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For decades, people have been arguing over the advantages and disadvantages of exporting. And when it comes to U.S. export regulations, this hot debate doesn’t seem like it will be dying down anytime soon. However, despite whichever stance you take on the matter, one thing remains clear: Choosing to ship material halfway around the world (and to less developed countries at that) seems counterintuitive to the basic goal of managing the domestic e-scrap stream. As shown by e-scrap’s recent article, U.S. export laws can be a tricky topic.
The practice of exporting is particularly interesting and terribly complex. While many publicly disavow the practice, it is something that a majority of the industry relies on. Jason Linnell, executive director of the National Center for Electronics Recycling (NCER), commented to E-Scrap News, “If you’re a smaller recycler, you might not be that involved with the export side of things, but if you’re a bit larger and you have plastics and boards and CRT glass that has to get somewhere, then you have to be looking at exports.”
As of late, the subject has been getting renewed interest as supporters of a federal bill that would reshape export law say progress is being made and a Congressional hearing could be on the way. The Secure E-Waste Export and Recycling Act (SEERA) bill was first introduced in 2016 and requires firms to process devices before shipping any materials overseas.
“It’s incredibly difficult for a recycler to figure out what’s legal and what’s not,” said Kelley Keogh, managing director at auditing and consulting firm Greeneye Partners.
Whether navigating the intricacies of regulations originally crafted in the mid-1970s or attempting to get a handle on the policies of foreign countries, U.S. e-scrap firms face a dizzying array of questions when it comes to shipping material overseas. However, as controversial as the practice of exporting it, a large section of the industry relies heavily on it.
In a recent article, e-scrap reports to have reach out to a number of industry figures to get a handle on where U.S. law and regulations come down on the practice and how processors are navigating thorny questions of legality as part of their first segment of Eye on Export, a series of stories on the wide-ranging and emotionally charged topic of e-scrap exports.
To get the conversation started, it’s important to get a grasp on how e-scrap shipments to foreign countries are covered by U.S. regulations currently on the books. With pressure for companies to be transparent about their export practices, stakeholders have searched for cut-and-dry descriptions in federal policy.
However, the issue with this is that what’s actually legal from a U.S. standpoint is really just a matter of interpretation.
“It’s a complicated process to determine whether or not something is a waste, whether it’s hazardous and whether it can be legally exported,” explained Corey Dehmey, R2 director at Sustainable Electronics Recycling International (SERI), which administers the R2 electronics recycling standard. “There are domestic regulations under RCRA and then on top of that, there’s the multilateral treaty under the OECD.”
The Resource Conservation and Recovery Act (RCRA) is a good starting place to begin to get a handle on relevant U.S. policy. Passed in 1976, RCRA set out to define solid and hazardous wastes in the U.S. and provide “explicit, legally enforceable requirements for waste management.” Over the years, RCRA regulations have been updated to cover a number of potentially hazardous materials, including various types of e-scrap, and it spells out specific exporter requirements for these materials. However, one of the complex issues of RCRA is that it’s up to generators to make a determination on whether a shipment is considered a hazardous waste. To do so, the law notes generators must assess the material in question for ignitability, corrosivity, reactivity and toxicity. For instance, if lead content exceeds 5 milligrams per liter or if mercury content exceeds 0.2 milligrams per liter, the material is considered hazardous.
This means many firms hire advisors to assist in the determination process and to provide support in navigating the additional intricacies of international law. In the event a potential shipment is found to be hazardous, various additional controls and costs come into play that hamper — and often prevent — firms from utilizing the export market.
That said, the general consensus is that e-scrap, including scrap commodities and whole devices bound for recycling and reuse, is often interpreted as being non-hazardous by the industry. While there is no overarching hazardous waste exclusion for scrap electronics under RCRA, many kinds of e-scrap pass hazardous waste testing protocols or are covered by various recycling exclusions that have been built into RCRA-related regulations, including for CRTs, circuit boards, scrap metal and batteries. As long as they’re followed closely, these exemptions allow the industry at large to treat potentially problematic material, such as lead-laden CRT glass, as non-hazardous.
But Peters-Michaud, CEO of Cascade Asset Management (CAM), and many others also note another key consideration when it comes to U.S. export law: the OECD Control System for Waste Recovery.
Under the OECD Control System, scrap materials bound for another OECD country are considered “green” and are not subject to additional controls if they “present low risk for human health and the environment.” However, those that do present “sufficient risk to justify their control” are referred to as “amber” and are subject to a range of additional measures. The issue here is that once again, it seems it is up to recycling companies and their partners to determine what constitutes as “green” and “amber” materials. Beyond this, these controls do not impact shipments of material to non-OECD countries, meaning that if RCRA indicates a shipment as non-hazardous, it’s often viewed as legal, at least from the U.S. standpoint, to move the material to non-OECD countries.
Currently, there are 35 OECD countries, which include Canada, Mexico, Australia, much of Europe, Japan, Korea, and Israel. Non-OECD countries include China, India, Brazil, developing economies in Africa, much of Asia, Latin America, and the Caribbean. And seeing as how a majority of U.S. scrap gets exported to China and parts of Africa, this is a huge issue.
While both RCRA and OECD controls can often be challenging, the trickiest of them all is international law. “The complexity of navigating U.S. export law lies with understanding the regulations of the importing country,” said Mark Swenson, director of EH&S and compliance at Dynamic Recycling, which is a Wisconsin-headquartered ITAD and e-scrap recycling company. “It’s complicated to search, translate, and interpret international requirements.”
U.S. e-scrap representatives are hoping to convince U.S. lawmakers to address the export issue in clearer terms. To do so, they’ve helped develop the SEERA legislation that was introduced to Congress in both 2016 and 2017. However, the bill failed to gain traction both times. But despite this, supporters say they are not giving up on the policy push.
Lead by the Coalition for American Electronics Recycling (CAER), SEERA would not altogether ban exports, as previous legislative proposals have attempted to do. The bill, which is also being supported by the Basel Action Network (BAN), requires companies to process material before shipping it overseas. It has been framed as an effort to combat counterfeiting operations abroad that are viewed as a threat to national security. One industry expert comments that CAER is pushing for a hearing in the near future and currently has “good traction” in the effort.
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