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Legal and Policy Challenges for E-Waste Management in the U.S.

  • Writer: Adrian Brown
    Adrian Brown
  • Jun 8, 2019
  • 11 min read

Introduction

Over 720 million new electronic products were sold in the U.S. in 2014 and 3.36 million tons of used electronics were ready for end-of-life management[1]. According to the U.S. EPA (hereafter referred to “EPA”), “electronic waste”, “e-waste”, “e-scrap” and “end-of-life electronics” are the terms often used to describe used electronic products at or near their useful life that are discarded, donated or given to a recycler. The advent of new, remodeled or upgraded electronic devices, e.g., smart phones, often leads to the redundancy or disposal of older versions (Fowler, 2017). Refurbishing may extend the life of electronics but there are often problems keeping up with outdated software and/or technologies. Moreover, older version electronics may be beyond repair due to circuit board issues and wiring. E-waste contains toxic components, precious metals and rare earth metals. It is often recycled in developing countries where valuable components (gold, copper, gallium, indium) are recovered / recycled and remaining waste are burned or buried (Fowler, 2017). Discarded electronics often end up on container ships destined for developing countries such as Nigeria, Pakistan, Bangladesh, India and China. E-waste from the Europe is mostly shipped to Pakistan, Bangladesh and India, and e-waste from the U.S. is mostly shipped to China (Fowler, 2017). In July 2017 when China notified[2] the World Trade Organization of its intent to restrict the import of 24 kinds of solid waste “to protect China's environmental interests and people's health,” the notification excluded e-waste.


Strict environmental laws and regulations in high income countries along with the low purchasing power of consumers in developing countries create incentives for the e-waste trade from high income countries to emerging economies (Dato, 2017). There is money to be made from recovering e-waste from poor socio-economic conditions because precious metals can be procured at lower labor costs (Purchase, 2017). The U.S. EPA on its website acknowledges the serious concern about the unsafe handling of used electronics and e-waste in developing countries that results in harm to human health and the environment[3]. Yet to date, the U.S. along with Haiti and Afghanistan, have not ratified the Basel Convention, the primary international treaty which regulates the e-waste market (Little et al., 2017). The U.S. is the world’s largest volume generator and exporter of e-waste (Little et al., 2017). The Resource Conservation and Recovery Act (RCRA), the primary hazardous waste law in the U.S., which regulates hazardous waste “from cradle the grave” do not ban the export of electronic waste to countries which are not a part of the Organization for Economic Co-operation and Development (referred to as “non-OECD countries”). This omission raises global environmental justice concerns with regard to e-waste exports from the U.S.


The Resource Conservation and Recovery Act


The Resource Conservation and Recovery Act (RCRA) was enacted by Congress in 1976 and was amended with the Hazardous and Solid Waste Amendments of 1984. RCRA stresses recovery and reuse of materials (recycling) over disposal. A major requirement of RCRA is that generators of hazardous waste are responsible from “cradle to grave” for the waste they produce. In order for a material to be classified as hazardous waste it must be a “solid waste” and something that is being “discarded.” Waste are identified as hazardous by either analytical testing or process knowledge. RCRA identifies hazardous waste as either “characteristic” or “listed”. The responsibility to properly characterize hazardous waste rests with the generator. RCRA is complex as it is far-reaching. The “cradle to grave” provision holds the generator of hazardous waste liable for improper disposal even though it may be shown that the waste was mishandled by the actions of a third party.


The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal


The U.S. was a signatory to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (hereafter referred to the “Basel Convention”) in 1990. The Basel Convention was the first international treaty to regulate the movement of hazardous waste across national borders. It was developed amid scandals of illicit shipments of hazardous waste to unsuspecting developing countries (Yang, et al., 2017). Probably the most notorious case was the dumping of thousands of drums of hazardous chemical waste in Koko, Nigeria in 1988. The waste was repatriated to Italy amid public outcry. However, the Nigerian workers involved in the waste removal suffered from injuries including chemical burns, nausea, and partial paralysis (Yang, et al., 2017). In 1990, the George H.W Bush Administration indicated that it would seek legislation prior to the ratification of the Basel Convention (Yang et al., 2017). Federal legislation was needed to expand the regulatory authority of the EPA to include "authority to prohibit shipments when the United States has reason to believe that the wastes will not be handled in an environmentally sound manner." (Yang et al., 2017). Furthermore, a legislative act of Congress is needed to cover household hazardous waste and other wastes considered hazardous under the Convention but not under RCRA. The Senate gave its advice and consent in August 1992 but Congress did not enact the required implementing legislation.


Third Party E-Waste Certification Programs – e-Stewards and Responsible Recycling (R2)


The e-Stewards Standard for Responsible Recycling and Reuse of Electronic Equipment (hereafter referred to as the “e-Stewards Standard) initiative was founded in 2003 as a non-governmental environmental management organization by the Basel Action Network. The main intent of the e-Stewards Standard was to ban any export of toxic e-waste to developing countries[4]. The e-Stewards Standard incorporates the requirement of the International Organization for Standardization’s ISO 14001 Standard for Environmental Management Systems (EMS). The e-Stewards website[5] includes a mapping feature where certified e-waste recyclers can be located based on country, city or zip code.


The e-Stewards Standard is referenced on the EPA’s website as one of the two accredited recycling standards with the other being the Responsible Recycling (“R2”) Standard for Electronics Recyclers.


EPA’s Responsible Recycling (R2) Standard


Responsible Recycling (“R2”) Standard for Electronics Recyclers was developed after a multi-stakeholder process convened by the EPA. The development process took two years and when it was released in 2008, electronics repair and recycling facilities started to obtain certification. The 2013 version of R2 is the most current version at the time of the writing of this paper in September 2018. Sustainable Electronics Recycling International (SERI) was founded in 2010 as an American National Standards Institute (ANSI) accredited body to manage the R2 Standard.


One of the main criticisms of the R2 Standard is that it allows for the use of prison labor to dismantle components within the U.S. at e-waste recycling centers. The Basel Action Network (BAN) sees this as promoting environmental injustice (Little et al., 2017). Moreover, the R2 Standard does not prohibit the shipment of e-waste components to non-OECD countries. China is a non-OECD country and receives most of its e-waste imports from the U.S. The majority of the 35-member list of OECD countries[6] are considered to be high-income / developed.


Discussion


E-waste generated in American households are exempted from the provisions of EPA hazardous waste regulations under RCRA. The e-waste exemption at Title 40 of the Code of Federal Regulations Part 261.4 defines “household” and broadens the definition to include “single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas.” To date, the only federal EPA regulation that apply to e-waste is associated with cathode ray tubes (CRTs), which due to the presence of lead glass. The export of broken or unbroken CRTs to another country for recycling requires EPA notification and the receipt of written consent from the receiving country via the EPA before shipments can be made. Regrettably, since the CRT rule was introduced in 2006, the recycling of CRTs has plummeted and the demand for new CRTs has collapsed in favor of new flat panel technologies[7].With consumers shifting to more appealing flat screen televisions and other electronics, the cost to recycle CRTs rose. According to the EPA, some CRT processors and recyclers opted to store the leaded glass indefinitely rather than send it for recycling or disposal, which increases the risk of mismanagement and/or abandonment of CRTs. The only EPA regulation designed to protect public health and environment from the mismanagement of e-waste components failed to meet its intended goal.


However, the treasure hunt for the recovery of precious metals from e-waste is one of the fastest growing industries globally (Zeng et al., 2017). In 2012, Katharina Kummer Peiry, executive secretary of the Basel Convention is reported to have said that “one ton of obsolete mobile phones contains more gold than one ton of ore.” (Hogue, 2012). The consumer appetite for the latest cell phones and other electronic gadgets in the U.S. and other OECD countries is leading to more e-waste shipments to China. China is the world’s largest importer of e-waste and the most seriously polluted from illegal e-waste importation and informal recycling (Zeng et al., 2017).


Corporate Moral Leadership


It is commonplace to hear news reports of U.S. consumers waiting in long lines hours before the sale of the latest iPhone. In fact, it was reported[8] that the long consumer lines for the iPhone X at the starting price of $999 helped to push Apple, Inc’s stock price to a record high in November 2017. Apple, Inc affirms on its website that it meets the requirements of the Basel Convention, prohibits the use of prison labor, and the incineration and landfilling of e-waste. Furthermore, Apple states that: “All e-waste collected by Apple-controlled voluntary and regulatory programs worldwide is processed in the region in which it was collected.” However, there is no reference in Apple’s Recycler Requirement[9] for vendors to be certified to the rigorous e-Stewards Standard or even the less stringent R2 Standard. Corporations like Apple, Inc are directly involved in environmental policy-making. They have their own corporate environmental policies and are involved in lobbying legislatures and government agencies to shape laws and administrative rules for environmental policies. Corporations can have perpetual existence and the ability to influence the appointment of public officials who make and administer public policies. Corporations have been entrusted with much power and influence and should be expected and required to act responsibly, especially in matters of environmental justice.


Illegal shipments of e-waste occur not only because international regulations are weak but in part due to difficulty in identifying non-reusable e-waste on shipping papers and container labels (Dato, 2017). In a January 18, 2018 BAN e-Trash Transparency Project[10], where GPS tracking devices were placed inside electronic waste to find out what happens to them, six U.S. companies and the City of Houston were found to be exporter of e-waste to developing countries – Hong Kong, Pakistan and The Philippines. Three of the companies implicated were located in Texas, one in Georgia and two in Florida. The companies made public claims to not allow for the export of e-waste to developing countries; four of the six companies were certified to the R2 Standard.


Even though the Basel Convention was negotiated and signed under two Republican administrations, namely Ronald Reagan and George H.W. Bush, it has been in a state of limbo for ratification since 1992 (Yang et al., 2017). In the current Trump Administration, it is highly unlikely that Congress will enact legislation to ratify any international environmental treaty. The announcement of the decision by the Trump Administration on June 1, 2017 of its decision withdraw the U.S. from the 2015 Paris Climate Agreement pursuant to the “America First” agenda presents both a challenge and an opportunity for China to play a greater role in global environmental governance (Zhang et al., 2017). However, the last successful U.S. ratification of an international environmental treaty was the Montreal Protocol on Substances that Deplete the Ozone Layer. The implementing legislation for the Montreal Protocol has stood the test of time, even during the most recent repeals of Obama-era EPA regulations by the Trump administration.


The success story of the U.S. ratification of the Montreal Protocol and the implementing federal legislation with a tiered approach of the EPA rules demonstrate that there is hope for the successful ratification of the Basel Convention within the current U.S. legal framework.


Rare Earth Metals Recovery from E-Waste


Apart from the precious metals recovered from e-waste, there is growing interest in the recovery of rare earth metals. Rare earth metals are the 15 lanthanides in the Periodic Table that are used to make magnets found in computers, cell phones, and many other electronics. China produces close to 90% of rare earth metals worldwide and there have been concerns about China’s restriction of rare earth metal exports (Daejin et al., 2015). The demand for electronic has resulted into exponential increases in rare earth metals to the point where in 2013, the U.S. Department of Energy launched the Critical Materials Institute to address the rare earth metals supply challenge. The recycling of rare earth metals from e-waste provides significant environmental benefits with regard to air emissions, groundwater contamination, soil acidification, eutrophication, and climate change (Kim et al., 2015). Researchers have been optimizing the recovery of rare earth metals from e-waste up to 90% (Daejin et al., 2015).


Life Cycle Analysis and ISO 14001 Environmental Management Systems


The ISO 14001:2015 Standard will introduce for the first time a life cycle perspective which will help to encourage organizations to identify and / or mitigate the environmental impacts along the different life cycle stages. Organizations that are currently certified to the ISO 14001:2004 Standard, which did not include the life cycle perspective, will have until September 2018 to transition to and be audited to the new ISO 14001:2015 Standard[11]. A unique feature of the ISO 14001:2015 Standard is that voluntary environmental commitments by a registered company become compliance obligations. Clause 3.2.9 provides the following about compliance obligations: “Compliance obligations can arise from mandatory requirements, such as applicable laws and regulations, or voluntary commitments, such as organizational and industry standards, contractual relationships, codes of practice and agreements with community groups or non-governmental organizations.” For instance, if an organization that is certified to the ISO 14001:2015 Standard voluntarily commits to not ship e-waste to developing countries, and it is found that e-waste was indeed shipped to developing countries, that would be a non-conformance to ISO 14001 Standard and would require corrective action.


Conclusion


There needs to be a robust U.S. public awareness / messaging campaign to highlight the environmental and safety issues associated with U.S. exportation of e-waste to developing countries, including China. State and local governments should develop and continually improve laws, policies and programs to encourage household generated e-waste to be collected by recyclers that are e-Stewards certified. Financial incentives should be provided to encourage responsible e-waste recycling. Corporations like Apple, Inc should demonstrate a higher level of commitment to environmental stewardship by requiring their e-waste recyclers to be e-Stewards certified and ISO 14001 registered. Furthermore, Apple should be urged to demonstrate its commitment to the environment by being certified to the ISO 14001:2015 Standard.


E-waste should be treated as a resource for rare earth metals recovery within the U.S. rather than an inconvenience to be exported to non-OECD countries like China. Technical assistance should be provided to aid the mitigation and / or clean-up of toxic waste sites in developing countries that resulted from the dumping of e-waste components exported from the U.S. since 1992 when the Basel Convention was signed but not ratified by Congress.


Contact

Adrian E. Brown, M.S., P.E.

EnviroScope Engineering, LLC

7643 Gate Parkway, Suite 104-636

Jacksonville, FL 32256

U.S.A

1 (904) 290-2947



References


Daejin, K., Powell, L. E., Delmau, L. H., Peterson, E. S., Herchenroeder, J., & Bhave, R. (2015). Selective Extraction of Rare Earth Elements from Permanent Magnet Scraps with Membrane Solvent Extraction. Environmental Science & Technology, 49(16), 9452-9459.


Dato, P. (2017). Economic analysis of e-waste market. International Environmental Agreements-Politics Law and Economics, 17(6), 815-837.


Fowler, B. (2017). Electronic waste: toxicology and public health issues. London; San Diego, CA: Academic Press.


Hogue, C. (2012). Electronic waste transformation. Chemical & Engineering News, (14). 23.

Purchase, D. (2017) Electronic waste – an emerging global environmental and health challenge in the 21st century. In: Smart Cities and Waste Research Workshop, 06 April 2017, London, United Kingdom.


Little, P., & Lucier, C. (2017). Global Electronic Waste, Third Party Certification Standards, and Resisting the Undoing of Environmental Justice Politics. Human Organization, 76(3), 204-214.


Yang, T., & Fulton, C. S. (2017). The Case for U.S. Ratification of the Basel Convention on Hazardous Wastes [article]. New York University Environmental Law Journal, (1), 52.


Zeng, X., Duan, H., Wang, F., & Li, J. (2017). Examining environmental management of e-waste: China's experience and lessons. Renewable and Sustainable Energy Reviews, 721076-1082. doi:10.1016/j.rser.2016.10.015


Zhang, H., Dai, H., Lai, H., & Wang, W. (2017). U.S. withdrawal from the Paris Agreement: Reasons, impacts, and Chinas response. Advances in Climate Change Research, 8(4), 220-225. doi:10.1016/j.accre.2017.09.002





[5] http://e-stewards.org/find-a-recycler/ [Accessed September 6, 2018]









 
 
 

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