
                                       
                                       
                                       
                                       
                                       
                                       
Revisions to the Export Provisions of the Cathode Ray Tube (CRT) Rule Final Rule: 
                         Response to Comments Document
                                       
                                 February 2014

Overview

This Response to Comments Document contains the Environmental Protection Agency (EPA)'s responses to comments received on the 2012 Revision to the Export Provisions of the Cathode Ray Tube (CRT) Rule proposed rule (77 FR 15336, March 15, 2012). 

EPA received five comment letters on the proposed rule. For convenience, the comment letters are reproduced here in this comment response; however, the official comment letters can be found at www.regulations.gov Docket ID No. EPA-HQ-RCRA-2011-1014.



Table of Contents
List of Acronyms	4
Basel Action Network (BAN)	5
Comment	5
EPA Response	16
Consumer Electronics Association (CEA) and Consumer Electronics Retailers Coalition (CERC)	23
Comment	23
EPA Response	28
Institute of Scrap Recycling Industries (ISRI)	33
Comment	33
EPA Response	37
Tennessee Valley Authority (TVA)	39
Comment	39
EPA Response	39
Waste Management (WM)	41
Comment	41
EPA Response	43


List of Acronyms

BAN		Basel Action Network
CEA		Consumer Electronics Association
CERC		Consumer Electronics Retailers Coalition
EPA		U.S. Environmental Protection Agency
EU		European Union
FR		Federal Register
GAO		U.S. Government Accountability Office
HSWA 		Hazardous and Solid Waste Amendments of 1984
ISRI		Institute of Scrap Recycling Industries
OECD		Organization for Economic Cooperation and Development
RCRA		Resource Conservation and Recovery Act
TVA		Tennessee Valley Authority
WM		Waste Management



Basel Action Network (BAN)
Comment
 
May 15, 2012

Response of Basel Action Network

The Basel Action Network (BAN) is a charitable non-profit organization working at the nexus of hazardous chemicals, trade, the environment and human rights. We are among the foremost experts on these overlapping subjects and on the Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes and Their Disposal and are often called upon in numerous occasions and venues to provide the latest policy developments as well as actual on- the-ground information about illegal and harmful exports and dumping of toxic wastes such as electronic wastes that currently are exported from developed countries such as the United States to developing countries or countries with economies in transition. BAN seeks to prevent the exploitive externalization of costs and harm to weaker economies in avoidance of proper upstream, job providing, waste management of hazardous wastes at source.

With regard to these comments BAN expects to receive a considered response on both the specific proposed rule changes outlined in the Federal Register but more importantly in this case, the rules changes that have not been considered. Our comments and concerns do not
warrant avoidance of our proposed reforms based on the notion that these were not the questions posed to commenters. As the public was not involved at the critical decisions about what kinds of reforms of the CRT rule were/are needed, it is incumbent on the EPA to consider all comments on rule revision in order to understand whether the existing proposals is sufficient to address the underlying problem of environmentally harmful exports, from the United States of CRTs and CRT glass to other countries.

PART I. US CRT Rule as Revised Ignores Basel Convention / Encourages Criminal
Trafficking in Hazardous Waste

The proposed rules may appear to be an improvement by providing some more transparency, but added transparency is not at all the issue or the answer to the concerns at hand. The concern at hand is whether the United States is willing to ensure that actions taken under their jurisdiction will prevent illegal and/or harmful trafficking in what has been defined as hazardous waste under international law. The issue is that the US government despite being fully aware of the Basel Convention rules and how they apply to 178 countries around the world fails to address the fact that the exports for which the government seeks to garner more information about are fundamentally illegal under international law. It is not enough to shed more light on illegal activity if you have not at first recognized it as such and addressed it as such by prohibiting such exports unless they have the consent of the importing country.

US should never aid, abet, or knowingly allow illegalities to take place in foreign jurisdictions
by its own actions or lack of action in its own jurisdiction. For example even though the United
States is as yet not a Party to the Basel Convention, they should nevertheless recognize that the vast majority of their trading partners (179 countries) are Parties and thus obliged to follow Basel rules. It is the height of arrogance to set US its own trade rules such as the CRT rule
which flies in the face of international communities established trade rules. By doing so, the US
contributes to situations that encourage foreign countries or their citizens to violate those rules. This institutionalized ignorance of the Basel Convention requirements for our trading partners is very hard to comprehend because the United States attends all meeting of the Basel Convention and thus should be fully familiar with that body of law.

Indeed, it was the concern of violating other country's laws, which was one of the founding principles the EPA established with stakeholders at the outset of the R2 (Responsible Recycling) Practices negotiations. In those deliberations the principle was do nothing to violate other country's laws. And yet the CRT rule allows this to happen everyday and will continue to do so even after the supposed improvements are made. For this reason it is imperative that the EPA consider a new set of rules which appropriately apply the Basel Convention norms for trading partners that are Basel Parties.

Basel Rules

      * CRTs and CRT glass in all forms except those that are tested prior to export as fully functional and bound for a re-use market is considered as hazardous waste under the Basel Convention. See (Basel Annex VIII (A2010), Basel's Partnership for Action on Computing Equipment's (PACE) draft Guidance on Transboundary Movement of Computing Equipment).
         
      * The Basel Convention prohibits most importation of internationally defined hazardous wastes from the United States to other countries. That which is not prohibited is controlled by some form of notification and consent procedure.

The reasons for this are as follows:

      * The Basel Convention in Article 4, para. 5, does not allow for the Parties to trade with non-Parties unless a special bilateral or multilateral agreement exists that is consistent with the Basel Convention. The US is a non-Party and only has such an agreement for export with the Organization for Economic Cooperation and Development (OECD) countries collectively and with the OECD countries Canada and Mexico separately.
         
      * The Basel Ban Amendment has been adopted by many countries and forbids the export of hazardous wastes from OECD, EU and Liechtenstein (Annex VII countries) to all other countries for any reason.
         
      * Countries (e.g. China) or regions (e.g. Africa) may possess waste trade import prohibitions in law.

The only exceptions to when used CRTs and CRT glass might not be covered under the Basel Convention are as follows:

      * Cleaned cullet if prepared for direct smelting as a feedstock in a primary CRT smelter could be considered as a non-­‐waste but such a designation would need to first be made by the importing country. 
         
      * Tested functional CRTs, properly packaged and exported to a known re-­‐use market and not subject to recycling or disposal are considered outside of the scope of the Basel Convention. 
         
      * In sum, in most cases, the only exports of non-functional or untested CRTs and CRT glass from the United States that are legal would be those going to other Basel non- Parties (e.g. Taiwan) or exports that move to the 34 OECD countries and then only for the purposes of recycling and only under the procedures outlined in the OECD Council Decision C(2001)107/FINAL. 
   
      * All others moving to the 146 developing countries and countries with economies in  transition that are Basel Parties but are not Parties to the OECD decision noted above are illegal. Under the Convention, illegal traffic is considered criminal. 
 
The CRT Rule's distinction between exports for recycling (processed or otherwise) and re-use (if not direct reuse with tested and fully functional devices moving to a direct reuse market), are not legally relevant under the Basel Convention and thus the rules of importing countries. None of these forms of used CRTs, for recycling, disposal or further use, processed or not , are seen as commodities under the Basel Convention. They are viewed as hazardous waste. It was therefore inappropriate for the EPA to promulgate its first CRT rule on the basis of these distinctions just as it is inappropriate to perpetuate these distinctions as if US law were the only consideration when trade is involved.

For example, cullet (glass processed by crushing) is not excluded from the Basel Convention. Its presence on Basle Annex VIII is means that it is presumed to be hazardous.

Currently, massive amounts of whole CRTs and cullet are exported every day from the United States. Primarily the cullet goes to Korea, Indian (perhaps via the TDM company in Mexico) or Malaysia for glass-to-glass smelting to make new CRTs. Mostly these move illegally as they lack the designation by the importing country as a non-waste and yet those countries cannot legally trade in hazardous waste with the United States due to our non-Party status.

Likewise exports for repair or refurbishment have been scrutinized at the Mobile Phone Partnership Initiative (MPPI) and the Partnership for Action on Computing Equipment (PACE) under the auspices of the Basel Convention and both have produced guidelines that state that when exported equipment is sent and the repair involves the discarding of a hazardous part during repair, then that export will in accordance with the provided Decision Tree will be considered as an export of hazardous waste.

The whole CRTs are exported to South East Asia or China and to a lesser degree to Africa and South Asia for the stated purpose of re-use. Even though the US government is unable to collect formalized data on such exports, the flows of these have been demonstrated conclusively by BAN by the techniques of direct observation and container tracking (data available upon request), or by the GAO in their "sting" operations.

Virtually all of these exports described above are illegal in some jurisdiction other than the US. Some of the exporting companies have notified EPA under the current CRT rules and some have not. But even when EPA is notified the two gaping loopholes to avoid "capture" by the law remain:

CRT Rule Loophole Number One

Under the previous and the revised rule, a major loophole is maintained in that "processed CRTs" pursuant to the definition of CRT Processing (i.e., CRT processing means conducting all of the following activities: (1) Receiving broken or intact CRTs; and (2) Intentionally breaking intact CRTs or further breaking or separating broken CRTs; and (3) Sorting or otherwise managing glass removed from CRT monitors) is subject only to the speculative accumulation requirements. Exporters of such materials are not subject to the export notice requirements of 40 CFR 261.39(a)(5). This is fundamentally contrary to the Basel Convention and consequently the laws of 179 importing countries around the world.

The Basel Convention does not allow that simply crushing and sorting material suddenly very magically makes a hazardous material non-hazardous or a non-waste and it does not allow such glass to be exported without consent from the importing country. Yet under the US CRT revised rule, crushed CRTs could easily be exported without notification, even for dumping purposes or dangerous recycling operations and nobody would be the wiser. Furthermore these US exports are considered to be criminal trafficking in waste as soon as they leave our ports and enter the high seas.

CRT Rule Loophole Number Two

Another way exporters can avoid the law is to simply state that CRT tubes or monitors/TVs are not bound for recycling but for "reuse". Then it is not necessary for EPA to prior notify and get consent of importing countries before shipment. Yet Basel Parties consider these exports of
used CRTs to be hazardous unless the tubes are tested for full functionality and pass that test.
They would not allow such imports but nevertheless we exempt these from the Basel norms while knowing full well that the imports are likely illegal. The reforms sought in this revision do little to change the fundamental fact that these exports require strict controls to be legal imports in the recipient countries. EPA buries its head in the sand about this fact.

Exporters of such CRTs bound for export are under the revised rule required to "certify under penalty of law that the CRTs described in this notice are fully functioning or capable of being functional after refurbishment." This begins to look like useful language to control exports because functional equipment that is tested and labeled and shipped as such is not going to be considered a "waste" under Basel Convention rules. However the addition of the phrase "or capable of being functional after refurbishment," means that ANYTHING can be exported because of course any device is capable of being fully functional after refurbishment. However refurbishment may not be economically or physically achievable in the real situation.

Also the law is mute about circuit boards and other devices going along for the ride. While
these devices are technically not CRTs, the exports in reality are often other than just a bare tube
-- they include the housing and the ancillary devices. The circuit board is very likely to be considered hazardous waste under Basel due to the presence of lead in the board's solder and very often, as in the Semi-Knock-Down market are not reused but are simply discarded in the importing country as toxic waste. This ancillary import of circuitry is likewise illegal from the standpoint of international law and the domestic laws of a Basel Party country. And yet these exports are likewise not required to be notified and receive consent in accordance with the Basel rules.

The CRT rule has been completely ineffectual in serving to stem the tide of illegal traffic.
Indeed it is difficult to determine the purpose of the rule. If it were designed to prevent criminal
trafficking it would have surely included a provision prohibiting all exports that are forbidden to import from the standpoint of the importing country and it would have provided a list of all of the 146 countries that the US cannot trade with (ie. Basel Parties not members of the OECD).

Not only does that not exist, but the existing rule does not even ask the exporters to declare which country/ies they intend to ship to so US authorities can check on the legality. It is all too clear that the authors of the CRT rule did not want to reveal obvious illegality. For example the most common destination of exports are China, Vietnam, and Malaysia and the import prohibitions of these countries would be made transparent if the truth of the exports by the exporter were required to be reported.

However the revisions completely miss the mark. It is not more information that will prevent criminal trafficking of CRTs around the world; it is prohibiting the illegal behavior that will do so.

To avoid criminal trafficking in CRTs globally, and uphold the principle of not knowingly violate other country's laws the CRT rule must be fundamentally revised now to clarify which countries have prohibited imports from the United States and to ensure that the US behaves as if it were a Basel Party or an OECD Party when exporting others as applicable. Without first doing this, the CRT Rule remains inappropriate and unacceptable. The currently proposed revisions are indeed insignificant in the face of the continuous ongoing facilitation of criminal trafficking in hazardous waste by the government of the United States. The CRT rule is the obvious place to address this problem.



PART II. EPA's Proposed Revisions

While BAN will comment on the changes proposed (in italics), they will be meaningless without addressing the fundamental problem noted above.

A. Definition of "CRT Exporter"

"To eliminate any potential confusion over who is responsible for fulfilling CRT exporter duties, including submitting the export notices required under 40 CFR 261.39(a)(5)(for CRTs exported for recycling) and 40 CFR 261.41(for CRTs exported for reuse), the Agency is today proposing to add a definition of "CRT exporter" to 40 CFR 260.10. The proposed definition states that a CRT exporter is `any person in the United States who initiates a transaction to send used CRTs outside the United States or its territories for recycling or reuse, or any intermediary in the United States arranging for such export.'"

In the case of Executive Recycling of Colorado, the owners claimed that they in fact did not intend to export the CRTs, but rather they claimed their buyer did that without their knowledge and yet BAN has evidence that "this mistake" happened dozens of times. It is far too easy for all sellers to the eventual export market to claim that they are not exporters and had no idea the material they sold would be exported and in this way avoid responsibility for the export. The definition proposed does not solve this serious problem and continues to allow the "generator" of the waste to avoid prosecution. In BAN's view, should a sellers equipment be later exported without intermediary further processing or treatment, all of the entities in the disposal chain having held the equipment even for a short time, including the original generator/seller and the final holder prior to export must all be considered exporters. We don't understand why the definition does not include exports for final disposal as well. We would propose the following alternate export definition to read as follows:

BAN Revised Language: "CRT Exporter: any person/s in the United States, including the initiator and all subsequent intermediaries or exporters involved in transactions to sell or transfer used CRTs which later are exported outside the United States or its territories for disposal, recycling or reuse, without any intermediary processing or treatment."

With such a definition, the holder of CRTs will need to conduct their due diligence to know whether their CRTs will be exported or not. If they are, they are culpable for not fulfilling exporter duties under the rule.

B. Proposed changes to the notification required for used CRTs sent for recycling

Many of the exports today going for recycling do not have the consent of the importing country despite the importing country's laws requiring such in accordance with their obligations under the Basel Convention.

While, generally, as noted above, used CRTs are considered hazardous waste under the Convention, it is possible in the view of BAN for Basel Parties to declare the CRT cullet that has been cleaned of phosphors and prepared as a feedstock into a CRT furnace to make new CRTs can be considered to be a non-waste and thus outside of the scope of the Basel Convention. The Basel Competent Authorities of both the exporting and importing countries can only make that determination however. In any case then, exports cannot be allowed by the United States, and still respect the integrity of the laws of importing states without first determining the legality of the import by first notifying and then getting the consent of the importing country. To be legal under the Basel Convention, the countries of transit and import must be notified and give their consent or not on a case-by-case basis prior to transboundary movements. Thus EPA's query based on company reporting on a yearly basis is not appropriate with respect to the laws of importing countries unless those importing countries stipulate that yearly queries/consents are appropriate in a particular case. EPA cannot declare a general consent procedure unilaterally.

The newly proposed yearly reporting requirements (cited below) are not going to provide case- by-case information and thus are not likely to be useful for receiving prior informed consent as required by the Basel Convention (Article 6). Further these reporting requirements are not even applied if the CRTs in question are "processed". That distinction is not appropriate under the rules of importing countries. It is a fabrication of the US and since we are trying to prevent violations of other country's laws and not just the US laws in our endeavor with the CRT Rule, this distinction is not appropriate.

"Under today's proposal, the exporter must provide, no later than March 1 of each year, a report summarizing the quantities (in kilograms), frequency of shipment, and ultimate destination(s) (i.e., the facility or facilities where the recycling occurs) of all CRTs exported for recycling during the previous calendar year. Such reports must also include the name, EPA ID number (if applicable), mailing and site address of the CRT exporter, the calendar year covered by the report, and a certification signed by the exporter which states: "I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

The above formulation must be replaced with the following in accordance with Basel Annex V A in order not to violate the national laws applying Basel in the importing country.

BAN Revised language: "Prior to export the exporter must provide to EPA, a notification stating the reason for export, CRT exporter/s including EPA ID number if applicable, source of CRTs, ultimate destination address and entity, intended carriers and agents, country of import, countries of transit, projected itinerary including points of entry and exit, means of transport, insurance information, description of shipment, type of packaging used, estimated quantity (in kilograms), frequency of shipment if general notification is accepted by all countries concerned, fate or method of disposal, recycling or reuse, copy of contract between exporter and disposer, and finally a certification signed by the exporter which states: "I certify under penalty of law that the used CRTs will be managed in an environmentally sound manner, I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

"Because CRTs are sometimes exported to more than one recycler in the receiving country, we are proposing to replace this language with a requirement that the exporter state the name and address of the recycler or recyclers and the estimated quantity of CRTs to be sent to each facility, as well as the names of any alternate recyclers. In this way, EPA will be able to provide the receiving country with the most accurate information available about the ultimate fate of the CRTs when they reach that country."

This procedure is not consistent with the Basel process and once again shows that the United States refuses to recognize the rules the rest of the world must abide by. The Basel Convention only allows notifications from one exporter to one consignee, as it should be for proper scrutiny and control. If an exporter does not know whom the consignee is, this should signal a serious problem. This change is not appropriate.

C. Proposed changes to the notification required for used, intact CRTs exported for reuse.

"Since promulgation of this requirement, the Agency has become aware that some CRTs allegedly exported for reuse are actually recycled in the receiving country, sometimes under unsafe conditions."

Actually BAN had informed the EPA of this fact before promulgation of the standard. In 2005
BAN published the report: "The Digital Dump: Reuse and Abuse in Africa", and yet the
authors of the old CRT Rule chose to ignore this very important information. Once again in the case of this revision, EPA refuses to recognize the serious harm the US policies are perpetuating by intentionally choosing to ignore the Basel Convention and facts on the ground in developing countries.

"Failure to file the notice required for CRTs sent for recycling deprives the Agency of its ability to notify the receiving country about the CRTs to be imported into that country and obtain its consent. In order to require exporters to submit more complete information about the purported reuse of the exported CRTs over a specific period of time, we are proposing to add items to the reuse notice at 40 CFR 261.41 that are modeled on those required in the notice for CRTs exported for recycling."

It is not clear if EPA has the authority to exercise the prior informed consent procedure and prevent shipments for reuse should there be no consent, under the CRT rule. In any case if they do possess this authority, they should exercise it in every instance because, as mentioned above, under the Basel Convention's guidance prepared under the MPPI and PACE programs, exports for reuse following repair, are likely to be covered under the Basel Convention if they are not fully functional and tested as such. Thus all such shipments should be subject to notification and consent prior to export. And the exports should first require all of the information BAN has listed above with respect to notifications for recycling. That information is consistent with what is required of importing countries under their Basel obligations as listed in Basel Annex V A.

"In addition, today's proposal would replace the one-time notice provision with a requirement that the notice be submitted periodically, to cover exports for reuse expected over a twelve month or lesser period. EPA believes that this additional information in the notice for reuse would greatly improve tracking, and thus better management, of these CRTS that are claimed to be exported for reuse."

Again, EPA is unwilling to utilize what importing countries legally require. The assumption under the Basel Convention is that countries require a case-by-case notification and not a general notification every 12 months. Under the Basel Convention, general notifications are only allowed when all Parties agree to it in advance (See Article 6). BAN does agree that the notifications must be sent to the EPA federal Office of Enforcement and Compliance Assurance and not to the EPA Regional headquarters.

 "The Agency solicits comment on whether the proposed notice could effectively contain fewer items of information, or whether the goal could be accomplished in some other manner. In addition, the Agency requests comment on whether the proposed notice should be sent to the Regional Administrator (as is the case with 40 CFR 261.41) or to EPA Headquarters, where notices for CRTs exported for recycling are currently sent. The Agency believes that sending both types of notices to EPA Headquarters would facilitate retention and effective tracking of such notices, and will also be easier for those exporters who are required to submit notices for both reuse and recycling. However, we solicit comment on whether there are benefits in sending these notices to the EPA Regions."

BAN reiterates that all such notices include more information and not less and the correct information so that they are consistent with what is required under Basel (Annex V A). All notices should go to federal headquarters, as that is what is expected by Basel Competent Authorities all over the world.

"The Agency also solicits comment on whether to require exporters of CRTs for reuse to accompany all shipments of such CRTs with copies of the notice submitted pursuant to
40 CFR 261.41. If such a requirement were finalized, the Agency would require such exporters to submit a complete notification to EPA before the initial shipment is intended to be shipped off-site (e.g., 60 days before the planned shipment), so that the exporter would have time to submit a copy of the completed notice with the shipment. In this way, if officials of U.S. Customs examined a shipment of used CRTs exported for reuse, they would be able to quickly obtain more information from the exporter or from EPA, if necessary. The Agency solicits comment on the benefits of such a requirement and whether such benefits would outweigh the costs to the exporter."

As is required in the Basel Convention, all shipments of used CRTs for reuse or recycling, unless tested as being fully functional must be accompanied by a movement document (Basel Annex V B), containing the following information: exporter, generator, disposer/recycler, carriers, date of shipment, signature of each holder en route, means of transport, general description of the material, information on special handling, type and number of packages, quantity in weight and volume, declaration of truth, declaration of no objection from the transit and importing states after pre-notification, certification by disposer/recycler indicating method of disposal/recycling and the appropriate date of disposal/recycling.

"EPA solicits comment on whether to require specific types of documents to be retained, such as contracts, invoices, and/or shipping documents, and, if so, which documents
must be retained."

BAN believes that documents should be retained for 3 years and should include, all invoices with brokers, shippers, forwarding agents, shipping lines, and truck drivers. All Bills of Lading including intermodal shipping container numbers should also be retained as well as copies of insurance.

"We also solicit comment on whether to require persons who export CRTs for reuse to provide a third-party translation of the documents into English if the documents are written in a language other than English and if EPA requests such a translation."

Copies in English must be made available as described. But this must be done for all shipments and not just those listed for reuse.

"In addition, we request comment on whether to require persons who export CRTs for reuse to provide contact information on an alternative destination facility for used, intact CRTs that are damaged in transit, or whether to require such persons to send the damaged CRTs back to the CRT exporter."

In BAN's view broken equipment should be returned to the sender. This will ensure EPA can have jurisdiction over the final disposal/recycling operation after something has already gone wrong, this is warranted.

"Finally, the Agency also solicits comment on whether to add a requirement to submit annual reports for exporters of used, intact CRTs for reuse. These reports could be identical to the reports proposed for CRTs exported for recycling. They would enable EPA to learn the actual number of CRTs exported for reuse, which may be different from the number estimated in Page 18 of 34 the original notice required under 40 CFR 261.41. EPA requests comment on whether this information would provide benefits which might outweigh the costs of submitting the report.

Annual reports will not be necessary if all of the reporting as described above is done as BAN has described and in accordance with the Basel Convention. EPA computers will be able to process those numbers and produce all manner of comprehensive reports.

D. Other Issues

"Bare" CRTs

"The current definition of "used, intact CRT" in 40 CFR 260.10 means a CRT whose vacuum has not been released. As we stated in the preamble to the 2006 final rule (71 FR 42942), this definition would encompass intact CRTs that are removed from the monitor with the vacuum still intact, even though the plastic housing or casing has been broken and removed. In that preamble, EPA stated that these materials resembled products more than wastes, and therefore should not be considered solid wastes unless disposed. If such "bare" CRTs are exported for reuse (i.e., placement into CRT monitors), they would not be subject to the export requirements of 40 CFR 261.39(a)(5), but would instead be subject to the reuse requirements of proposed 40 CFR 261.41. However, if exported for recycling, (presumably for glass or lead recovery), they would not be
eligible for the exclusion in 40 CFR 261.39(c) for processed glass sent to a lead smelter or glass manufacturer because the CRTs have not been processed pursuant to the definition of "CRT processing" in 40 CFR 260.10."

Once again, EPA is inappropriately applying its own national definitions to exports that impact the international legal landscape, yet are not shared by any other country. This approach is not conducive to legal movements of waste globally and in fact will contribute to criminal activity. The Basel Convention does not make any distinctions between tubes with or without a vacuum. Only material that is fully functional following testing and guaranteed to go to a reuse market are exempt from the Basel Convention. This rule must do likewise for all exports to Basel Parties.

"EPA solicits comment on whether "bare" CRTs removed from the monitor whose vacuum has not been released are likely to be exported for recycling rather than reuse and whether the regulation needs to be modified to reflect this situation."

Export of bare tubes for which the vacuum has been released is likely to be only used for recycling. However tubes, bare or otherwise, whose vacuum has not been released and are intact can very well be exported directly to developing countries for recycling as well. There is still a robust market for the plastic housings and the copper yokes for example.

PART III: Enforcement

According to the GAO report of 2008 entitled "EPA Needs to Better Control Harmful U.S. Exports through Stronger Enforcement and More Comprehensive Regulation" the following is stated:

"In recent years, however, irresponsible practices have come to light, prompting EPA to implement notification requirements for any company exporting CRTs. To date, the agency has established no enforcement targets, done no monitoring, conducted only preliminary follow-up of suspected violations, and taken only one enforcement action. Not only do EPA's present enforcement efforts fall short, but the agency also apparently has no tangible plans to develop more effective ones. Until an enforcement mechanism is developed and effectively implemented, consumers and businesses aiming to be environmentally responsible with their used electronics -- particularly CRT monitors and televisions -- should be skeptical of some companies that claim to responsibly recycle these devices."

"We recommend that the Administrator, EPA, identify a timetable for developing and implementing a systematic plan to enforce the CRT rule. This plan should include the basic elements of effective enforcement, such as enforcement targets, monitoring, follow-up of suspected violations, and prosecution."

The response by EPA to this critique of the GAO has been an appalling disappointment. To our knowledge EPA only has one enforcer assigned to the CRT Rule and that person is only assigned to the matter part-time. Three high-profile cases have been revealed in recent years and not one has led to a prosecution, let alone penalties. These cases involve Executive Recycling in Colorado (2008), Earth e-Cycle in Pennsylvania (2009), and Intercon Solutions in Illinois (2011) all with substantial proof of illegal exports provided to EPA. This is hardly surprising with the lack of resources dedicated to the cause of enforcing the law even when the evidence is handed to EPA by outside sources.

The CRT rule should not be revised unless EPA intends to follow the GAO's advice and enforce the revised rule. In many ways an unenforced law is worse than no law at all. It instills a lack of respect for all laws and authority.

EPA Response

In response to BAN's comments in Part I: "US CRT Rule as Revised Ignores Basel Convention/Encourages Criminal Trafficking in Hazardous Waste."
EPA agrees with BAN that the revisions in the final rule provide more transparency with regards to exports of used CRTs for reuse and recycling. EPA believes that the revisions, including the revised notice for used CRTs exported for recycling and annual reports for used CRTs exported for reuse, will allow the Agency to better track exports of CRTs in order to ensure safe management of these materials. The final rule, thus, reduces the potential for illegal or harmful trafficking of used CRTs. Additionally, EPA notes that exports of used CRTs for recycling are prohibited unless EPA receives consent from the importing country.
EPA does recognize that the vast majority of countries are parties to the Basel Convention, and are thus obliged to follow the Basel requirements. EPA provides guidance to this effect where applicable, for example, in response to questions from the regulated community or in responses to inquiries from foreign countries. However, while the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention. EPA does not agree that the EPA should consider promulgating rules based on the Basel Convention without the United States first becoming a party to the Convention. Additionally, EPA notes that, upon receiving notice of export of used CRTs for recycling from the EPA, an importing country may choose whether to consent or withhold consent in accordance with the importing country's regulations, including the Basel Convention  requirements, if applicable. Furthermore, the final rule requires more information regarding used CRTs exported for reuse, which EPA can use to respond to inquiries from foreign countries. 
Because the United States is not a party to the Basel Convention, BAN's specific comments regarding the Basel rules are thus not applicable to the CRT rule.
In response to BAN's comments in part 1: "CRT Rule Loophole Number One."
In the July 2006 CRT final rule, EPA explained that processed CRT glass (i.e., glass that has been broken and sorted) is commodity-like and thus should be excluded from the RCRA definition of solid waste. In particular, the Agency found that processed CRT glass sent to glass manufacturers or lead smelters needs minimal further processing and has economic value and strong end markets. EPA also found that processed CRT glass is similar to materials that glass manufacturers and lead smelters use as feedstock and that it is handled to minimize loss. Therefore, EPA did not finalize conditions for processed CRT glass, beyond requiring that the glass not be speculatively accumulated. (71 FR 42936) 
In response to BAN's comments in part 1: "CRT Rule Loophole Number Two."
Under the final rule, CRT exporters of used CRTs exported for reuse must send a notification to EPA that would cover export activities extending over a 12-month or lesser period. The written notification, signed by the exporter, must contain the following information listed in § 261.41, including the name, mailing address, telephone number, and EPA ID number (if applicable) of the exporter of the used, intact CRTs; the estimated frequency or rate at which the used, intact CRTs are to be exported for reuse and the period of time over which they are to be exported; the estimated total quantity of used, intact CRTs specified in kilograms; all points of entry to and departure from each transit country through which the used, intact CRTs will pass, a description of the approximate length of time the used, intact CRTs will remain in such country, and the nature of their handling while there; a description of the means by which each shipment of the used, intact CRTs will be transported (e.g., mode of transportation vehicle, such as air, highway, rail, water, etc.), as well as the type(s) of container (drums, boxes, tanks, etc.); the name and address of the ultimate destination facility or facilities where the used, intact CRTs will be reused, refurbished, distributed or sold for reuse and the estimated quantity of used, intact CRTs to be sent to each facility, as well as the name of any alternate destination facility or facilities; a description of the manner in which the used, intact CRTs will be reused (including reuse after refurbishment) in the foreign country that will be receiving the used, intact CRTs; and a certification signed by the CRT exporter.

This additional information will enable better reporting by EPA in response to information requests from receiving countries and other interested parties regarding exports of used CRTs for reuse. This information will, in turn, enable effective compliance monitoring by EPA and those countries receiving such exports, which decreases the risk of potential mismanagement of the materials.

EPA agrees with BAN that the proposed certification language could be clearer regarding the standard for used, intact CRTs exported for reuse. Therefore, EPA has amended the proposed certification language to read "that the CRTs described in this notice are intact and fully functioning or capable of being functional after refurbishment and that the used CRTs will be reused or refurbished and reused...." EPA believes that the addition of "are intact" makes it clear that broken CRTs would not meet this standard and thus could not be exported for reuse. EPA also notes that CRT exporters, including exporters that do not have physical access to the CRTs, such as a broker or intermediary, are responsible for ensuring that the used CRTs are intact and fully functioning or capable of being functional after refurbishment and that the used CRTs will be reused or refurbished and reused.

Additionally, EPA affirms that persons notifying that they are exporting used, intact CRTs for reuse, but whose CRTs are subsequently not reused, but recycled or disposed, may be subject to enforcement action under RCRA section 3008(a) for violations of the hazardous waste requirements occurring from the time the hazardous secondary materials are generated through the time they are ultimately disposed or recycled. The Agency affirms that § 261.2(f) applies to claims that hazardous secondary materials are not solid waste or are conditionally exempt from regulation. Respondents in enforcement actions should be prepared to demonstrate that there is a known market (for reuse of the used, intact CRTs) and that they are meeting the terms of the exclusion.

Regarding circuit boards that are exported along with the used CRTs, EPA notes that CRT exporters that export used CRTs for recycling must provide notice and obtain consent from the importing country prior to exporting the CRTs. Thus, an importing country may choose to consent or withhold consent of the export in accordance with the importing country's regulations, including the Basel Convention rules, if applicable.

EPA does not agree with BAN that the rule does not even ask the exporters to declare which countries they intend to export used CRTs to. In fact, under the final rule, both exporters of used CRTs for recycling and reuse must send a notification to EPA that would cover export activities extending over a 12-month or lesser period and which includes all points of entry to and departure from each transit country through which the used CRTs will pass as well as the ultimate destination facility and name of any alternate destination facility.

Because the United States is not a party to the Basel Convention, EPA does not agree with revising its regulations to specifically prohibit exports to certain countries. As stated previously, EPA does offer guidance to the regulated community and to foreign countries regarding the intersection of U.S. federal regulation of used CRTs and, where applicable, the Basel Convention.

In response to BAN's comments in Part II: "EPA's Proposed Revisions."

A. Definition of "CRT Exporter"

EPA disagrees with BAN that the definition of "CRT exporter" should be expanded to include all entities along the electronic recycling chain, regardless of whether these entities are engaged in export activities, such as initiating a transaction to, or arranging for, export of CRTs.

In many cases, generators of CRTs do not possess the expertise to determine whether certain CRTs can and may be reused, refurbished, or recycled -- whether domestically or internationally. Many generators contract out collection and management of used CRTs to a recycling facility, whose business includes making these determinations. Thus, EPA does not believe that generators should automatically meet the definition of "CRT exporter" because, in many cases, the generator would not be making the decision to export the used CRTs and moreover would lack specific knowledge of the exporting operations (e.g., foreign destination facility, quantity of used CRTs to be exported) needed to submit export notices. 

However, generators of used CRTs that do make the decision to export certain CRTs and thus initiate, or arrange for, export of used CRTs, would meet the definition of "CRT exporter" and thus would be responsible for fulfilling the CRT exporter duties. (As noted previously, if more than one person is a CRT exporter, then only one person must perform the exporter duties under §§ 261.39(a)(5) and 261.41, however, all CRT exporters are liable if the exporter duties are not fulfilled.)

As an example of how the definition would apply, a state may contract with a recycling facility to collect and recycle used electronics, including used CRTs. The recycling facility makes the decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also makes the decision whether to reuse or recycle the CRTs domestically or whether to export the used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling facility, are not involved in the decision-making to export certain CRTs and are not initiating a transaction to export, or arranging for export. Thus, these entities would not be considered a "CRT exporter" and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the recycling facility is making the decision to export certain CRTs and is thus initiating a transaction to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, both the recycling facility (which initiated the export) and the broker (who arranged for the export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has collected CRTs and is storing them on site. In this case, the electronic recycler determines how the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic recycler also initiates the transaction to export by partnering with a broker to find foreign entities that can reuse or recycle the CRTs abroad -- that is, the broker acts as an intermediary and makes arrangements for the export of used CRTs by soliciting and evaluating bids from foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing or receiving information from the broker and packaging and preparing the used CRTs for transport across international boundaries. Therefore, both the electronic recycler and the broker are CRT exporters.

B. Proposed Changes to the Notification Required for Used CRTs Sent for Recycling

EPA does not agree that used CRTs exported for recycling lack the consent of the importing country. Under the CRT rule, CRT exporters that export used CRTs for recycling must provide notice and obtain consent from the importing country.

EPA has concluded that notice and consent based on a 12-month or lesser period, coupled with today's condition to submit annual reports for the CRTs actually exported over the previous 12-month or lesser period, provides sufficient information to adequately monitor the export of used CRTs in order to ensure proper management of these materials abroad. Specifically, EPA would be able to analyze specific shipments from exporters by comparing actual shipments in the annual report against the proposed shipments in the export notice to ensure that the shipments occurred under the terms approved by the receiving country. Requiring notice and consent on a per shipment basis, as this commenter suggests, would not provide any additional protection, but would increase the burden for CRT exporters and EPA, as well as receiving and transit countries. Furthermore, EPA notes that the receiving country always has the option of specifying consent for a lesser period, or on a per shipment basis, if it chooses to do so. Finally, we note that while the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.

C. Proposed Changes to the Notification Required for Used, Intact CRTs Exported for Reuse

EPA disagrees with BAN that the Agency refuses to recognize that some CRTs that are exported for reuse are actually recycled in the receiving country, sometimes under unsafe conditions. In fact, the final rule finalizes revisions to the export provisions of the CRT rule to enable better reporting by EPA in response to information requests from receiving countries and other interested parties regarding exports of used CRTs for reuse. For example, in the final rule, exporters of used, intact CRTs sent for reuse must send a notification to EPA that would cover export activities extending over a 12-month or lesser period. This information will, in turn, enable effective compliance monitoring by EPA and those countries receiving such exports, which decreases the risk of potential mismanagement of the materials.

EPA considers used CRTs exported for reuse to be more like products and thus EPA does not agree with requiring CRT exporters to obtain consent, such as is required for used CRTs exported for recycling. However, EPA has concluded that our authority to request information about used CRTs being exported for reuse is inherent in our authority to determine whether a material is discarded. Thus, in the final rule, EPA is requiring additional information of CRTs exported for reuse and to require submittals to cover exports over a 12-month or lesser period. EPA notes that the information in the notice is similar to what is required of importing countries under their Basel obligations. However, we also note that while the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.

EPA has concluded that notice and consent based on a 12-month or lesser period, coupled with today's condition to submit annual reports for the CRTs actually exported over the previous 12-month or lesser period, provides sufficient information to adequately monitor the export of used CRTs in order to ensure proper management of these materials abroad. Specifically, EPA would be able to analyze specific shipments from exporters by comparing actual shipments in the annual report against the proposed shipments in the export notice to ensure that the shipments occurred under the terms approved by the receiving country. Requiring notice and consent on a per shipment basis, as this commenter suggests, would not provide any additional protection, but would increase the burden for CRT exporters and EPA, as well as receiving and transit countries. Furthermore, EPA notes that the receiving country always has the option of specifying consent for a lesser period, or on a per shipment basis, if it chooses to do so. Finally, we note that while the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.
EPA agrees with BAN that all notices should go to federal headquarters and thus, the final rule requires all notifications to export CRTs, whether for reuse or recycling, must be sent to EPA's Office of Enforcement and Compliance Assurance.
EPA disagrees with BAN that all shipments of used CRTs for reuse or recycling must be accompanied by a movement document. Although EPA has considered whether this would be helpful to officials of U.S. Customs who would be examining a shipment, EPA is not finalizing this condition because we do not believe it would serve much purpose, especially since notices for exports of used CRTs for reuse involve no consent or terms of consent by the importing country, and thus, we do not believe an accompanying notice is necessary for protection of human health and the environment. We would also note that while the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.
EPA agrees with BAN that business records for used CRTs exported for reuse be retained for a period of at least three years from the date the CRTs were exported. Therefore, EPA has finalized this condition at 40 CFR 261.41(b). EPA has decided not to require the CRT exporter to retain specific types of documents because the Agency expects that the normal business records for used, intact CRTs sent for reuse, which the CRT exporter is required to maintain for three years under § 261.41(b), would likely contain the appropriate information for meeting the condition. Examples of normal business records include contracts, invoices, and bills of lading.

EPA agrees with BAN that persons who export used, intact CRTs for reuse to provide a third-party translation of the documents into English if the documents are written in a language other than English and if EPA requests such a translation. Therefore, EPA has finalized this condition at 40 CFR 261.41(b). EPA believes that requiring CRT exporters to provide an English translation of normal business records upon request by EPA is inherent in the demonstration that each shipment of used, intact CRTs will be reused. English translation will also assist with compliance monitoring of this provision. 

EPA has decided not to finalize specific regulatory conditions for used, intact CRTs that become damaged in transit. CRTs that are exported for reuse and subsequently become damaged in transit to the extent that the importing facility in the receiving country determines that the CRTs cannot be reused would typically be returned to the CRT exporter. To the extent that CRT export shipments for reuse will regularly and predictably include a percentage that ultimately need to be recycled, the original notice for reuse would not cover any subsequent shipping of damaged CRTs to a recycling facility in that country. Unless the damaged CRTs are sent back to the exporter for management in the U.S., the exporter would need to submit a notice to EPA to export a specified amount of used CRTs for recycling at the recycling destination facility in the destination country in order to obtain consent from the country of import prior to sending any of the unusable CRTs from the reuse/refurbishment site to that recycling destination facility.

EPA has decided not to finalize a requirement that annual reports be submitted by CRT exporters who export CRTs for reuse. The export provisions for used, intact CRTs exported for reuse are quite different from the export provisions for used CRTs exported for recycling. Specifically, used CRTs exported for recycling must comply with the notification and consent procedures. In this case, the annual report is needed to ensure that CRTs were exported according to the terms approved by the receiving country. However, used, intact CRTs exported for reuse must submit a notification only and do not need consent of the receiving country. Thus, upon further consideration and analysis, the Agency does not believe that the submission of such an annual report for CRTs exported for reuse is needed and would impose burden on the CRT exporter. We would also note that while  the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.
D. Other Issues  -  "Bare" CRTs

EPA is not making any regulatory changes pertaining to the issue of "bare" CRTs. Upon further consideration, EPA continues to believe that "bare" CRTs (meaning intact CRTs that are removed from the monitor while the vacuum is still intact) are more product-like than waste-like, that is, bare CRTs more closely resemble functional CRTs as opposed to broken CRTs or CRTs that must be recycled. Therefore, if "bare" CRTs are exported for reuse, they would not be considered subject to the export conditions of § 261.39(a)(5) (export provisions for CRTs exported for recycling), but rather would be subject to the export requirements of § 261.41 (export provisions for CRTs exported for reuse). We would also note that while  the United States is a signatory to the Basel Convention, the United States is not a party to the Basel Convention.

In response to BAN's comments in Part III: Enforcement

EPA acknowledges BAN's comments that said that EPA lacks resources dedicated to the cause of enforcing the CRT rule. EPA believes the revisions in the final rule will assist with compliance monitoring of the CRT rule.

Consumer Electronics Association (CEA) and Consumer Electronics Retailers Coalition (CERC)
Comment

May 14, 2012
Dear Sir or Madam:

Thank you for the opportunity to provide comments on the proposed revision to the export provision of the cathode ray tube ("CRT") rule, which the US Environmental Protection Agency ("EPA") published in the Federal  Register on March 15, 2012 (77 FR 15336).

The Consumer Electronics Association(R) ("CEA") and the Consumer Electronics Retailers Coalition ("CERC") jointly submit these comments for EPA's consideration. CEA represents more than 2,000 companies involved in the design, development, manufacturing, distribution and integration of audio, video, in-vehicle electronics, wireless and landline communications, information technology, home networking, multimedia and accessory products, as well as related services that are sold through consumer channels. CERC is a not-for-profit public policy organization that includes major specialist and general retailers of consumer electronics products, and retailer associations.

As producers, sellers, collectors, and recyclers of electronic products, CEA and CERC members strongly support EPA's goal of promoting the responsible recycling of CRTs and CRT-containing products. CEA and CERC also strongly support the need for EPA to establish a rigorous and effective system for ensuring the responsible export of CRTs and CRT-containing products. CEA and CERC, however, are concerned with certain provisions contained in the proposed rule that may unintentionally discourage the responsible recycling and reuse of CRTs and CRT-containing products. CEA and CERC's specific comments are outlined below.

       (1) Proposed Definition of "CRT Exporter" Must Include an Actual Knowledge Component

The proposed definition of "CRT exporter" would include "any intermediary .arranging" for CRT export. This proposed definition is too broad as it may encompass entities that lack direct knowledge about CRT export. A collector may deliver used CRTs for recycling under a contractual agreement that they not be exported  -  yet, under the proposed rule, the collector could still be considered to be an "intermediary" if the used CRTs are ultimately exported. Or, a collector may transfer ownership of used CRTs without knowledge whether or not they will ultimately be exported, but, acting responsibly, stipulate contractually that if items are exported, all federal and state export requirements must be met. In neither of these cases should the collector be considered a CRT export "intermediary." In neither case would the collector have any knowledge that the CRTs will be exported or have any power to control their final disposition. Nor would the collector have access to the information that (as discussed below) the EPA now proposes to require CRT exporters to disclose. The inclusion of a provision forbidding the export or requiring the lawful disposal, if exported, in a contract between a collector of CRTs and an entity that accepts the CRTs, should not be construed as making the collector an "intermediary." To do so would be perverse and at odds with the EPA's objectives of encouraging responsible CRT management, as it would provide a strong disincentive for the collection and consolidation of used CRTs.

The current CRT rule recognizes that CRT export notification is triggered by the "intent to export" CRTs. The rule states that CRT exporters must "[n]otify EPA of an intended export before the CRTs are scheduled to leave the United States" (emphasis added). 40 CFR § 261.39 (a)(5)(i). This is, appropriately, an actual knowledge standard. Accordingly, to the extent that EPA is to consider anyone other than the actual CRT exporter to be the "CRT exporter," (1) the entity should have specific knowledge with respect to the CRT export transaction at issue, and (2) the knowledge should be actual rather than imputed.

The proposed rule would establish new reporting obligations for CRT exporters, including the submission of annual reports that contain a certification statement. Imposing new "CRT exporter" notification requirements, including certification obligations, on intermediaries would be onerous and counter-productive in the absence of specific and actual knowledge that CRT export will occur and such a requirement may discourage responsible collection activities. The export notification requirements would impose an unfair burden, because, as in the cases discussed above, the collector is likely to lack the specific knowledge that is necessary to sign such a certification. This proposed definition of "CRT exporter" may ensnare many entities that are far removed from the actual act of exporting CRTs, including state and local government agencies, electronics producers, retailers, charitable organizations, waste management firms, recycling firms, and brokers, collectors and consolidators. It would be both poor policy and unfair to make these entities potentially liable for the actions of the direct CRT exporter.

       (2) Inclusion of Intermediaries in Proposed Definition of "CRT Exporter" Would Confuse Export Notification Obligations

As stated above, the proposed rule would define a "CRT exporter" as "any person in the United States who initiates a transaction to send used CRTs outside the United States territories for recycling or reuse or any intermediary in the United States arranging for such export" (emphasis added)(Ibid). According to the preamble, the proposed definition of "CRT exporter" is designed "[t]o eliminate any potential confusion over who is responsible for fulfilling CRT exporter duties, including submitting the export notices required" (Ibid at 15338).

CEA and CERC are concerned that the proposed definition of "CRT exporter" would actually add confusion to the CRT export notification process by adding "intermediaries" to the entities that would have CRT export notification obligations. The proposed definition may produce an unintended consequence of allowing entities that directly export used CRTs to shirk their export notification responsibilities since, under the proposal, other entities would be equally responsible.

CEA and CERC encourage EPA to apportion CRT export notification responsibilities based on the actual and proximate knowledge and degree of control over the CRTs or CRT-containing products being exported. The entity with direct control over the actual CRT export should bear the primary responsibility for CRT export notification. CEA and CERC urge EPA to define "CRT exporter" as the entity that is directly responsible for the CRT export. Casting the liability net wider will not produce the intended result of improved CRT export notifications. Rather, increasing the number of potentially responsible parties will only provide direct CRT exporters with more defenses and reasons to avoid their legal obligations.

       (3) Proposed Definition of "CRT Exporter" Would Improperly Impose "Joint and Several" Liability on All Intermediaries

The proposed definition of "CRT exporter" would impose new CRT exporter duties and their attendant Section 3008(a) liabilities on all entities that participate in the chain of businesses that collect, refurbish, dismantle, recycle, and reprocess used electronic products and their components. According to the proposed rule's preamble, "all persons are jointly and severally liable for failing to comply with the exporter requirements" (Ibid at 15338). EPA adds, "[i]n other words, EPA has the authority to enforce the CRT rule export regulations against all persons associated with the export who meet the definition of "CRT exporter" (Ibid).

While CEA and CERC understand and support EPA's intent to ensure that appropriate export notification occurs, EPA's proposed definition of "CRT exporter" would extend liability for export notification to all intermediaries that may have some role (no matter how small) in arranging CRT export. The use of joint and several liability to justify an extremely broad definition of "CRT exporter" is improper since the legal obligations associated with CRT export notification can be linked to the entities that have the specific and actual knowledge that the CRTs will be exported. In other words, making entities far removed from the actual CRT export "jointly and severally liable" for the direct CRT exporter's failure to notify constitutes an improper application of joint and several liability, which is typically used in cases where causation cannot be tied to a specific action or actor.

As stated above, the definition of "CRT exporter" should only include entities that have specific and actual knowledge or intent to export CRTs or CRT-containing products out of the United States. EPA's proposed definition of "CRT exporter" would include "any intermediary in the United States arranging for such export" (emphasis added). The problem with this formulation is that the phrase "or intermediary" is not explicitly tied to the intention to arrange for CRT exports. In the interests of fairness and appropriate incentives, and in the context of developing markets for CRT collection, there should be a clear nexus between the entity covered as a "CRT exporter" and the actual act of CRT exporting. CEA and CERC urge EPA to clarify the definition of "CRT exporter" to reflect a requirement that there be specific and actual knowledge and intent.

CEA and CERC recognize that certain intermediaries (i.e., the ones with the closest nexus to the actions of the CRT exporter) may be able to influence the direct CRT exporters' export activities; however, the definition of CRT exporter should not encompass intermediaries generally. As noted above, the definition should not include collectors absent specific ties to an export transaction and actual knowledge and intent. Rather. EPA should work with intermediaries to explore how they could use non-regulatory methods to direct CRT exporters to meet their export notification provisions. Such methods include contractual provisions, recycling certifications and other commercial terms.

       (4) Proposed Rule Would Improperly Regulate CRTs that are Sent for Reuse as Solid Wastes

 The Resource Conservation and Recovery Act ("RCRA") provides EPA with regulatory jurisdiction over solid wastes. The proposed rule would establish a new regulatory requirement for used, intact CRTs that are being exported for reuse. CEA and CERC oppose the proposed requirement that would establish an annual reporting requirement for exporters of used, intact CRTs that are sent for reuse because such materials are not solid wastes and, therefore, not subject to EPA's regulatory jurisdiction.

 In the preamble to the original proposed CRT rule, issued in June 2002, EPA stated:

       "EPA is today clarifying that we do not consider a user sending a CRT to a reseller for potential reuse to be a RCRA generator. Furthermore, EPA today clarifies that used CRTs undergoing repairs before resale or distribution are not being "reclaimed" and are considered to be products "in use" rather than solid wastes" (67 FR 40508 at 40511).

The final CRT rule, published in July 2006, reiterated that "used intact CRTs exported for reuse are not solid wastes" (71 FR 42928 at 42929). The final rule, however, established a one-time notification requirement for CRT exporters that ship used intact CRTs for reuse. In the preamble to the final rule, EPA wrote:

       The Agency notes that intact CRTs exported for reuse are identical in appearance to those exported for recycling. Consequently, to help ensure that the intact CRTs are actually reused abroad, we are requiring persons who export used, intact CRTs for reuse to submit a one-time notification to the Regional Administrator.These notifications will allow regulatory authorities to contact the notifier, when appropriate, to ask for verification that the CRTs are exported for reuse instead of recycling or disposal... We believe that our right to require such basic notification is inherent in our authority to regulate discarded materials, and in our RCRA section 3007 authority to obtain information pertaining to materials that may become solid or hazardous wastes. Because a one-time notification is adequate to give the Regional Administrator notice about persons who are exporting for reuse, additional notifications are not necessary each time CRTs are exported for this purpose (emphasis added) (Ibid at 42939).

Although it could be argued that the one-time export notification requirement represents an impermissible exercise of EPA authority over products, which even the EPA acknowledges are not "solid wastes," the proposed rule further expands EPA's regulatory jurisdiction over such commodities. A one-time notification to the Regional Administrator may be adequate and reasonable; an annual notification is certainly not. An annual notification requirement for used intact CRTs that are being shipped for reuse constitutes the same burden as an annual notification requirement for CRTs that are being shipped for recycling. CEA and CERC object to the proposed rule which would treat used CRTs that are being shipped for reuse in the same manner as CRTs that are being shipped for recycling. Applying the same regulatory requirements to "products" that are imposed on "wastes" fails to recognize the differences between these two material streams and is also inconsistent with EPA's regulatory authority.

Furthermore, a regulatory requirement that CRT exporters provide annual notification of the shipment of used intact CRTs that are destined for reuse will not address EPA's concern regarding the improper recycling or disposal of CRT materials. Rather, it could discourage their reuse and refurbishment. There may be no incentive to reuse and refurbish CRT products if they are subject to the same export notification provisions as CRTs that are being shipped for recycling. If EPA wants to provide assurance that CRTs that are exported are managed properly in overseas markets, it will need to engage in those countries and work in partnership with those markets to address regulatory gaps or enforcement weaknesses contained in their laws.

 CEA and CERC recommend that EPA work with stakeholders to determine criteria that the Agency could use to determine when used intact CRTs resemble a "solid waste" versus when they resemble a commodity. The criteria might include packaging (e.g., whole, intact monitors that are properly packaged to prevent damage or facilitate resale are typically consistent with intended reuse), resale value (e.g., ability to demonstrate that payment will be received for materials), contractual provisions (e.g., guarantee that the receiving party has the capacity to repair or refurbish the product and properly recycle any by-products), and shipping manifests that are consistent with intended reuse. Simply characterizing all shipments of used intact CRTs that are shipped for reuse represents an impermissible overreach of regulatory authority over products which could discourage their legitimate reuse.

       (5) CRT Should be Revised to Include Plasma Glass

 CEA and CERC have been informed that the California Department of Toxic Substances Control ("DTSC") recently evaluated plasma glass television and video display panels and determined they may exhibit hazardous waste characteristics due to the presence of lead.1 Because plasma glass is not regulated as a "universal waste," it is not eligible for alternative management standards that apply to CRT glass. Although the data in the California DTSC evaluation was based on 2004 models and, since that time, many companies have switched to lead-free plasma display panels, the addition of plasma glass to the CRT rule would encourage the recycling of plasma televisions and display panels.

 Conclusion

 CEA and CERC are concerned that the proposed rule will unfairly and improperly impose CRT export notification obligations and liabilities on intermediaries that lack the knowledge, the means, and the ability to fully discharge the CRT export notification requirements. CEA and CERC urge EPA to better define the term "CRT exporter" so that the entities that possess the direct knowledge and intent are held responsible for CRT export notification requirements. CEA and CERC are also concerned that the proposed rule would establish new regulatory controls over CRT products that are intended for reuse. CEA and CERC urge EPA to maintain the current one- time report for such products. CEA and CERC greatly appreciate this opportunity to provide its members' comments on the Agency's proposed CRT rule. We look forward to working with the EPA to address the industry's concerns.

 The Consumer Electronics Association (CEA) is a U.S. based trade association that represents more than 2,000 companies involved in the design, development, manufacturing, distribution and integration of audio, video, in-vehicle electronics, wireless and landline communications, information technology, home networking, multimedia and accessory products, as well as related services that are sold through consumer channels. CEA also sponsors and manages the International CES  -  The Global Stage for Innovation  -  the largest annual trade event in the U.S. (www.ce.org)

 Contact: Walter Alcorn
 Vice President, Environmental Affairs and Industry Sustainability
 703-907-7765 walcorn@ce.org

 The Consumer Electronics Retailers Coalition (CERC) is a not-for-profit public policy organization that includes major specialist and general retailers of consumer electronics products, and retailer associations. CERC was established in 1991 as an informal coalition and incorporated in 2003. CERC's members include Amazon.com, Inc., Best Buy Co., Inc., RadioShack Corporation, Sears Holdings Corporation, Target Corporation, and Wal-Mart Stores, Inc.

 Contact:
 Robert Schwartz
 Legal Counsel
 202-204-3508
 RSchwartz@constantinecannon.com


EPA Response

In response to CEA and CERC's comments in section (1) Proposed Definition of "CRT Exporter" Must Include an Actual Knowledge Component
EPA agrees with CEA and CERC that the Agency could better clarify the definition of CRT exporter. EPA has thus added further discussion and examples to the final rule to better explain the definition of CRT exporter. 

As noted previously, the trade of used electronics can take place along a chain of businesses that collect, refurbish, dismantle, recycle, and reprocess used electronic products and their components. When used CRTs are exported for recycling or reuse, there may be several persons involved from the time that a decision is made to export these materials up to the time that the actual export occurs. EPA has concluded that the language of the definition appropriately defines those entities who are responsible for fulfilling the exporter duties, including "any person... who initiates a transaction" to export used CRTs or "any intermediary...arranging for such export." EPA does not agree that this would include entities that have no knowledge of the export since presumably these entities would neither be "initiating a transaction" or "arranging for such export." 

EPA modeled today's definition of "CRT exporter" on the definition of "primary exporter" of hazardous waste in § 262.51. Thus, EPA believes the reference to "any intermediary" is important to maintain consistent accountability throughout the RCRA export regulations.

As an example of how the definition would apply, a state may contract with a recycling facility to collect and recycle used electronics, including used CRTs. The recycling facility makes the decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also makes the decision whether to reuse or recycle the CRTs domestically or whether to export the used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling facility, are not involved in the decision-making to export certain CRTs and are not initiating a transaction to export, or arranging for export. Thus, these entities would not be considered a "CRT exporter" and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the recycling facility is making the decision to export certain CRTs and is thus initiating a transaction to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, both the recycling facility (which initiated the export) and the broker (who arranged for the export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has collected CRTs and is storing them on site. In this case, the electronic recycler determines how the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic recycler also initiates the transaction to export by partnering with a broker to find foreign entities that can reuse or recycle the CRTs abroad -- that is, the broker acts as an intermediary and makes arrangements for the export of used CRTs by soliciting and evaluating bids from foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing or receiving information from the broker and packaging and preparing the used CRTs for transport across international boundaries. Therefore, both the electronic recycler and the broker are CRT exporters. 

In response to CEA and CERC's comments in section (2) Inclusion of Intermediaries in Proposed Definition of "CRT Exporter" Would Confuse Export Notification Obligations
EPA has concluded that the language of the definition appropriately defines those entities who are responsible for fulfilling the exporter duties, including "any person... who initiates a transaction" to export used CRTs or "any intermediary...arranging for such export."
Additionally, EPA has added preamble discussion, including examples, to better clarify who would be considered a "CRT exporter" for purposes of the rulemaking (see above response to section 1) as an initiator or as an intermediary. 

EPA does not agree with CEA and CERC's comment that the definition of "CRT exporter" may produce an unintended consequence of allowing entities that directly export used CRTs to shirk their export notification responsibilities since, under the proposal, other entities would be equally responsible. In fact, EPA believes the opposite is true. Because EPA considers all entities that meet the definition of CRT exporter to be held jointly and severally liable under RCRA if they fail to fulfill the notice condition, among other conditions, of the CRT rule, EPA believes this provides sufficient incentive for all involved parties to ensure the conditions of the CRT final rule are met. 

In response to CEA and CERC's comments in section (3) Proposed Definition of "CRT Exporter" Would Improperly Impose "Joint and Several" Liability on All Intermediaries
As noted previously, the trade of used electronics can take place along a chain of businesses that collect, refurbish, dismantle, recycle, and reprocess used electronic products and their components. When used CRTs are exported for recycling or reuse, there may be several persons involved from the time that a decision is made to export these materials up to the time that the actual export occurs  -  all of whom could be a CRT exporter. EPA has concluded that the language of the definition appropriately defines those entities who are responsible for fulfilling the exporter duties, including "any person... who initiates a transaction" to export used CRTs or "any intermediary...arranging for such export." 

EPA has added preamble discussion, including examples, to better clarify who would be considered a "CRT exporter" for purposes of the rulemaking (see above response to section 1). 

Additionally, EPA modeled today's definition of "CRT exporter" on the definition of "primary exporter" of hazardous waste in § 262.51. Thus, EPA believes the reference to "any intermediary" is important to maintain consistent accountability throughout the RCRA export regulations.

In response to CEA and CERC's comments in section (4) Proposed Rule Would Improperly Regulate CRTs that are Sent for Reuse as Solid Wastes
EPA disagrees with CEA and CERC's comments that argued that the revisions to the notification for used CRTs exported for reuse exceed EPA's authority under RCRA. In fact, EPA has concluded that our authority to request such information is inherent in our authority to determine whether a material is discarded.  

The Agency notes that used, intact CRTs exported for reuse can be identical in appearance to those exported for recycling. In addition, information in the record, both for this rulemaking and for the 2006 CRT rulemaking, shows that exported electronics for alleged reuse may not in fact be handled as valuable commodities in foreign countries. Consequently, EPA has determined that the information required in today's notification is necessary to help ensure that the used, intact CRTs are actually reused abroad, and are not recycled (or disposed).

We consider the specific information required in today's notification to be the minimum information needed to enable credible evaluation of the status of hazardous secondary materials under section 3007 of RCRA and to ensure proper management of these materials. EPA further believes that RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). Section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. 

The intent of this notification is to provide basic information to EPA about who will be exporting used, intact CRTs for reuse. The specific information included in the notification will enable regulatory agencies to monitor compliance adequately and to ensure used, intact CRTs are reused and not discarded. The information will enable better reporting by EPA in response to information requests from receiving countries and other interested parties regarding exports of used, intact CRTs for reuse. This information will, in turn, enable effective compliance monitoring by EPA and in those countries which receive such CRTs for reuse, which decreases the risk of potential mismanagement of the materials.

Further, EPA does not agree that the revised notice for CRTs exported for reuse will discourage reuse and refurbishment because EPA considers the additional burden of completing the revised notice to be minimal. Moreover, EPA notes that the export notice for CRTs exported for reuse is not the same as the export notice for CRTs exported for recycling in that CRTs exported for recycling must obtain consent from the importing country. EPA agrees with CEA and CERC that ensuring used CRTs exported for reuse are managed properly when sent abroad requires effective engagement with importing countries. Thus, finalizing changes to the notice for used CRTs exported for reuse in order to collect more specific information, such as destination facilities, transit countries, and quantities of used CRTs, will enable EPA to better respond to requests for this information from foreign countries.

EPA acknowledges CEA and CERC's recommendation that EPA work with stakeholders to determine criteria that the Agency could use to determine when used, intact CRTs resemble a "solid waste." However, at this time, EPA believes the final rule appropriately defines conditions for used, intact CRTs that are exported for reuse.

In response to CEA and CERC's comments in section (5) CRT Should be Revised to Include Plasma Glass
EPA acknowledges CEA and CERC's comment that stated EPA should add plasma glass to the CRT rule. Plasma glass, however, is outside the scope of the rulemaking.
In response to CEA and CERC's comments in the Conclusion section.
EPA has added further discussion and examples to the preamble to better explain the definition of CRT exporter and thus EPA believes this will address CEA and CERC's concerns that the proposed rule will impose CRT export duties onto intermediaries that do not fit the definition of CRT exporter.
EPA does not agree with maintaining the one-time notice for used CRTs exported for reuse. Currently, the notification for CRTs exported for reuse contains minimal information: name, address, and EPA ID (if applicable), the name and phone number of a contact person for the exporter, and a statement that the notifier plans to export used, intact CRTs for reuse. The current notification has been inadequate because it provides no information regarding where the used, intact CRTs are being exported for reuse, which hinders EPA's ability to share information with the receiving country if there is an issue with the export, which, in turn, inhibits the receiving country's ability to ensure safe management of the CRTs. Furthermore, the one-time nature of the notice provides no assurance that the information collected over time will accurately reflect entities that are exporting CRTs for reuse, which greatly hinders use of the data for compliance monitoring and reporting purposes.







Institute of Scrap Recycling Industries (ISRI)
Comment

May 14, 2012

The Institute of Scrap Recycling Industries, Inc. ("ISRI") is pleased to submit these comments on EPA's proposed Revision to the Export Provisions of the Cathode Ray Tube (CRT) Rule, 77 Fed. Reg. 15336 (Docket ID No. EPA - HQ - RCRA - 2011 - 1014, March 15, 2012). ISRI represents more than 1,600 private, for-profit companies at more than 7,000 facilities throughout the United States that process, broker, and consume scrap commodities, including metals, paper, plastics, glass, rubber, electronics, and textiles. ISRI provides education, advocacy, and compliance training, and promotes public awareness of the value and importance of recycling to the production of the world's goods and services. During 2011, the latest year with complete figures, the $100 billion U.S. scrap recycling industry directly employed more than 130,000 people and processed more than 130 million metric tons of scrap materials bought and used by industrial consumers in the U.S. and in more than 160 countries worldwide, conserving impressive amounts of energy and natural resources and minimizing environmental emissions associated with production of the world's goods and services.


I. Introduction


EPA's proposal to impose additional requirements on used and functioning CRTs that are being exported for use is an unlawful effort to regulate products that have not been "discarded" and over which EPA has no RCRA jurisdiction. EPA proposes to regulate virtually every step of the movement of functional CRTs through international commerce, requiring documentation identifying the frequency of sales, all points of entry and departure around the globe through the entire chain of commerce, and the identity of the eventual user of the CRTs. Congress did not authorize EPA to use RCRA to so intrude into transactions involving products.


II. EPA Does Not Have RCRA Jurisdiction Over Functioning CRTs Intended For Use


EPA's RCRA jurisdiction is "limited to materials that are `discarded' by virtue of being disposed of, abandoned, or thrown away." American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) ("AMC 1"). The D.C. Circuit later struck down an EPA rule that attempted to impose storage and other requirements on secondary materials destined for recycling, observing that the material EPA was seeking to regulate was "destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away''. Association of American Battery Recyclers v. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000) ("ABR"). Here, EPA seeks to go beyond what the courts have already rejected in these cases by extending its RCRA jurisdiction over fully functioning products that are sold for reuse, that are not secondary materials, and have not been "discarded, abandoned or thrown away."


EPA's proposal to impose regulatory burdens on exporters of useful products (in this case, CRTs) is a reprise of EPA's failed effort in ABR to impose a "conditional exclusion" on materials over which it does not have jurisdiction. Before EPA can impose RCRA requirements, it must first establish that it has jurisdiction over materials it intends to regulate. That is, EPA must first establish that the CRTs that it intends to regulate have been "discarded." Only then can EPA exercise RCRA jurisdiction over them.


Selling functioning products for use, whether new or used, is not the "discard" of "waste" over which EPA exercises RCRA jurisdiction. Selling a used car to the next user is not a "discard," nor is selling a used CRT. Indeed, the Federal Interagency Task Force on Electronics Stewardship, co-chaired by EPA, the Council on Environmental Quality and the General Services Administration, observed that "electronic devices sent for reuse for their original purpose (i.e., electronics sold or donated to be used again) are not 'waste' governed by RCRA." National Strategy for Electronics Stewardship (July 20, 2011) at p. 6. EPA itself has represented to courts that it does not have RCRA jurisdiction over products. Cordiano v. Metacon, 575 F.3d 199, 207 (2d Cir. 2009) (the U.S. filed an amicus in this case, which held that firing ammunition was not the "discard" of lead shot, stating "EPA has repeatedly stated that its regulatory jurisdiction under RCRA does not apply to products that are applied to the land in the ordinary manner of use, because such products are being used, not `abandoned.'"). Similarly, courts have held that the "sale of a useful product does not constitute the `handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste.'" U.S. v. Union Corp., 277 F. Supp. 2d 478, 491 ((E.D. Pa. 2003) (citations omitted). 


Since EPA does not have RCRA jurisdiction over the sale of useful products, it does not have RCRA jurisdiction over the sale of fully functioning used CRTs that are sold for reuse. Indeed, EPA is not proposing here to regulate, for example, the sale of used and functioning CRTs from stores in the U.S. The fact that a sale involves export does not transform it into a "discard": nothing in the definition of solid or hazardous waste suggests that the act of exporting is an attribute of "discarding," or that all used goods that are exported are being "discarded" should be presumed to be wastes unless demonstrated otherwise (and even then, under this proposal, remain under EPA's RCRA jurisdiction).


EPA attempts to justify this proposal on the grounds that it has become "aware that some CRTs allegedly exported for reuse are actually recycled in the receiving country, sometimes under unsafe conditions," and that the proposed regulations would "greatly improve tracking, and thus better management, of these CRTs that are claimed to be exported for reuse." 77 Fed. Reg. at 15339. If EPA is aware of entities that are violating existing regulations, it should enforce the regulations against those entities. Imposing additional regulations on the companies that comply with the law will not deter or catch the "bad actors." More fundamentally, EPA's justification reflects a misunderstanding of the Agency's RCRA jurisdiction. EPA does not have RCRA jurisdiction to regulate the movement in commerce of functioning products in order to enhance the management of such products. Nor does RCRA confer on EPA the authority to regulate functioning products before they are "discarded," on the ground that it is possible that such products might be "discarded" in the future. EPA's RCRA jurisdiction begins at the point of "discard" and not before.


Under EPA's theory of "anticipatory discard," it would have the authority under RCRA to regulate and track transactions involving fully functioning cars, appliances or any other products (used or new) on the grounds that EPA has evidence that such products can be found abandoned on the roadside, and that regulations are necessary to "greatly improve tracking, and thus better management," of these products so that they will not eventually be mismanaged. EPA's expansive view of its RCRA jurisdiction over functioning CRTs is reflected in this statement in the 2006 CRT rule:


We believe that our right to require such basic notification is inherent in our authority to regulate discarded materials, and in our RCRA section 3007 authority to obtain information pertaining to materials that may become solid or hazardous wastes.


71 Fed. Reg. 42928, 42939 (July 28, 2006) (emphasis added). EPA is suggesting that "inherent" in its RCRA authority to regulate "discarded" materials is the authority to regulate functional products that are not yet "discarded." This theory completely erases any distinction between materials that are and are not "discarded," and conflicts with the statute and case law. Further, EPA mischaracterizes its RCRA Section 3007 authority, which provides that:


For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this title, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the

Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes.


RCRA § 3007(a) (emphasis added). Thus, section 3007 authorizes EPA to seek information about "such wastes" (i.e., "hazardous wastes") and does not extend EPA's RCRA regulatory authority to all materials or products that may, at some point in the future, become a waste. The rationale proposed in this rule could be applied to justify the regulation under RCRA of the sale of fully functional products between a seller in Kansas and a buyer in Michigan. EPA does not have RCRA jurisdiction over functioning products just because it is possible that at some point in their life cycle, such products may be "discarded."


Thus, EPA is attempting to establish by regulation what Congress and the courts have not allowed: a presumption that all materials, including fully functioning products, have been "discarded" and can be subjected to RCRA regulations. Turning RCRA on its head, EPA's starting point appears to be that it has RCRA jurisdiction over everything that might eventually be discarded on the grounds that this is necessary to ensure proper waste management. Under this theory, the Agency would not have to prove that CRTs are "discarded" in order to assert its RCRA jurisdiction. To the contrary, placing fully functional CRTs in commerce, according to EPA, subjects them to RCRA, and companies would have to verify that the CRTs are indeed useful (and even then EPA would still retain its RCRA jurisdiction). This effort by EPA to extend its RCRA jurisdiction over functional products before they are "discarded" is contrary to law.


III. The Proposed Notification Requirements Are Too Burdensome


Even if EPA had RCRA jurisdiction over the export of fully functioning used CRTs intended for reuse, elements of the proposed notification are overly burdensome. In particular, EPA proposes that the notification include the following information:


All points of entry and departure to and departure from each transit country through which the CRTs will pass, a description of the approximate length of time the CRTs will remain in such country and the nature of their handling while there.


51 Fed. Reg. at 15343. The exporter might not know, and may not have control concerning, each transit country through which the CRTs might pass. The details of how the CRTs will be transported, including length of time spent in any particular country of transit, may vary during the transportation process itself, and may be under the control of the transporter, not the exporter. EPA also seeks the "name and address of the ultimate destination facility or facilities where the CRTs will be reused and the estimated quantity of CRTs to be sent to each facility." Id. This presumes that the destination facility of the shipment is the location where the functioning CRTs will be used. However, the destination facility might be a distribution or sales entity which sells the CRTs into the local market, but does not actually use them. In these cases, it should be sufficient to identify such entities, since it is not practical for the exporter to identify all of the potential customers who might purchase and use the CRTs.


IV. Conclusion


ISRI believes that EPA does not have the jurisdiction, under RCRA, to impose requirements on fully functioning used products, including CRTs, that are being exported and sold for reuse. EPA's RCRA jurisdiction begins at the time of "discard" and not before. Congress did not, when it enacted RCRA, grant EPA general authority to regulate transactions in the markets for used goods.


In closing, ISRI appreciates this opportunity to comment on EPA's proposed Revision to the
Export Provisions of the Cathode Ray Tube (CRT) Rule (Docket ID No. EPA - HQ - RCRA - 2011 - 
1014) and thanks EPA for its consideration of these comments. If there are any questions, I can be reached at 202-662-8533 or DavidWagger@isri.org.

Sincerely,



David L. Wagger, Ph.D.
Director of Environmental Management
Institute of Scrap Recycling Industries, Inc.
1615 L Street, NW, Suite 600
Washington, DC 20036-5610
TEL: 202-662-8533
FAX: 202-626-0933
e-mail: DavidWagger@isri.org

EPA Response

In response to ISRI's comments in section (I) Introduction, section (II) EPA Does Not Have RCRA Jurisdiction Over Functioning CRTs Intended for Reuse, and section (IV) Conclusion
EPA disagrees with ISRI's comments that argued that the revisions to the notification for used CRTs exported for reuse exceed EPA's authority under RCRA. In fact, EPA has concluded that our authority to request such information is inherent in our authority to determine whether a material is discarded.  

The Agency notes that used, intact CRTs exported for reuse can be identical in appearance to those exported for recycling. In addition, information in the record, both for this rulemaking and for the 2006 CRT rulemaking, shows that exported electronics for alleged reuse may not in fact be handled as valuable commodities in foreign countries. Consequently, EPA has determined that the information required in today's notification is necessary to help ensure that the used, intact CRTs are actually reused abroad, and are not recycled (or disposed).

We consider the specific information required in today's notification to be the minimum information needed to enable credible evaluation of the status of hazardous secondary materials under section 3007 of RCRA and to ensure proper management of these materials. EPA further believes that RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). Section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. 

The intent of this notification is to provide basic information to EPA about who will be exporting used, intact CRTs for reuse. The specific information included in the notification will enable regulatory agencies to monitor compliance adequately and to ensure used, intact CRTs are reused and not discarded. The information will enable better reporting by EPA in response to information requests from receiving countries and other interested parties regarding exports of used, intact CRTs for reuse. This information will, in turn, enable effective compliance monitoring by EPA and in those countries which receive such CRTs for reuse, which decreases the risk of potential mismanagement of the materials.

In response to ISRI's comments in section (III) The Proposed Notification Requirements Are Too Burdensome
Regarding the comment on transit countries, EPA understands that some uncertainty is inherent in a notification that estimates used, intact CRTs exported for reuse over a 12-month or lesser period. Though the CRT exporter may not know exact information about transportation activities that have yet to occur, including the time spent in each transit country, the Agency believes it is important that the CRT exporter provide this information to the best of its ability, in an effort to give the transit country (and EPA) information regarding such shipments. The Agency expects that the CRT exporter would have at least general knowledge with regard to anticipated shipment and arrival dates which would allow the exporter to estimate such information. However, CRT exporters can work with transporters to compile such information and develop reasonable estimates needed to complete the notification.

Regarding the ultimate destination facility, EPA agrees with ISRI that it is not practical for the exporter to identify all of the potential customers who might purchase and reuse the CRTs and, in fact, EPA is not looking for the CRT exporter to identify all potential customers in the export notification. Rather, when requiring the "ultimate destination facility or facilities where the CRTs will be reused," EPA means for CRT exporters to identify the facility or facilities that will be refurbishing the CRTs or receiving the CRTs to be distributed or sold for reuse. To clarify this issue, EPA has modified the language of the requirement to require "the name and address of the ultimate destination facility or facilities where the CRTs will be reused, refurbished, distributed or sold for reuse...."




Tennessee Valley Authority (TVA)
Comment

May 3, 2012

The Tennessee Valley Authority (TVA) appreciates the opportunity afforded by the U.S. environmental Protection Agency (EPA) to review and comment on the proposed rule for the "Revision to the Export Provisions of the Cathode Ray Tube (CRT) Rule" published In the Federal Register on March 15, 2012. As the nation's largest public power provider with stewardship responsibilities for land and water resources under the TVA Act, TVA supports the promulgation of rules and regulations that both minimize adverse environmental Impact associated with the management of recyclables as well as waste, and provide for a reliable and affordable supply of electric power for our customers in the Valley.

Although TVA does not have any policy issues with the proposed rule, we are requesting minor editorial changes to provide clarity. In section §260.10, the definition of "CRT exporter' is not clear. As written, the words "any person in the United States who initiates a transaction to send used CRTs outside the United States territories" could be interpreted to include generators and others who have no involvement with either the decision to export or the arrangements for export. TVA suggests that the definition be revised to make clear that generators and others involved In the collection process do not become a CRT exporter unless they either make the decision to export or participate In making the arrangements for export.

We believe this clarification would be consistent with EPA's intended purpose for the rule and eliminate a possible source of confusion. Clarification of this point is especially Important given EPA's stated intention to hold all parties jointly and severally liable for falling to comply with the exporter requirements.

TVA would like to thank EPA in advance for the consideration of the enclosed comments related to the Information in the docket supporting this Notice, EPA-HQ-RCRA-2011-1014. If you have questions please contact me at the above address.

John W. Myers, Director
Environmental Policy and Regulatory Affairs

EPA Response

EPA agrees with TVA that the Agency could better clarify the definition of CRT exporter. EPA has thus added further discussion and examples to the final rule to better explain the definition of CRT exporter.

As noted previously, the trade of used electronics can take place along a chain of businesses that collect, refurbish, dismantle, recycle, and reprocess used electronic products and their components. When used CRTs are exported for recycling or reuse, there may be several persons involved from the time that a decision is made to export these materials up to the time that the actual export occurs. EPA has concluded that the language of the definition appropriately defines those entities who are responsible for fulfilling the exporter duties, including "any person... who initiates a transaction" to export used CRTs or "any intermediary...arranging for such export." EPA does not agree that this would include entities that have no knowledge of the export since presumably these entities would neither be "initiating a transaction" or "arranging for such export." 

As an example of how the definition would apply, a state may contract with a recycling facility to collect and recycle used electronics, including used CRTs. The recycling facility makes the decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also makes the decision whether to reuse or recycle the CRTs domestically or whether to export the used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling facility, are not involved in the decision-making to export certain CRTs and are not initiating a transaction to export, or arranging for export. Thus, these entities would not be considered a "CRT exporter" and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the recycling facility is making the decision to export certain CRTs and is thus initiating a transaction to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, both the recycling facility (which initiated the export) and the broker (who arranged for the export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has collected CRTs and is storing them on site. In this case, the electronic recycler determines how the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic recycler also initiates the transaction to export by partnering with a broker to find foreign entities that can reuse or recycle the CRTs abroad -- that is, the broker acts as an intermediary and makes arrangements for the export of used CRTs by soliciting and evaluating bids from foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing or receiving information from the broker and packaging and preparing the used CRTs for transport across international boundaries. Therefore, both the electronic recycler and the broker are CRT exporters.


Waste Management (WM)
 
Comment
 
May 29, 2012

Waste Management (WM) is pleased to submit our comments to the proposed CRT Rule Changes as proposed.

Waste Management is North America's leading provider of integrated environmental solutions. We partner with our customers and communities to manage and reduce waste from collection to disposal while recovering valuable resources and creating clean, renewable energy. WM uses waste to create enough energy to power more than a million homes every year through our more than 120 landfill-gas- to-energy projects and our 17 waste-to-energy plants. As North America's largest recycler, Waste Management recycled or reused more than 12.9 million tons of recyclable commodities last year. In its expanding role as a materials management company, WM is working to extract the highest value from the resources we manage including food and green wastes in municipal solid waste (MSW). Through WM Recycle America eCycling Services, we are recognized as a leader in e-waste recycling. We have seven processing plants strategically placed around the country (Denver, CO; Austin, TX; Mira Loma, CA; Tigard, OR; Milwaukee, WI; Minneapolis, MN; and Springfield, MA) and collect e-waste from over 265 collection depots. See our 2011 Sustainability Report Update (http://www.wm.com/sustainability/index.jsp) for more details.


WM offers the following in response to the proposed rules by section:


1. Definition of "CRT Exporter."

The federal government is proposing to add the definition of "CRT Exporter" to 40 CFR 260.10. The new definition states "that a CRT Exporter is any person in the United States who initiates a transaction to send used CRTs outside the US or its territories for recycling or reuse, or any intermediary in the US arranging for such export." This definition is modeled on the definition of "primary exporter" of hazardous waste in 40 CFR 260.10. As such, Waste Management is not opposed to this addition.

2. Proposed changes to the Notification Required for Used CRTs Sent for Recycling.

The federal government is proposing to add a requirement (40 CFR 261.399(a)(5)(x)) to require
annual reports from exporters of used CRTs sent for recycling. Under the proposed rule, the exporter must provide, no later than March 1 of each year, a report summarizing the quantities (in kilograms), frequency of shipment, and ultimate destination(s) of all CRTs exported for recycling during the previous calendar year. EPA seeks info whether the information requested is enough to determine the actual quantity of CRTs that are exported in a given year.

In addition, EPA is proposes an additional change to the notice requirement for CRTs exported for recycling. The current notice (40 CFR 261.39(a)(5)(i)(F)) requires the exporter to state the name and address of the recycler and alternate recycler. A change in language is requested to state the name and address of the recycler or recyclers and the estimated quantities sent to each facility as well as the alternate recycler.

WM currently provides advance notice to EPA on exports of CRTs for recycling and we have a robust system for tracking our shipments we, therefore are not opposed to this change. However, we ask EPA to consider an alternate workflow or streamlined reporting mechanism for companies that are certified under both R2 and e-Stewards. Such a streamlined reporting mechanism could provide an incentive to become a certified recycler.

3. Proposed changes to the Notification Required for Used, Intact CRTs Exported for Reuse.

WM supports these changes as well, but would also ask EPA to again consider a streamlined mechanism for companies that are R2 and e-Stewards certified.

4. Bare CRTs.

EPA solicits comments on whether "bare" CRTs removed from the plastic housing whose vacuum has not been released are likely to be exported for recycling rather than reuse and whether the regulation needs to be modified to reflect this situation. Given the state of CRT glass recycling today and the prospects for the future, any proposed rule changes should be flexible enough to allow for a recycler to determine the end use the "bare" CRT and not be bound by one or the other.

Lastly, WM recommends EPA consider working with industry on alternative treatment rules for CRTs and flat screen monitors. This is extremely important given the state of CRT glass and monitor glass reuse and recycling around the world today.

We would be pleased to discuss our responses in further detail. If you have any questions please contact me at 713-328-7003. 

Sincerely,

Richard Abramowitz Director of Public Affairs Waste Management
713-328-7003
214-616-2371(c)
EPA Response

In response to WM's comments in section (1) Definition of "CRT Exporter" 

EPA agrees with WM's comments that did not oppose codifying the definition of "CRT Exporter." Therefore, EPA has included the definition in the final rule.

In response to WM's comments in section (2) Proposed changes to the Notification Required for Used CRTs Sent for Recycling

EPA agrees with WM's comments that did not oppose the proposed changes to the notice for used CRTs exported for recycling. Therefore, EPA has finalized these revisions in the final rule. 

EPA acknowledges WM's comments that EPA consider a streamlined reporting mechanism for companies that are certified under both R2 and e-Stewards. However, this consideration is outside the scope of this specific rulemaking.

In response to WM's comments in section (3) Proposed changes to the Notification Required for Used, Intact CRTs Exported for Reuse

EPA agrees with WM's comments that did not oppose the proposed changes to the notice for used CRTs exported for reuse. Therefore, EPA has finalized these revisions in the final rule. 

EPA acknowledges WM's comments that EPA consider a streamlined reporting mechanism for companies that are certified under both R2 and e-Stewards. However, this consideration is outside the scope of this specific rulemaking.

In response to WM's comments in section (4) Bare CRTs

EPA is not making any regulatory changes pertaining to the issue of "bare" CRTs. Upon further consideration, EPA continues to believe that "bare" CRTs (meaning intact CRTs that are removed from the monitor while the vacuum is still intact) are more product-like than waste-like, that is, bare CRTs more closely resemble functional CRTs as opposed to broken CRTs or CRTs that must be recycled. Therefore, if "bare" CRTs are exported for reuse, they would not be considered subject to the export conditions of § 261.39(a)(5) (export provisions for CRTs exported for recycling), but rather would be subject to the export requirements of § 261.41 (export provisions for CRTs exported for reuse).

EPA acknowledges WM's recommendation that EPA consider working with industry on alternative treatment rules for CRTs and flat screen monitors. However, this recommendation is outside the scope of this specific rulemaking.
