For the past two years, the EPA has been funding a national stakeholder process to develop voluntary standards for electronics recyclers, currently called “Responsible Recycling (R2) Practices for Electronics Recyclers”. While the standards[1] haven’t been finalized, they are now being ‘field tested’ and most of the discussions on how high (or low) to ‘set the bar’ are completed. While R2 appears to define best practices, the standards now in field testing (as of the end of May 2008) will mean many exporters and sham recyclers will be able to get certified under R2 as EPA-endorsed “responsible recyclers”. Astonishingly, these draft R2 standards don’t adequately address some of the worst aspects of sham recycling, particularly when it comes to the toxic components of this waste stream.

Summary of R2 Shortcomings (details further below):

R2 system to ‘ensure legality’ of exports won’t ensure and isn’t transparent

R2 calls for exports that do not violate laws in importing and transit countries. Unfortunately, the wide array of options provided to R2 recyclers to “assure...conformity with the legal importation requirements of… countries” will not do the job. For example, most countries are legally bound to approve imports of toxic materials on a shipment-by-shipment basis, and are not allowed to accept hazardous materials from the US, as defined internationally. But R2 does not require shipment-by-shipment approval, government-to-government communication, and does not create a transparent, single system that will identify truly legitimate and legal exports and imports. In fact, as with some toxic materials such as a specific subset of circuit boards, it appears to be designed to “certify” current practices of unrestricted trade in what is considered hazardous waste by many other nations.

Draft R2 standards now in ‘field testing’ will allow/encourage recyclers to violate laws of importing countries

• The EPA has approved ‘field testing’ of draft standards that knowingly violate laws in importing countries by exempting a type of circuit board from the R2 export requirements. Why? Because the EPA capitulated to a last minute demand from the scrap industry association that some toxic circuit boards be exempt from the R2 export requirements, and instead continue to be freely exported, even though most developing countries consider circuit boards to be a controlled hazardous waste under international law and therefore illegal to import from the United States - the only developed country not to ratify the UN hazardous waste trade treaty called the Basel Convention.
  
  
• Other US exports that are likely to violate laws in importing countries include e-waste with toner, beryllium, cadmium, and circuit boards in any other form than “shredded or whole”. These are not included in the definition of the toxic materials (“Focus Materials”), and therefore are also not subject to the export requirements in R2.
  
  
• In addition, untested and non-working “equipment” and “parts” supposedly destined for “reuse” will be allowed to go to an endless number of downstream vendors before someone, somewhere is held accountable (by the R2 certified recycler) for ensuring that only fully functional units are exported.

R2 continues to allow mercury devices and batteries to be shredded

Current US regulations allow recyclers to shred batteries in e-waste, along with mercury lamps and switches, which is highly likely to expose workers and release toxins into the environment. The draft R2 standard ultimately allows these irresponsible practices to continue, this time with EPA’s endorsement.

Weak “due diligence” language for downstream vendor compliance

The R2 “due diligence” requirements are intended to hold the certified recycler responsible for assuring R2 compliance throughout the entire recycling chain of toxic materials. But ultimately, the R2 recycler is only required to confirm this “through audits or other similarly effective means”, and leaves the latter term open to multiple interpretations, resulting in a wide array of practices implementing the essential due diligence requirement. Without requiring a clear and consistent practice for this critical aspect of ‘responsible recycling’, the standard creates a giant loophole, through which our toxic materials can easily be exported on the open market or otherwise irresponsibly managed.

R2 allows e-waste to go to landfills and incinerators

While landfills and incinerators are considered “lower priority” disposal options for toxic materials in the R2 standards, it ultimately allows recyclers to send lead, mercury, cadmium, arsenic, etc. in the form of all electronics (if allowed by applicable law) to solid waste landfills and incinerators. These well-known toxins should never be allowed into municipal solid waste facilities, much less be considered a “responsible recycling” practice. The EPA has declared that they will not allow the voluntary R2 program to set disposal standards that go beyond current regulations!

Weak porker protection language

Rather than providing baseline requirements, the draft R2 standards leave it completely up to the recycler to determine what is hazardous and how to protect workers. Under-financed, unscrupulous, or unmotivated companies are likely to do less than a thorough job in creating such an assessment from scratch. We are missing an opportunity to provide explicit guidelines for baseline practices in the area of worker protections when disassembling, shredding, cleaning up accidents, storing, and otherwise managing toxic e-wastes here in the US and downstream.

Little to no oversight on some key toxic materials

Although they are misnamed “focus materials’ so as not to raise valid concerns about toxicity, the R2 list of toxic materials is the basis for a number of key provisions governing export, on-site practices, downstream due diligence, disposal, and reuse/refurbishment. Missing from this list, and therefore adequate oversight, are:

• ALL circuit boards (a subset of circuit boards was explicitly omitted as a result of industry pressure, along with boards in conditions other than whole or shredded - such as chopped, broken, granulated, etc.);
• Toner, toner cartridges, and ink;
• Beryllium; and
• Cadmium.

R2 allows e-waste to be sent to prisons

The EPA has refused to let stakeholders in the R2 process ban the use of prison labor for recycling, despite the fact that prison operations raise serious worker rights and protection issues, and use tax payer money to undercut private sector recyclers. Why did EPA control this issue? Because the US Department of Justice runs prison recycling plants inside many federal prisons, and the federal government (the largest generator of e-waste in the US) sends most of its e-waste there.

Details on How the R2 Language Falls Short

R2 system to ‘ensure legality’ of exports won’t ensure and isn’t transparent

Most importing countries require a government-to-government ‘notification and consent’ process via their “competent authority” agency on a shipment-by-shipment basis for toxic wastes, under the Basel Convention, and 140 of them are not allowed to trade in Basel wastes with the US, because the US has not ratified this UN treaty. (The 140 developing countries that have ratified the Basel Convention but are not members of the Organization for Economic and Cooperative Development [OECD] cannot legally trade in Basel wastes with the US, including China, India, Malaysia, etc.) Despite the fact that R2 calls for not violating laws in importing and transit countries, it provides a bankrupt system for implementing that goal. R2 says nothing about shipment-by-shipment communication, does not require that the ‘competent authorities’ be involved in all cases, does not offer a ‘notification and consent’ process, does not require any communication or verification from importing governments in some cases (simply a copy of their law), and does not require full transparency of the process of identifying legal imports. Customers and the public will not have the right to verify the accuracy and frequency of requests made, nor the veracity of responses from importing governments. The lack of a single, centralized, and transparent EPA-administered system will result in a wide range of “certified” export practices, many of which will violate laws in importing countries.

Draft R2 standards now in ‘field testing’ will allow/encourage recyclers to violate the laws of the importing countries

The export provision in R2 calls for not violating the laws of importing and transit countries. While it’s not illegal to export toxic e-waste from the US (because we haven’t ratified a UN treaty), it is illegal for many developing countries to receive it from the US. But loopholes in the standard won’t prevent R2 certified recyclers from breaking other countries’ laws, and, unless the final standards are dramatically improved, they will mislead customers to believe R2 exports are all legal. The details actually ensure that recyclers will continue to violate other countries’ laws. Here’s how:

• EXEMPTED BOARDS: Current R2 language says circuit boards that have been removed from electronic equipment and have had batteries and mercury switches removed from them are exempt from R2 export requirements if they’re headed to a facility that is licensed and uses “effective” technology. As a result of scrap industry pressure just prior to ‘field testing’ the draft standards, this large-volume subset of circuit boards are now exempt from the export (and other) requirements, even though they still contain lead and other toxic constituents. This will result in illegal shipments of circuit boards to many countries, in violation of the R2 export provision, because many countries (non-OECD Basel Parties) consider circuit boards to be hazardous waste and therefore are not allowed to import them from the US. The EPA has acknowledged that many countries can’t legally accept the circuit boards, but has endorsed moving into field testing anyway, because the scrap industry association was adamant about having R2 certify current export practices for these circuit boards.
  
  
• DEFINITIONS: The definition of toxic materials in R2 fails to parallel the international definitions or include major toxic materials. The devil is in the definitions! The R2 definition of the toxic components/constituents (euphemistically named “Focus Materials” so as not to draw attention to their toxicity) fails to include components and constituents likely to be considered hazardous waste by many importing countries, and exempts them from export controls. In addition to the subset of circuit boards listed above, these omitted items include: circuit boards in all forms (not just “whole and shredded”, but in any other form, such as granulated, chopped, broken, etc.), toner and toner cartridges, ink, beryllium, and cadmium.
  
  
• REUSE: Untested/non-working equipment can leave R2 control and go to an unlimited number of downstream subcontractors before some entity, somewhere, is supposedly responsible for ensuring that only tested, ‘fully functional” equipment and parts are exported. One of the most common avenues for exporting e-waste from the US is to label it as going for “reuse.” It is imperative that R2 adequately distinguishes between legitimate reuse versus ‘sham reuse’. Scrap, untested or non-working devices, and equipment needing repairs that result in the illegal transboundary movement of hazardous waste should be clearly disallowed under ‘reuse’ standards. While the draft reuse language says that products exported for reuse/refurbishment should be working, some vital details are missing that would make that happen:
  
  
  • Unclear how to decide WHETHER products are really working:
    
    
    • There are no definitions for crucial terms such as “function properly”, “effective and reliable testing procedures”, or “intended reuse”;
      
      
    • There is no guidance document available to assist recyclers, their customers, and R2 auditors in understanding baseline requirements for what tests must be performed on what components. (Is a power up test on an old, screen-burned monitor adequate? Is a laptop battery that only holds a 20 minute charge adequate? Is a cell phone that dials a number but has a broken keypad adequate?) And what repairs must be accomplished prior to exporting a ‘product’, rather than ‘waste’, for reuse?
      
      
  • Unclear WHO must meet the requirements for tested and working equipment: With no limit to how many tiers of subcontractors who can (cherry pick and) send on the R2 certified recycler’s e-waste, how will that R2 recycler ensure that only tested, fully functional equipment is exported, and that all waste/scrap is exported in compliance with R2, down unlimited tiers of vendors? And how will the R2 auditor assure compliance with unlimited tiers? And how will customers know WHO along the chain of custody (frequently considered “proprietary business information”) is actually testing, repairing, and assuring compliance with R2?

R2 continues to allow mercury devices and batteries to be shredded, along with other unacceptable current practices

Current recycling practices include the shredding of mercury and batteries. While the R2 standards appear to speak to this highly unsustainable practice, recyclers are exempt from removing toxic components, like mercury lamps, switches and batteries before putting e-waste into shredders by simply stating they can’t remove them “at reasonable cost”, and they are in some undefined ways protecting workers (regardless of releases to the environment) during shredding.

And rather than these standards providing prescriptive details regarding where the risks are and minimum standards for managing them, it is left up to each R2 recycler to determine what is toxic and how to manage those toxins, with no baselines provided. This is no improvement over the current state of the industry.

Furthermore, in Provision 5 regarding the “processing, recovery and treatment” of toxic materials, requirements (in 5c) that toxic materials must go to licensed facilities using safe and effective technologies do not appear to apply to all the toxic materials, including mercury, batteries, CRTs, and circuit boards exempted in 5b, since they were not “removed”.

R2 allows e-waste to go to landfills and incinerators

While Provision 5(d) attempts to disallow disposal of toxics in landfills and incinerators, it ultimately allows it, because EPA requires this as an option. (EPA will not allow the voluntary R2 program to set disposal standards that go beyond current regulations.) NGOs have long held that lead, mercury, cadmium, arsenic, polybrominated diphenyl ethers, and other heavy metals and persistent bio-accumulative toxins do not belong in solid waste landfills and incinerators, including waste-to-energy incinerators. Spreading these highly toxic materials around the surface of the earth, via leaching, air emissions, soil and water contamination, is not responsible recycling of this toxic waste stream, and should never be considered a “best management practice”. The disposal of persistent toxins like lead and cadmium should be in hazardous waste disposal systems designed to carefully treat, sequester and monitor them long term. Therefore R2 will perpetuate the current practice of putting carcinogens, neurotoxins, endocrine disruptors, etc. into non-hazardous landfills and incinerators, as part of EPA-endorsed ‘responsible recycling’ practices.

Weak worker protection language

While R2 appears to provide a great deal of “On-Site Environment, Health and Safety” requirements (Provision 4), there are actually no baseline requirements other than federal and state OSHA regulations, which are doing little to protect workers in this industry. Instead, the R2 recyclers are asked to figure it out themselves, by “conducting a hazards identification and assessment of occupational and environmental risks”. There is no guidance document, no expert advice, and no assistance in understanding occupational risks associated with particular types of processes and components.

Little to no oversight on some key toxic materials

The multi-stakeholder group was unable to agree on including toner and other toxins in the list of “Focus Materials”. However, many toners and inks are flammable and contain solvents, and manufacturers of toner are not required to divulge 100% of the ingredients, leaving questions of toxicity unanswerable. But in fact, manufacturers in Canada (EPSC) have identified “ink and toner cartridges” as hazardous waste for the purposes of their own “Recycling Vendor Qualification Standard”[2].

R2 allows e-waste to be sent to prisons

The EPA “overruled” the widely held stakeholder position that R2 recyclers should not be sending their e-waste to prison recycling operations. Like exporting to developing countries, using prisoners to manage this toxic waste stream is another form of externalizing the real impacts/costs onto those who are disempowered. Some of the federal prison’s UNICOR e-waste facilities have had serious health and safety problems – for prisoners and staff members - resulting in an ongoing investigation by the inspector general, and a pending lawsuit by former UNICOR staff. We do not believe prisons and prisoners are an appropriate solution to the US toxic e-waste problem. They lack the normal workplace protections, because there are no unscheduled OSHA inspections, and no right to union representation. UNICOR pays no taxes, worker compensation or benefits to its prison employees, and pays wages from $0.23 to $1.15/hour. Private sector recycling companies simply can’t compete with this federally subsidized system. In addition, a UNICOR spokesman has publicly stated that they export material, and the details of this export practice are not available from this public institution.