International Controls and Trade Bans Governing the Export of E-Waste

1. Institute of Scrap Recycling Industries, Inc. Las Vegas, NV International Controls and Trade Bans Governing the Export of E-Waste April 5, 2006 Paul E. Hagen Beveridge & Diamond, P.C. 1350 I Street, Suite 700 Washington, DC 20005 (202) 789-6022 phagen@bdlaw.com

2. The Big Picture • Many governments adopting electronic product take back and recycling mandates. • Growing public and government concern with ensuring environmentally sound management of e-waste. • International Agreements governing cross-border waste shipments for recycling continue to evolve and are moving toward greater control of e-waste shipments. • Debate among governments on the extent to which e-waste should be classified as hazardous waste.

3. Electronic Waste Recycling Initiatives • Europe: • WEEE Directive • North America: • U.S. States (California, Maine, Maryland, Washington) • Canadian Waste Diversion Initiatives (Alberta, Ontario, British Columbia, Nova Scotia) • Mexico’s Omnibus Waste Law • Asia-Pacific: • Australia • Japan • China • Latin America: • Colombia • Brazil (Proposed) • Argentina (Proposed)

4. Evolving International Regime • The Basel Convention • OECD Council Decision C(2001) 107 final • U.S.-Canada Bilateral Agreement • U.S.-Mexico Bilateral Agreement • U.S. “Import-Only” Bilaterals with Malaysia, Costa Rica, The Philippines • EC Council Regulation No. 259/93 (Amendments Pending) • Other “Article 11” Agreements

5. The Basel Convention • Negotiated under the auspices of UNEP in 1989 • Presently 166 countries are party to the Basel Convention but not the United States • Global notice and consent system • Governs waste shipped for final disposal or for materials recovery/recycling • Ban on trade in covered wastes with non-parties (e.g., U.S.) • Pending “Basel Ban Amendment” would prohibit exports from developed to developing countries

6. Why Does Basel Matter? • Basel Hazardous Wastes Subject to: • Stringent Cross-Border Controls • ESM Requirements and Determinations • Party to Non-Party Trade Ban • Ban on Exports Out of the European Community to Developing Countries (EU Law) • Numerous National Import Bans based on Basel Classifications • Electronic wastes identified as a priority waste stream • Some waste electronics will be classified as “hazardous waste” • Mobile phone and proposed computer partnerships are developing guidance on waste classifications and ESM

7. Basel Waste Listings • Hazardous Waste • Annex I Constituents (e.g., lead, cadmium, mercury, beryllium) • Annex III Hazardous Characteristics • E-waste on both Annex VIII (presumed hazardous) and Annex IX (presumed non-hazardous) • National Definitions and Testing Procedures • Need to consider national legislation of exporting, transit and importing countries.

8. LG Motorola Philips Sony Ericsson Matsushita Vodaphone Bell Canada Mobile Phone Partnership Initiative (MPPI) launched in 2002 between Basel Secretariat, several governments and wireless carriers and handset manufacturers: Basel MPPI • NEC • Samsung • Mitsubishi • Nokia • Siemens • France Telecom/Orange

9. Basel MPPI • Other companies, trade groups (CTIA), and NGOs (Basel Action Network), and recyclers participating as observers • Developing new guidelines and recommendations for: • Product Design • Refurbishment of used mobile phones • Recovery and recycling of used mobile phones • Collection of used mobile phones • Transboundary movements of used mobile phones

10. Basel MPPI Completed Guidelines: • Design considerations • Refurbishment • Recycling • Collection Single overall guidance document for the environmentally sound management of used and end-of-life mobile phones Open for public comment until May 12, 2006; To be adopted by COP in November 2006

11. Basel MPPI-Transboundary Movement Guideline • Key Issues in Draft Transboundary Movement Guideline: • Are used mobile phones destined for recycling hazardous wastes subject to controls and trade bans? • Are used phones destined for repair, refurbishment and reuse wastes and potentially hazardous wastes? • Proposed “Interim Approach” proposed for greater transparency on shipments for reuse. • Transboundary Movement Guideline To Be Completed in 2007 • Draft Chairman’s Paper Exploring Options for Adjusting Basel Convention Controls to Facilitate ESM for e-waste

12. Basel e2e Partnership • Proposed Basel Convention Computers and the Environment (e2e) Partnership • Draft work plan developed through informal discussions over past two years • Expected to track elements of MPPI • Secretariat has expressed interest in launching partnership in 2006 • Company participation, work program, funding expectations are undecided

13. OECD SYSTEM • Only applies to wastes shipped for recovery within the OECD • Tacit consent procedures • Electronic scrap generally classified as non-hazardous • Glass from CRTs may be hazardous • Harmonization with Basel lists • Governments expected to review e-waste classifications and management of whole equipment.

14. Potential U.S. Hazardous Waste Requirements • Source of Requirements: • Federal Regulations: • Resource Conservation and Recovery Act (“RCRA”) • State Regulations: generally at least as stringent. • Key Issues: • When are electronic devices “wastes”? • Are waste electronic devices “hazardous”? • What requirements might apply? • Do any exemptions apply?

15. When Are Electronic Devices “Wastes”?

16. Are Waste Electronic Devices “Hazardous”? • Ignitability • Corrosivity • Reactivity • Toxicity (TCLP leaching test) • Lead (solder, etc.) • Cadmium (NiCd batteries) • Mercury (switches, displays?) • State Characteristic Tests • California Total Metals Test (TTLC) • California Leaching Test (STLC)

17. What Requirements Might Apply? • Generator Requirements • Transporter Requirements • Requirements for treatment, storage, or disposal facilities • Requirements for recycling facilities

18. Do Any Exemptions Apply? • Household waste exclusion. • Applies even during collection and disposal/recycling. • Small quantity generator (“SQG”) exemption. • Applies to generators of <100 kg/mo total hazardous waste. • Universal waste rule. • Currently limited to batteries, lamps, and a few other items. • Reduced requirements for generators and collectors. • Ultimate disposal/recycling facilities are fully regulated. • Precious metal exemption. • Requires “economically significant” amount of precious metal. • Requires hazardous waste manifesting. • Scrap metal exemption/exclusion. • Generally requires >50% metal. • Shredded circuit board exclusion.

19. Notice of Intent to Export Yes Comply with Conditions of Consent The e-Waste is subject to RCRA export requirements under Part 262, Subpart E Special Manifest Requirements Reports U.S. Hazardous Waste Exports Is the equipment a RCRA hazardous waste subject to manifest requirements or is it a universal waste?

20. Some Observations: • Precedents and outcomes of MPPI likely to inform national approaches (e.g., hazardous waste determinations) for other types of e-waste • Increased focus on shipments for reuse and refurbishment • New ESM and recycling initiatives • Increased pressure on EPA to address e-waste exports (e.g., CRT rule) • U.S. State efforts to prohibit e-waste exports to non-OECD (e.g., Washington State) • New approaches for e-waste management?