Mr. Robert Tonetti
Office of Solid Waste (5304W)
USEPA
Washington, DC 20460
Fax: 703 308-7905
November 13, 2003
Dear Mr. Robert Tonetti:
Please find the undersigned organization's comments and attached suggested amendments (In Track Changes) with regards to the Draft Plug-Into Recycling criteria. Thank you for allowing us this opportunity and for accommodating our concerns.
We are disturbed that EPA continues to foster policies that are in contradiction with global norms and US obligations (under current OECD) agreements with respect to export criteria. Nothing short of full compliance with the OECD and Basel obligations is acceptable with respect to controls on transboundary movements of hazardous waste. The US cannot pretend that its trade policies exist in a vacuum. For example, while the criteria prescribe that all laws of importing countries must be respected, it fails to note that no country that is a Party to the Basel Convention but not a member state to the OECD can legally accept hazardous waste from the United States absent a special bilateral agreement. This would apply to China, Philippines, Malaysia, Vietnam, Eastern European countries, all of Latin America excepting Mexico, etc. Most countries of the world, utilize the Basel Convention definitions and therefore they consider electronic waste to be hazardous and must abide by the Convention's obligation not to trade with non-parties.
Further, we wish to strongly oppose the stated intent of "refurbishment" as a rationale to allow export. Refurbishment and repair (as opposed to direct re-use) are now becoming the stated pretext of choice for many unscrupulous operators that wish to continue export-as-usual to any destination. Enforcement, including determinations of whether or not materials are really refurbished, or how much waste residues remain in the receiving country, cannot be accomplished extraterritorially and it will be very easy to simply make this claim without abiding by it. Further all refurbishment will produce some waste that is left in the receiving territory. Thus, refurbishment will likely involve the transboundary movement of hazardous waste from the United States to a non-OECD country and thus is not acceptable both from the importing state (Basel Obligations) and from the United States (OECD obligations under C(86)64(final)). Unless e-waste products are demonstrably in working order and certified as such then their export would violate Decision II/12 of the Basel Convention, the Basel obligation on Parties not to trade in hazardous waste with non-Parties (USA) as well as the letter of the OECD decision of 1986. Even if these legal restraints were not in place, a guideline of this kind can well prescribe more precautionary measures than required under international law.
Further, it is inappropriate to ever allow the dumping of hazardous electronic waste in municipal or solid waste facilities such as landfills or incinerators. This avenue must be closed completely and the Plug-In criteria should make this very clear.
It is likewise inappropriate for the EPA to look the other way on the issue of use of prison labor, both from the serious problems entailed from an environmental justice standpoint, as well as from a competitive standpoint. This outlet for hazardous electronic waste must be closed along with export, and use of municipal waste facilities.
It is vital that the most serious occupational issues with respect to recycling of electronics are highlighted herein. These include addressing exposure to lead, cadmium, mercury, beryllium, phosphor compounds, brominated flame retardant and other halogenated material, particularly from direct handling, shredding and heating operations.
Finally, we have heard that there is a wish by some to shift from use of the term e-waste to e-scrap. While it is understandable that some might be unhappy with the negative connotations of "waste" as it has in the past equated to "something of no value", it is nevertheless essential to understand also that waste is a legal term in international and domestic law all over the world. Too often we have found that those that wish to use terms other than "waste", are seeking a backdoor avenue toward deregulation from waste legislation. It would be too easy to confuse regulators and customs officials to read manifests that say "scrap" and leave them wondering if this term is somehow different than waste in legal meaning. Thus we would strongly advise continuing to refer to the discarded material as "waste" or "e-waste.
Thank you for incorporating our concerns into your final guidelines. We stand ready to respond to any questions you might have and to continue working to approve guidelines that are rigorous and able to control the massive electronic waste recycling abuses prevalent today.
Sincerely yours,
Jim Puckett, Basel Action Network, and on behalf of the following other organizations,
Ted Smith, Silicon Valley Toxics Coalition
David Wood, Grass Roots Recycling Network
Alexandra McPherson, Clean Production Action
Neil Seldman, Institute for Local Self-Reliance
Michael Bender, Mercury Policy Project
Robin Schneider, Texas Campaign for the Environment,
Jon Hinck, Natural Resource Council of Maine,
Suellen Mele, Washington Citizens for Resource Conservation
Marie-Lou Roux, Habitat Council, South Africa
Dr. Helen N. Mendoza, TANGGOL KALIKASAN, Philippines
Mamta Khanna, Center for Environmental Health (California)
Please find the BAN et al comments and suggestions herein.
PLUG-IN to e-CYCLING
CRITERIA for MATERIALS MANAGEMENT
Draft: 11/7/03
Purpose
As part of an effort by EPA to develop national guidelines for e-waste management, the Agency has drafted the following criteria for use in the Plug-In to e-Cycling Campaign. The Campaign and its pilots will be used by the Agency to “test” these criteria and allow the Agency to have real world information about what guidelines are needed to most effectively protect human health and the environment, while at the same time enabling practicable programs for e-waste management.
Vital to the success of the Campaign, as well as any program for improved management of e-waste, is the availability of adequate markets for reuse and recycling. Thus, these guidelines are not intended to be a barrier to delivering reusable equipment or industrial feedstock materials to legitimate markets, wherever they exist. However, the criteria are intended to assist Plug-In partners in assuring that hazardous public health and environmental conditions do not result from processing, recycling or disposal of e-waste for which they are responsible.
Applicability of Criteria
The following criteria are not applicable to e-waste collection activities, nor to Plug-In partners who are solely engaged in collection activities. Rather, the criteria are applicable to Plug-In partners who engage in any stage of e-waste reuse, refurbishment, recycling or disposal that follows the collection activity, including those partners who contract with others for the performance of these services. In this latter case, the Plug-In partner will need to take appropriate due diligence measures to ensure that downstream facilities and operations use practices that are consistent with these criteria.
The criteria are applicable to all reuse, refurbishment, recycling and disposal activities by any Plug-In partner; i.e., not just those activities undertaken as part of a Plug-In to e-Cycling pilot.
Need for Due Diligence
The criteria require considerable due diligence efforts on the part of the Plug-In partner regarding the handling and disposition of electronics. However, the criteria do not require the same level of due diligence under all circumstances. Rather, the level of due diligence required is commensurate with the risk of the activities involved, as well as to assure fulfillment of certain waste and material management goals under Plug-In. For example, the criteria require due diligence to provide assurance that incineration and landfill of any form of e-waste is both minimized and safe; whereas, the due diligence procedures for reuse, refurbishment and recycling focus on only those used electronics that contain or consist of materials that, if mismanaged, are most likely to present hazards to human health or the environment. Thus, reuse is the most favored management option, followed by recycling and, least desirable, landfilling or incineration.
Criteria 1-4 below pertain to all electronic products for which Plug-In partners have responsibility. Among other things, criteria 1-4 require due diligence regarding any electronic products or components that are sent to incineration or land disposal. However, criterion 5, regarding reuse and refurbishment, and criterion 6, regarding recycling, only pertain to certain “designated materials,” as defined in the relevant footnote. Designated materials are those that the Agency believes are worthy of due diligence on the part of the Plug-In partner in the case of reuse/refurbishment and recovery operations due to the fact that they contain or consist of materials that, if mismanaged, may present hazards to human health or the environment.
Thus, no criteria beyond those of 1-4 apply to the reuse, refurbishment or recycling of used electronics that, either in processed or unprocessed form, do not contain or consist of designated materials. The Agency encourages the processing (including sorting) of used electronics to enhance the value of output streams, often resulting in the generation of multiple commodity streams that do not contain or consist of designated materials, thus avoiding the need for further due diligence procedures.
Because equipment for reuse often contains designated materials, criterion 5 will be applicable to many reuse markets. However, to maximize reuse, the requirements of criterion 5 are relatively simple--the need for retention of proper business records to document legitimate reuse markets. The only other criterion having relevance to reuse is criterion 4(a), which requires that export of reusable equipment be in conformance with the laws of importing and transit countries. Criteria 1-5 are applicable to equipment for refurbishment.
CRITERIA for MATERIALS MANAGEMENT
All electronics
1. Processing of all electronic products must utilize reuse, refurbishment and recycling techniques to the full extent practicable, i.e., recognizing economic feasibility, in order to minimize incineration and land disposal. In any case, designated materials must not be allowed to enter solid waste landfills or incinerators. The Plug-In partner must maintain records demonstrating that incineration and land disposal are minimized.
2. Where incineration or land disposal of non-designated materials is unavoidable, the Plug-In partner must assure that these wastes (including those generated at refurbishment and recycling operations, smelters, etc.) are managed safely at facilities that are fully licensed for that purpose by all appropriate governing authorities. The Plug-In partner must have written evidence that demonstrates this. In addition, such facilities must also have an environmental management system in place, as is described in criterion 6(b) below for certain recycling facilities.
3. The Plug-In partner must comply with all applicable federal and state requirements pertaining to the transportation, processing and management of electronic products and components.
3 (bis) The Plug-In partner will not utilize prison labor for reasons of disproportionately exposing prison populations to hazardous wastes and materials and to deter unfair competition that could undermine the development of free-market recycling infrastructure.
4. In the case of export of any electronic products and components, the Plug-In partner must:
a. Comply with any applicable requirements of the U.S., as well as applicable requirements of importing and transit countries. M ost countries are either parties to the OECD or Basel Convention accords and will abide by the obligations and decisions of those agreements. Additionally, they may also have banned the importation of electronic waste domestically. Note that Basel Convention Parties that are not member states of the OECD will not be able to legally import hazardous electronic waste from the United States without a special bilateral agreement signed in advance between the two countries that is compatible with the obligations of the Basel Convention. This includes all Latin American countries with the exception of Mexico and all countries in Asia with the exception of Taiwan, Japan, and South Korea. Written documentation that addresses compliance with the import and export requirements of of importing these countries must be publicly available.
b. Prior to export of e-waste to non-OECD countries, the Plug-in Partner must remove and handle separately and ensure that such management only occurs in OECD countries for the the following materials, unless the export is of materials or equipment that is certified as working and for purposes of direct reuse.or refurbishment[JHP1]:
i. Batteries.
ii. Mercury- and PCB-containing lamps and devices.
iii. Circuit boards (however, under U.S. rules, minimal quantities of mercury and batteries that are protectively packaged to minimize dispersion of metal constituents do not need to be removed from whole circuit boards).
iv. Cathode Ray Tubes, or CRT glass.
These materials i. – iv., or any product containing these, cannot be exported to non-OECD countries for any reason[JHP2].
“Designated materials” for reuse or refurbishment
5. For any designated materials* that are being exported to non-OECD countries for directed to reuse or refurbishment[JHP3], the Plug-In partner must provide certifications labeled on the product that it has been tested as being in full working condition and not in need of further repair.have business records demonstrating that the shipped material will be legitimately reused or refurbished. For any designated materials that are not going to be exported to non-OECD countries but are intended for reuse or refurbishment, the Plug-in partner must certify that the material is in working order or is certified as repairable and have publicly available business records demonstrating that the shipped material has been certified working or repairable and will be legitimately reused or refurbished. Theseis provisions are is only intended to apply to those shipments of designated materials (such as the following intact equipment: monitors, televisions, CRT bulbs, CPUs, laptops, and cell phones) that have been prescreened to meet the reuse or refurbishment specifications of the purchaser. All items in the shipment must meet the purchaser’s specifications. Non-working or uncertified equipment Unscreened shipments for evaluation of reuse/refurbishment potential and shipments containing some reusable (or refurbishable) and some non-reusable (or non-refurbishable) equipment are considered shipments for recycling and are addressed in criterion 6. In the case of refurbishment, criteria 1-4 and 6 apply to any components that are subsequently determined [JHP4]to be unusable.
a. Business records to substantiate legitimate reuse or refurbishment include:
- i. Record of certification of working condition or repairability including date and tests performed.
- Name and address of consignee.
ii. Description of shipment content and conformance with consignee product specifications.
iii. Product specifications of consignee.
iv. If for-profit transaction, amount paid for the consigned material.
“Designated materials” for recycling
6. All designated materials that are directed to recycling** must be processed by facilities that meet the criteria herein. The Plug-In partner must have written evidence that demonstrates that all downstream processing and recycling operations, including smelters, that receive designated materials use practices that are consistent with these criteria. To this end, the Plug-In partner must maintain appropriate publicly available business records documenting the chain of custody for all downstream processing and recycling operations receiving designated materials. Criteria for recycling facilities that receive designated materials under the Plug-In program include the following:
a. All facilities must be fully licensed by all appropriate governing authorities. The degree of licensing required will vary depending upon the particular jurisdiction, as well as the size and nature of the facility. In some cases, extensive environmental permitting may be required by the governmental authorities, whereas in other cases perhaps only a business license is needed.
b. All facilities must have an environmental management system (EMS) in place or, in lieu of a fully developed and certified EMS (e.g., using ISO, EMAS or industry standards), a written plan describing the facility’s risk management objectives and its plans for attaining these objectives. Regular re-evaluation of environment, health and safety (EH&S) objectives and monitoring of progress toward achievement of these objectives must also be conducted and documented at all facilities. However, EPA recognizes that a fully developed EMS may not yet be in place for many facilities. In any case, a written plan describing risk management objectives and plans for attainment must, at a minimum, be available. EPA also recognizes that considerable flexibility for small businesses is necessary and that in some cases a fully developed and certified EMS may be unnecessary.
c. All facilities must take sufficient measures to safeguard occupational and environmental health and safety. Such measures may be indicated by local, state, national and international regulations, agreements, principles and standards, as well as by industry standards and guidelines. Except as noted below, such measures for all facilities include:
i. EH&S training of personnel.
ii. An up-to-date, written hazardous materials identification and management plan that specifically addresses, at a minimum, lead, mercury, beryllium, PCBs, batteries and toner.
iii. An up-to-date, written plan for reporting and responding to exceptional pollutant releases, including emergencies such as accidents, spills, fires, and explosions.
iv. Liability insurance for pollutant releases, accidents and other emergencies.
v. Completion of an EH&S audit, preferably by a recognized independent auditor, on an annual basis. However, for small businesses, greater flexibility may be needed, and an audit every three years may be appropriate.
vi. Demonstrated ability of governmental/legal ability to provide occupational health protections for all workers including, availability of occupational health expertise, workers compensation laws, and ability for employees to be compensated for damages through a tort system.