E-Waste Regulation Under the RCRA

According to the Environmental Protection Agency (EPA), of the 370 million units of TVs, cell phones, and computer products that became ready for end-of-life management in 2007,  only eighteen percent was collected for recycling, while the rest was disposed of primarily in landfills.[1]  Although electronic waste (e-waste) currently accounts for less than ten percent of the solid waste stream, it is an issue that demands public attention for two reasons: (1) e-waste is the fastest growing category of solid waste, increasing at a rate of two to three times more than other municipal waste;[2] and (2) e-waste has the potential of impacting the environment profoundly because electronic devices contain hazardous materials that could leach into groundwater when disposed of in landfills or pollute the air when incarcerated.[3]  However, the federal government thus far has not taken a strong stance in either requiring the recycling of used electronics or in regulating the disposal of electronics containing hazardous waste.[4]

The only federal legislation to date that regulates e-waste disposal is the Resource Conservation Recovery Act (RCRA),[5] which places restriction on the disposal of only one type of electronic device–used cathode ray tubes (CRTs).[6]   Besides its limited application to e-waste disposal, the RCRA is ineffective in regulating e-waste disposal because of the many exemptions and exclusions built into the regulation.[7]  The RCRA generally exempts households and small businesses from its regulations. [8]  In other words, individual consumers and small businesses are free to dispose of used electronics in landfills. [9]  Large businesses can also get an exemption under the RCRA if their used electronics contain reusable or recyclable components because such electronics are classified as commodity, rather than waste.[10]  What this means is that a business can avoid liability under RCRA regardless of the amount of e-waste it generates if it sends its used electronics for reuse or recycling.  This would not have been a problem if not for the fact that electronic recyclers are similarly not regulated by RCRA unless they create separate hazardous wastes during the recycling or disassembly process.[11]  Because the vast majority of the used electronics are sold to foreign recycling processors before the recycling or disassembly process, the exported used electronics are classified as commodity rather than as hazardous wastes regulated by the RCRA.[12]   What this means is that electronics shipped by recyclers overseas often do not fall under the RCRA’s requirement that the recycler provide prior notification of shipment to EPA and obtain consent from the receiving nation of the waste, [13] and the EPA thus cannot determine whether the exports of e-waste are actually being recycled or not.[14]   Therefore, under the RCRA, a loophole exists whereby electronics generated in the United States containing hazardous waste could in fact fall outside the reach of any federal regulation.[15]

– Kammy Lai, Associate 

[1] Statistics on the Management of Used and End-of-Life Electronics, EPA (Dec 2, 2010) [hereinafter End-of-Life Electronics], http://www.epa.gov/osw/conserve/materials/ecycling/manage.htm. See also E-Waste Problem Overview, Electronics TakeBack Coalition, http://www.computertakeback.com/problem/problem_index2.htm (last visited Apr. 2, 2011) (noting that recycling industry experts estimate that consumers dispose of 400 million units of electronics per year).

[2] eCycling, EPA (Feb. 9, 2011), http://www.epa.gov/region7/ecycling/index.htm.

[3] E-Waste Problem Overview, Electronics TakeBack Coalition, http://www.computertakeback.com/problem/problem_index2.htm (last visited Apr. 2, 2011).

[4] Because of this lack of federal action, increasingly more states have implemented legislations to regulate the disposal of e-waste.  The twenty five states that have implemented such e-waste legislations include California, Maine, Maryland, Washington, Connecticut, Minnesota, Oregon, Texas, North Carolina, New Jersey, Oklahoma, Virginia, West Virginia, Missouri, Hawaii, Rhode Island, Illinois, Michigan, Indiana, Wisconsin, Vermont, South Carolina, New York, Pennsylvania, and Uta.  See Laws, national Center for Electronics Recycling [hereinafter National Center for Electronics Recycling], available at http://www.electronicsrecycling.org/public/ContentPage.aspx?pageid=14 (last visited Apr. 3, 2011).

[5] See 42 U.S.C. §§ 6901-6991 (2006).  

[6] See EPA Needs to Better Control Harmful U.S. Exports Through Stronger Enforcement and More Comprehensive Regulation, GAO, 2 (Aug. 28, 2008) [hereinafter Harmful U.S. Exports], available at http://www.gao.gov/new.items/d081044.pdf.

[7] An attorney at the EPA stated at a presentation that the exemptions and exclusions allowed under RCRA essentially mean that the EPA does not regulate electronic as hazardous waste.  See Bob Tonetti, US EPA’s Regulatory Framework for “E-Waste” (Dec. 2007), 3, available at http://www.epa.gov/osw/conserve/materials/ecyclingy/confernce/tonetti/frame-script.pdf.

[8] See 40 C.F.R. § 261.4(b)(1) (2004) (providing household exclusion) and 40 C.F.R. § 261.5(f)(3) (2004) (providing exemption for companies producing less than 220 pounds of hazardous waste per month).  See also Linda Luther, Managing Electronic Waste: An Analysis of State E-Waste Legislation, 1 (2007), available at http://www.ncseonline.org/NLE/CRSreports/08Mar/RL34147.pdf (noting that households and small businesses are essentially exempt from RCRA regulations).

[9] Some states have bypassed this exemption by imposing a general ban of e-waste disposal in landfills.  However, there are only twelve states with such bans, including Connecticut, Minnesota, New Jersey, Pennsylvania (by 2012), Rhode Island, Wisconsin, Arkansas, Massachusetts, South Carolina, Vermont and New Hampshire, New York (by April 1, 2011 for manufacturers, retailers and waste handlers, and effective as of 2012 for consumers).  See Laws, national Center for Electronics Recycling, available at http://www.electronicsrecycling.org/public/ContentPage.aspx?pageid=14 (last visited Apr. 3, 2011).

[10] Robert Tonetti, EPA’s Regulatory Program for “E-Waste” (Oct. 2007), available at http://www.epa.gov/osw/conserve/materials/ecycling/docs/e-wasteregs.pdf.

[11] Maya Abela & Jacob Campbell, E-Wasted Time: The Hazardous Lag in Comprehensive Regulation of the Electronics Recycling Industry in the United States, Univ. of Ariz. Envtl. Pol’y Working Papers 8 (June 2010), available at http://http://www.greenbiz.com/sites/default/files/udall.center_epwp_abaya&campbell_june2010.pdf.

[12] Id. at 8.  See also Electronics Waste Management in the United States: Approach 1, EPA, 28 (July 2008), available at http://www.epa.gov/waste/conserve/materials/ecycling/docs/app-1.pdf.

[13] See 42 U.S.C. § 6938 (2006).

[14] EPA Needs to Better Control Harmful U.S. Exports Through Stronger Enforcement and More Comprehensive Regulation, GAO, 22 (Aug. 28, 2008) [hereinafter Harmful U.S. Exports] (noting that under the RCRA “exporters can ship most types of used electronic products, such as computers, printers, and cell phones, without restriction”), available at http://www.gao.gov/new.items/d081044.pdf.

[15] E-Wasted Time, supra note 11, at 8.

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