over their high disposal cost make it an EPA, rather than Department of Commerce, issue?

These are the questions that EPA's Newly Proposed CRT Export Rules are meant to resolve.

When the EPA CRT Rule was first issued in 2006, after a couple of years of investigation, it rightly allowed for the "determination" of waste to be made by the recycler, followed by EXPORT based on that determination.

At that time, despite false and fabricated claims that 80% of the CRTs exported wound up in primitive recycling operations like Guiyu, the commerce was mostly driven by three factors:

1. Original CRT Manufacturing Plants (same as warranty repair) were buying back CRT monitors with key functions
2. These refurbishing factories were selling the SKD CRTs to 3B3K nations - the 3 billion people who are neither richest or poorest, but who were gaining internet access at 10 times the rate of growth of OECD nations.
3. The only places the factories could get decent, newer CRTs (at the time) were the wealthy countries, which were rapidly turning them over to replace with flat screens.

The ubiquitous photo of the Chinese woman hammering the yoke off with a hammer raised peoples concerns, but in the end EPA allowed export for reuse on two conditions:

A)  One time notification
B)  Maintenance of 3 years of records showing actual reuse.

The problem in implementation was B.  I have kept meticulous records, and can't get anyone at EPA or Region I to show any interest in them.   They aren't getting them from any of my competitors, either.  This is how "reuse" becomes a loophole.

The EPA is now trying to close this loophole by creating an EPA-to-foreignEPA dialogue tracking the CRT to make sure that their sale is recorded and tracked.  They also want the same reports to be generated by everyone in the transaction - buyer, broker, and seller.   Excuse my lack of enthusiasm... but is the solution to never having reviewed the 3 years of records really to demand more records from more people?

The other issue is that EPA appears to be leaving out Department of Commerce and US Trade Offices out of the discussion.   Those entities know that when the Communist Party owns a factory making brand new CRTs, that they have a bias or incentive to ban USA Commerce.   Working CRTs which are sold for refurbishment are USA products, governed by Commerce.  The USA shouldn't set a precedent simply allowing a foreign nation to label our goods as a "waste" if they are not being discarded or speculatively accumulated.


See past post "Red Scare: Competent Authority Decision Trees" 


If China bans import of a computer which could be used to display a photo of the Dalai Lama, does violating that ban really trigger USA EPA enforcement?  These are "color orange" laws... a foreign nation can ban the color orange, but the USA should not draft a law which incorporates that into USA law by simple reference (making it illegal to export orange goods to a country banning the color orange).   There needs to be a clear environmental case against reuse.   Otherwise, another nation may use environmental laws to subterfuge WTO free trade agreements.  


China is already being investigated by WTO for doing this with rare earth metals.  If USA EPA makes it illegal to violate China's "environmental law" on trade in the commodity, then it doesn't matter if China loses the WTO case - you have now violated USA LAW by buying the "environmentally regulated" rare earth metals, which the USA made illegal based on the foreign nation's "competent authority" rule.  Reuse of CRTs is not an environmental crime, and second-hand goods are not "waste"... the Department of Commerce knows the distinction, and needs to be involved in this.  

But is CRT reuse still an important market?   That is a bigger "question mark" today than it was ten years ago.  The biggest difference is that foreign markets can now shrug the USA suppliers off... there are more displays in more places, new and used, than ever before.  If the USA wants to cut off its own nose, off with it, say the long-insulted CRT refurbishing factories.