Left to Your Own Devices

Left to Your Own Devices

The e-waste disposal landscape is changing rapidly, exposing many liabilities.

Owners of e-waste recycling facilities face a demanding future as additional environmental regulations impact their industry. So far, 24 states have established laws that specifically address e-waste and e-cycling. Some of the laws may expand the potential tort (legal) liabilities for these facility owners, who could find themselves held liable for:

  • Pollution incidents at the e-cycling site caused by improper processing or handling of the e-waste.
  • Pollution incidents arising during the transportation of the e-waste, the resulting recycled product, or the hazardous or universal waste generated during the recovery process.
  • Disposal practices at either pick-up sites or waste processing sites.

Besides those liabilities, a facility’s failure to comply with regulations set by the U.S. Environmental Protection Agency (EPA) may result in fines and other penalties, up to and including the shutdown of a site’s operations. Examples of such pitfalls include:

  • Failure to implement certain physical upgrades.
  • Exceeding regulated air or water emission levels.
  • Failure to purchase specific insurance coverages and limits that may be required under the environmental regulations.

What is E-waste?

E-waste refers to obsolete electronic equipment that cannot, or will not, be re-used in its current form as determined by resellers or recyclers with specialized expertise. EPA designates most e-waste as either “non-hazardous waste” or “non-waste.” Examples of non-hazardous e-waste include household electronics, scrap metal, precious metal for recycling or whole circuit boards for recycling. E-waste designated as non-waste includes electronic equipment with the potential for re-use, or electronic waste that has been processed into usable raw commodities, such as processed cathode ray tube (CRT) glass or shredded circuit boards.

In addition, some state regulations may classify e-waste as “hazardous waste” or “universal waste.” The hazardous waste designation covers e-waste from commercial or industrial generators (rather than residential), e-waste generated at rates in excess of 220 pounds per month for businesses or organizations, and e-waste with an otherwise “hazardous characteristic.” This material, regulated under federal law, must be clearly marked “hazardous waste” and sent for disposal in authorized hazardous waste landfills. Waste that potentially falls under this “hazardous waste” definition includes some cell phones and laptops.

Universal waste refers to hazardous e-waste with special controls regulating its handling, disposal or recycling. This includes items such as mercury lamps (fluorescent lighting) and rechargeable batteries.

What is E-cycling?

E-cycling is the processing of e-waste into usable raw materials or commodities. A facility that processes e-waste may face dual risks — both as a recycler and as a disposal facility. The processing of electronics may generate recyclable commodities, non-waste and non-hazardous waste. The process also generates hazardous or universal waste, which may require special handling, special permits and proper disposal.

EPA’s e-waste regulatory programs are designed to encourage re-use first, recycling second, and disposal third. As a result, EPA rules allow several hazardous waste exclusions and exemptions that are designed to encourage re-use and recycling. In addition, the Resource Conservation and Recovery Act (RCRA) has similar exclusions and exemptions aimed at promoting re-use and recycling in lieu of disposal.

E-cycling helps control the release of toxic substances into the environment. It also helps re-capture usable commodities, such as precious metals. However, the cost of handling and processing may make e-cycling unaffordable in some areas. To counter that, some states, like California, subsidize these facilities by paying them to e-cycle. Thus, these states tend to have active and efficient e-cycling programs.

Why Does the Process Attract Environmental Regulation?

Let’s look at a typical e-cycling process. An operator that e-cycles CRTs, hard drives, whole computers and telephones may have to transport this e-waste to its facility. Once there, the recyclable items are staged to move through recycling lines specific to the type of waste. CRTs, for example, must first have an electronic gun removed from their tube for further processing. The leaded glass tube is then sent to a machine that crushes the leaded glass. This glass is fed through filters so that no leaded glass dust will be released into the work area, and crushed glass is sealed in containers for shipment to a lead smelter.

The small amounts of precious metal (silver, gold, copper) that are recovered in processing e-waste are sent to metal recovery facilities where they are melted and blended back into ingots or bars. Toxic metals (lead, nickel, cadmium) may also be recovered. These must be handled as hazardous waste and disposed of properly.

The above example creates the opportunity for a number of environmental liabilities. Potential exposures include:

  • The escape and spread of toxic materials during transportation of e-waste to the facility.
  • The exposure of workers or the public to toxic materials during staging or storage at the facility or other warehouse locations.
  • The improper handling of the electronic gun in CRTs during removal, reprocessing or disposal.
  • The failure of emission control equipment while filtering crushed leaded glass.
  • Improper handling of the glass.
  • The improper labeling of final products and by-products that lead to facility contamination, as well as public exposures once products leave the facility.
  • The escape and spread of toxic materials during transportation of by-products, hazardous waste or universal waste after processing.
  • The improper disposal practices of by-products or wastes resulting in being named a potentially responsible party (PRP) for the clean-up of affected disposal sites.

Increasing environmental regulations create additional requirements and expenses for the e-cycling facilities. Examples include:

  • Hearings to obtain state and local approval of an appropriate location.
  • Paperwork and fees to obtain required operating permits.
  • Proper safety and process training for staff and vendors.
  • Gaining community acceptance of the business in the surrounding neighborhood.

Another important consideration is the implementation and maintenance of sound insurance and risk management programs to address the broad scope of liabilities encountered by these operations. Aside from the environmental liabilities discussed above, potential exposures for these e-waste recycling facilities include everything from premises and transportation liability to electronic data liability.

What Happens in States Without E-waste Regulations?

States that do not have e-waste laws face a different type of problem. The very regulations that exempt most e-waste from being classified as hazardous waste allow collection and storage to occur outside the waste rules. As a result, many states collect these wastes but either hold them in storage or send them to landfills. Such practices use valuable landfill space and create significant storage problems.

A 2007 EPA study, “Management of Select Electronic Products in the U.S.,” discovered that 235 million units of electronics were in storage. The “units” in question included desktop computers and monitors, laptops, and televisions. Of these, 1.84 million tons were disposed of — primarily in landfills — while only 414,000 tons were collected for recycling.

How can the Public Access E-cycling Programs?

There are numerous private and government-run programs designed to help the public find e-cycling programs and processors. For example, various manufacturers include information in their packaging regarding the proper recycling of their specific products. Some may also provide drop-off locations at their retail outlets. Several “big box” and specialty retailers offer consumer electronics recycling programs or electronic product “trade-in” programs at their locations. In addition, federal, state, and local governments host websites with e-waste recycling information. Electronic donation programs can also be found on the EPA’s website.

The Role of E-cycling Facilities

E-cycling facility operators should maintain a visible profile in their local communities, and educate the immediate public about the proper disposal of e-waste. Their active support of e-cycling and their role as an educational resource will build goodwill for their businesses while enhancing their reputations as community leaders in creating a cleaner and less wasteful future.

Barbara Deas is President, ACE Westchester Environmental, for ACE Westchester. Based in Atlanta, Ga., she can be reached at barbara.deas@acegroup.com.

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