Library / August 30, 2007
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Letter to Jay Shepard, Washington State Department of Ecology

August 30, 2007

Jay Shepard
Washington State Department of Ecology
PO Box 47600
Olympia, WA 98504-7600

Dear Mr. Shepard,

Thank you for this opportunity to comment on the proposed rules affecting the Electronic Product Recycling Program WAC 173-900 and Dangerous Waste Regulations WAC 173-303. Rather than writing lengthy and detailed input like others are providing (and we fully support King County Solid Waste Division and WCRC input), we will be keeping our comments mercifully brief.

The Basel Action Network remains appreciative of the significant effort Ecology has put into drafting regulations for environmentally responsible recycling of WA’s electronic waste, given informal opinions from the state AG’s office that suggest what may and may not hold up in court if challenged, and given states’ limitations in restricting export. At the same time we remain highly concerned that the minimum standards do not go as far as they can and must. If we create a program that provides free recycling for WA citizens at the expense of human and environmental health elsewhere, we have failed. If we create a program that does not hold the manufacturers responsible for the toxins in their products, we have also failed. BAN would like to ask Ecology to push even farther in creating accountability for the toxic materials, perhaps by making them the explicit responsibility of the plans, not the direct processors.

As the plans have the in-state presence, let’s hold manufacturers (plans) directly responsible for the materials of concern, throughout final disposition. Clearly the legislature tasked you with writing regulations for environmentally sound recycling, and clearly your jurisdiction is with in-state entities. We’re well aware that current practices amongst the most progressive OEMs is already that they are already tracking the “environmentally sensitive materials” throughout final disposition, and demanding that their vendors choose downstream vendors that meet the OEM restrictions on these materials. We’ve talked to 2 OEMs who are quite concerned that Ecology’s minimum standards don’t come close to this level of accountability, but that they will have to meet their own higher standards due to liability and brand name protection. Meanwhile, less progressive OEMs will pay much less for recycling that has no accountability for the toxic materials past the first tier recycler or asset recovery company. Let’s make our minimum standards hold all OEMs accountable for these materials of concern throughout final disposition (see definition provided below, which is based on Canada’s EPSC recycling standards. EPSC is an OEM-member organization.

There are of course, other key issues, as well.

Key Issues

  1. Hold manufacturers (not direct processors) responsible for Materials of Concern throughout final disposition

    As large quantity generators’ covered electronic products (CEPs) will be mixed with small quantity and household CEPS, and as the public and some covered entities have a right and a responsibility to know that their toxins (mercury, lead, cadmium, etc.) are responsibly managed throughout final disposition, WA regulations must hold manufacturer (standard and independent) plans responsible for the materials of concern throughout final disposition. One way to accomplish this is to insert the following language into the plan requirements.

    WAC 173-900-300 Covered electronic product (CEP) recycling plans.

    The authority or authorized party of a plan must:

    1. Track Materials of Concern throughout final disposition, performing due diligence on and obtaining verifiable documentation from all vendors receiving MoCs resulting from CEPs.
    2. Provide collectors with information that will be shared with covered entities about how and in what countries CEPs received into the program are recycled and/or disposed. For all materials of Concern, this information will include countries where final disposition takes place.
    3. Ensure…etc.

  2. Close massive loophole for CEPs to go unregulated via registered collectors

    Our reading of the draft regulations indicate that a) registered collectors may decide to only accept certain CEPs (e.g. televisions), but may take in (outside of the program) all other CEPs (free or at a charge) because they can get far more value out of reselling and recycling them (without any constraints from Ecology or the plans) compared to what plans will pay them for collecting, and b) covered entities may arrive at such a registered collector facility with a carload of CEPs, and decide to leave all of it with the registered collector, out of convenience, even though they may (or may not) be told that only the TVs (in this example) will go into the program and therefore by under the control of Ecology’s standards. How many covered entities would pack up and go to a second registered collector to ensure their e-waste stays within the program?

    We anticipate that the (smartest) plans will heavily encourage collectors to divert equipment out of the program, lowering their overall costs for recycling. Collectors will be happy to minimize what they take in under the program, but have free reign with most of the volumes. Possibly, TVs would make up the bulk of the small volumes of e-waste that actually make it into the WA program, and it would be a percentage of this small volume that Plans would have to pay their equivalent share of (or compensate others for). The economics would appear to dramatically favor diverting most equipment away from the WA program (with its costs and standards), and sending it into a profitable export/reuse/refurbishment market free of any constraints.

    Registered Collectors must:

    1. Meet reuse requirements to test all equipment and components and ensure they are working prior to selling or donating for reuse
    2. Send all scrap to a contracted direct processor
    3. Be audited, if doing reuse/refurbishment
    4. Keep records for Ecology and Plan reviews, provide documentation

  3. Strengthen export language

    We support the approach of Washington’s program not violating laws in importing countries. However, Ecology must play an active role in verifying and monitoring compliance with this requirement, or it can easily become a meaningless requirement, since few businesses in this country understand the laws in importing countries.

    Therefore, we believe Ecology must require that plans provide verifiable documentation, in the form of consents from ‘competent authorities’ and import permits, verifying that all exports of materials of concern (including circuit boards and cullet) are not violating laws in importing and transit countries. Plans should be required to provide this documentation directly to Ecology, and manufacturers must be held responsible for meeting this requirement, throughout final disposition for the ‘materials of concern’.

    Language in plan requirements must explicitly require the plans to ensure that the transfer of WA e-waste to any direct processor must not violate laws in importing and transit countries, as well as the exports from the direct processors. In other words, manufacturers must make sure that getting WA’s e-waste to the recycler will not violate laws in importing and transit countries.

    All of these changes to the rules will assist Ecology is meeting its mandate in the statute to report exports to developing countries to the legislature by 2010. If manufacturers are not held responsible for tracking exports, they will not be able to report accurate figures to Ecology.

  4. Define reuse standards

    The mandatory rules must clearly define that any registered collectors and/or registered processors who are sending parts or equipment into the reuse market (whether donated or sold), must ensure that only tested working equipment and parts are sent. Untested or non-working components and units must be considered waste for our purposes, and must fall under all requirements for CEPs.

  5. Transparency

    Plans must be required to provide all registered collectors with information including the countries of final disposition for covered electronic products, all materials of concern, and all residuals.

  6. Auditor qualifications

    Must include one of the following industry-accepted certifications:

    1. Certified Hazardous Materials Manager (CHMM)
    2. Registered Environmental Manager (REM)
    3. Registered Environmental Professional (REP)


Final Disposition:

The point in the recycling/disposal chain where no further waste management activity (i.e. processing) takes place and the materials are either ready for use as a direct feedstock in manufacturing new products (i.e. require no further processing, but are a raw material commodity) or are finally disposed of (e.g. in a landfill or incinerator, including waste-to-energy.)

This includes:

    • Smelters for metals-bearing material;
    • Lead smelters or glass-to-glass manufacturing facilities for CRT glass;
    • Landfills, incinerators, and waste-to-energy incinerators.

This does not include:

  • Bulk and material blends that are sent to other vendors for additional processing;
  • Shredded and separated materials that are sent to other vendors for additional processing

Materials of Concern:

“Materials of Concern” include each of the following, and any equipment or component, or any aggregate material(s) derived from equipment or components (e.g. shredded, granulated, or mixed materials) containing or comprising any of the following:

    • Any devices, including fluorescent lamps, containing mercury or PCBs
    • Batteries
    • CRTs and leaded glass, including processed and unprocessed leaded glass cullet
    • Circuit boards (whole, shredded, or in any other form)

Thank you for this opportunity to submit comments.

Sarah Westervelt
Basel Action Network
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