02-32547. Regulatory Innovations:

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

Many used cathode ray tubes (CRTs) are currently classified as characteristic hazardous wastes under the Resource Conservation and Recovery Act (RCRA). Such CRTs are therefore subject to the hazardous waste regulations of RCRA Subtitle C unless they come from a household or a conditionally exempt small quantity generator. Today EPA is taking direct final action on a revision to its hazardous waste program under RCRA to exclude used CRTs and glass removed from CRTs from the definition of “solid waste” in the EPA Region III Mid-Atlantic States (which include the States of Delaware, Maryland, and West Virginia, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia). Additionally, the preamble to this rule clarifies when used CRTs and other used electronic equipment become a “solid waste.” This rule will support an ongoing e-Cycling Pilot Project of EPA Region III's Mid-Atlantic States, which is promoting reuse and recycling of electronics. EPA believes that today's direct final rule will encourage increased recycling and better management of these materials in Region III states.

EPA has proposed a similar, albeit broader, conditional exclusion for CRTs and certain other electronic materials that would be effective nationwide (June 12, 2002, 67 FR 40508-40528). EPA is promulgating this regional rule now because it believes that implementing the rule in the Region III states will produce information about the CRT conditional exclusion that will be useful to EPA as it assesses the appropriateness of adopting the RCRA exclusion nationally. EPA expects to withdraw the regional rule if and when a final national rule becomes effective.

DATES:

This direct final rule is effective on February 24, 2003 without further notice, unless EPA receives adverse comment by January 27, 2003. If we receive such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Comments may be submitted by mail or electronically. Commenters must send an original and two copies of their comments referencing docket number III-02-OEI-01 to: Marie Holman (3EI00), U.S. EPA Region III, Office of Environmental Innovation, 1650 Arch Street, Philadelphia, PA 19103-2029 or [e-mail]. Further detailed instructions are provided in the Electronic Comment Submission section of the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT:

For general information about the management of solid waste under RCRA, contact the RCRA/Superfund/EPCRA/UST Hotline at [phone] (toll free) or TDD [phone] (hearing impaired). For more detailed information on specific aspects of this rulemaking, contact Ms. Marie Holman by U.S. mail at U.S. EPA Region III (3EI00), 1650 Arch Street, Philadelphia, Pennsylvania, 19103-2029, by telephoning 215-814-5463, or by electronic mail at: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Does This Direct Final Rule Relate to the Proposed Pilot-Specific Rule for Electronic Materials in the EPA Region III Mid-Atlantic States; Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes?

EPA is promulgating this as a direct final rule (amending RCRA's definition of solid waste) without prior proposal because it views this as a noncontroversial submittal and anticipates no adverse comments. Also, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document entitled “Proposed Pilot-Specific Rule for Electronic Materials in the EPA Region III Mid-Atlantic States; Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes” that will serve as a proposed rule if adverse comments are filed. The direct final rule will be effective February 24, 2003 without further notice unless we receive adverse comment by January 27, 2003. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

B. How Can I Get Copies of Related Information?

1. Docket

EPA has established an official public docket for this action under RCRA Docket ID No. III-02-OEI-01. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Region III Library, 1650 Arch Street, Philadelphia, PA 19103. This Docket Facility is open from 9 a.m. through 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, it is recommended that you make an appointment by calling Marie Holman at 215-814-5463. You may copy a maximum of 100 pages from any file maintained at the docket at no charge. Additional copies cost $0.15 per page.

2. Access to Information

You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr/​. You can also review some of the supporting documents for the national proposed rule (June 12, 2002, 67 FR 40508-40528) (which supports the regional rule), in electronic format on the Internet at URL: http:/www.epa.gov/​epa/​epaoswer/​hazwaste/​recycle/​electron/​crt.htm.

You may view public comments and the supporting materials for the issues and memoranda discussed below at U.S. EPA Region III Library, 1650 Arch Street, Philadelphia, PA 19103. The library is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, it is recommended that the you make an appointment by calling Marie Holman at 215-814-5463.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in I.B.1.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

C. How and To Whom Do I Submit Comments?

You may submit comments electronically or by mail. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in I.B.2 and I.D.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to [e-mail], Attention Docket ID No. III-02-OEI-01. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

ii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in I.B. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send an original and two copies of you comments referencing docket number III-02-OEI-01 to Marie Holman, Office of Environmental Innovation (3EI00), U.S. EPA, 1650 Arch Street, Philadelphia, PA 19103-2029.

D. How Should I Submit CBI to the Agency?

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. This information needs to be submitted under separate cover. Send information (original and two copies of CBI) identified as CBI only to the following address: Marie Holman, Office of Environmental Innovation (3EI00), U.S. EPA, 1650 Arch Street, Philadelphia, PA 19103-2029, Attention Docket ID No. III-02-OEI-01. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

E. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

F. Compliance Date

This direct final rule is effective on February 24, 2003 without further notice, unless EPA receives adverse comment by January 27, 2003. If we receive such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. (Under section 3010 of RCRA, rules may take effect in less than six months if the regulated community does not need the six-month period to come into compliance. That is the case here because the rule reduces, rather than increases, the existing requirements for persons handling used CRTs and glass removed from CRTs sent for recycling. EPA believes that 60 days provides adequate time to come into compliance with the new, less burdensome labeling and other requirements contained in the rule.)

Preamble Outline

I. Legal Authority

II. List of Abbreviations and Acronyms

III. State-EPA Region III ECOS e-Cycling Project Background

A. What is the State-EPA Region III e-Cycling Pilot Project?

B. What is the Relationship of this Rule to the State-EPA Region III e-Cycling Pilot Project?

C. How Does this Rule Differ from the Proposed National CRT Rule?

IV. Cathode Ray Tubes

A. What Is the Purpose of EPA's Direct Final Rule?

B. What Are Cathode Ray Tubes?

C. Why Are Cathode Ray Tubes An Environmental Concern?

D. How Are Used Cathode Ray Tubes Currently Managed?

E. How Do EPA's Current Regulations Apply to CRTs and Other Electronic Materials?

F. What Are The Common Sense Initiative (CSI) Recommendations?

G. Requirements for Used CRTs Undergoing Recycling

V. State Authority

A. Applicability of Rules in Authorized EPA Region III's States

B. Effect on State Authorization

C. Interstate Transport

VI. Regulatory Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq.

C. Submission to Congress and the Comptroller General

D. Paperwork Reduction Act

E. Unfunded Mandates

F. Executive Order 13132

G. Executive Order 13175

H. Executive Order 13045

I. Executive Order 13211

J. National Technology Transfer and Advancement Act of 1995

K. Environmental Justice

I. Legal Authority

These regulations are promulgated under the authority of Sections 2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), and as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6922, 6924, and 6926.

II. List of Abbreviations and Acronyms

CES Computers and Electronics Subcommittee

CESQG Conditionally Exempt Small Quantity Generators

CFR Code of Federal Regulations

CRT Cathode Ray Tube

CSI Common Sense Initiative

ECOS Environmental Council of States

FPD Flat Panel Display

LDR Land Disposal Restrictions

LQG Large Quantity Generator

RCRA Resource Conservation and Recovery Act

SQG Small Quantity Generator

TC Toxicity Characteristic

TCLP Toxicity Characteristic Leaching Procedure

TSDF Treatment, Storage and Disposal Facility

TV Television

WTE Waste-to-Energy

III. State-EPA Region III ECOS e-Cycling Project Background

A. What is the State-EPA Region III e-Cycling Pilot Project?

Over the past several years EPA Region III and its states have been working together to improve the management of end-of-life electronics. Representatives of original equipment manufacturers, retailers, transporters, dismantlers, and government agencies have met to identify barriers to successful recycling of end-of-life electronics, and to propose possible solutions. Region III and the states then developed the State-EPA Region III e-Cycling Pilot Project to test different regional approaches. The purpose of the Pilot Project is to significantly increase the number of end-of-life electronics that are recycled and to determine whether the approaches being implemented in EPA Region III's states will achieve this goal.

To help achieve the increased recycling objective, the states in the Mid-Atlantic Region of EPA have agreed to work with local governments having jurisdiction over waste collection activities. Assistance to the local governmental agencies will include the development of outreach materials (such as model press releases, public service announcements, brochures, fact sheets and newspaper advertisements) to gain greater participation in the e-Cycling Pilot Project. It is anticipated that these tools and others will facilitate the collection of end-of-life electronic materials from households, small businesses, and other entities. Some states may provide seed money to local governments to assist them in starting up their collection activities. EPA has also provided funding to assist the Region III states in implementing the Pilot Project. These funds will be used to develop public education and outreach materials, collect pertinent data, and provide general support to the e-Cycling Pilot Project.

It is expected that partnerships with electronic equipment retailers, manufacturers, waste transporters and recyclers will be developed to assist in setting up the infrastructure necessary to transport and recycle these end-of-life electronic materials. For example, several retailers and manufactures already have or are planning “take back” programs to allow their customers to return end-of-life electronics to the place of purchase.

B. What Is the Relationship of This Rule to the State-EPA Region III e-Cycling Pilot Project?

In 2001, the States of Delaware, Maryland, and West Virginia, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia (EPA Region III's states) submitted to EPA Region III's Regional Administrator a proposal for regulatory innovation entitled, “Regulatory Exclusion for End-of-Life Electronic Materials that are Dismantled for Recovery of Useful Elements' (hereafter e-Cycling Pilot Project). This project proposal was submitted under the auspices of the 1998 Environmental Council of States (ECOS) Agreement to Pursue Regulatory Innovations, (FR May 5, 1998, 63 FR 24784-24796). EPA accepted the proposal in a Memorandum of Understanding (MOU) executed by EPA and Region III states in October, 2001. The MOU proposes a framework for managing end-of-life electronics in a way that is environmentally sound while encouraging the reuse and recycling of these materials. The MOU also recognizes the need for EPA to clarify its understanding of when these materials are “discarded” such that they are solid wastes.

To assist in implementing the pilot project, today EPA is promulgating a conditional exclusion from the definition of solid waste for used cathode ray tubes (CRTs) and glass removed from CRTs sent for recycling within Region III. In today's notice, the Agency is also clarifying the status of other “end-of-life electronics” sent for reuse and recycling under RCRA.

C. How Does This Rule Differ From the Proposed National CRT Rule?

As noted above, EPA is currently proposing a similar national rule. EPA has accelerated the regional rule because it believes that the prompt implementation of this rule in the Region III states, building on the existing Region III e-Cycling Project, will produce information about the CRT conditional exclusion that will be useful to EPA as it considers final action on the nationwide rule. EPA expects to withdraw the regional rule if and when a final national rule becomes effective.

The regional rule is narrower in scope. It only includes the conditional exclusion for used CRTs and processed CRT glass. The proposed national rule addresses mercury-containing equipment and export issues; the regional rule does not address these issues. Again, EPA expects to withdraw the regional rule if and when the final national rule becomes effective.

IV. Cathode Ray Tubes

A. What Is The Purpose of EPA's Direct Final Rule?

Technological advances in information management and communication have improved the quality of people's lives in countless ways. However, our growing use of electronic products at home and in the workplace has given us a new environmental challenge: electronics waste. Today's rule is an important step towards meeting the challenge of managing electronics waste in a way that is environmentally sound, while encouraging the reuse and recycling of these materials in EPA Region III's states.

EPA estimates that about 57 million televisions and computers are sold annually to households and businesses in the United States. Purchasers of these and other consumer electronics often do not discard older models when buying newer versions of the same products. Consumers (both business and household) frequently store their retired products. Experts agree that the average household may have between two and three television or computer units in storage. The number of units (mainly computers) stored by businesses is much greater. In total, approximately 20 to 24 million computers and televisions are added to storage each year. Over the next decade, storage is expected to increase at a faster rate because of advances in digital technology for televisions. Just as advances in computer speed and software have made older computers uneconomical to repair, newer digital broadcast standards are likely to reduce the repair and resale value of older televisions.

Recycling glass from computers and televisions is still largely a new industry. However, the number of units available for reuse or recycling is growing rapidly, and state and industry initiatives to promote recycling are increasing. EPA is eager to see this industry grow, in part because reusing and recycling these materials saves valuable natural resources and avoids their disposal in landfills and incinerators. The Agency must, of course, assure that materials under RCRA jurisdiction are managed in a way that protects human health and the environment.

EPA's Common Sense Initiative Council recommended streamlined nationwide requirements for CRT glass that is removed from computers and televisions and processed to make new CRT glass. The conditional exclusion promulgated today for “glass-to-glass” processing grows out of these recommendations. The Council included representatives from industry, non-governmental and community organizations, state governments, and academic institutions.

Today, the Agency is promulgating a direct final rule which will revise management requirements for used CRTs and glass removed from CRTs by creating a conditional exclusion from the definition of solid waste for these materials when they are recycled within the EPA Region III states (see 40 CFR 261.4(a)(24)). The purpose of these simplified requirements is to encourage greater reuse, recycling, and better management of this growing waste stream, a problem particularly acute in the Region III states, while maintaining necessary environmental protection.

B. What Are Cathode Ray Tubes?

CRTs are vacuum tubes, made primarily of glass, which constitute the video display components of televisions and computer monitors. CRT sizes are typically measured from one corner; the diagonal of a CRT display generally ranges from 1 to 38 inches. Other types of CRTs include medical, automotive, oscilloscope, and appliance CRTs, which are typically 12 inches diagonal or smaller, while military and aircraft control tower CRTs may be much larger.

CRTs are built of a specialized glass that often contains lead. They consist of four major parts: a glass panel (faceplate); a shadow mask; a glass funnel; and a glass neck which houses the electron gun. The glass panel is the front of the CRT that the viewer sees when looking at a TV or computer screen. The shadow mask is a thin metal sheet with holes that is located immediately behind the glass panel. Attached to the back of the glass panel is the glass funnel. The panel and funnel are joined with the shadow mask and sealed together with a low-temperature glass frit, consisting of solder glass containing organic binders. The back end of the CRT is the glass neck that holds the electron gun. This gun produces the electrons that strike the glass panel, resulting in viewable images on the display surface. A CRT is assembled into a monitor, a unit that includes several other parts, including a plastic cabinet, electromagnetic shields, circuit boards, connectors, and cabling.

C. Why Are Cathode Ray Tubes An Environmental Concern?

Manufacturers generally use significant quantities of lead to make color cathode ray tubes. Televisions and color computer monitors contain an average of four pounds of lead (the exact amount depends on size and make). Lead is present in the panel glass, funnel, neck, and glass frit of color CRTs, with the highest concentrations usually found in the frit and funnel glass. Although the amount of lead used in some manufacturing processes of CRTs appears to be decreasing, most color CRTs contain quantities of lead sufficient to make the discarded CRT glass a hazardous waste under RCRA. Under Subtitle C of RCRA, a solid waste is a hazardous waste if it exhibits one or more of the characteristics of ignitability, corrosivity, reactivity, or toxicity in 40 CFR Part 261, Subpart C, or if it is a listed hazardous waste in Part 261, Subpart D. Of relevance here is the toxicity characteristic, 40 CFR 261.24, which classifies as a hazardous waste any solid waste containing five (5) milligrams per liter (mg/l) or more of lead when tested with EPA's toxicity characteristic leaching procedure (TCLP).

According to a study of CRTs published by the University of Florida, the average concentration of lead in leachate from colored CRT glass generated through EPA's TCLP was 22.2 mg/l. This level is considerably above the toxicity characteristic regulatory level of 5 mg/l that is used to classify lead-containing wastes as hazardous (40 CFR 261.24(b)). For monochrome CRTs, the average lead leachate concentration was 0.03 mg/l. These data appear to indicate that black and white monitors do not generally fail the TC. The faceplate also does not usually fail the TC.

Other hazardous constituents sometimes present in CRT glass are mercury, cadmium, and arsenic. However, these constituents are found in very low concentrations that are unlikely to exceed the TC concentration limits (see Characterization of Lead Leachability from Cathode Ray Tubes Using the Toxicity Characteristic Leaching Procedure, T.G. Townsend et al., University of Florida, 1999). Flat panel displays (FPDs) have emerged on the electronics market as a replacement for CRTs in certain applications, primarily because FPDs are lighter, smaller, and more portable, and they consume less energy during operation. FPDs generally contain no lead, but may contain encapsulated mercury in small amounts.

D. How Are Used Cathode Ray Tubes Currently Managed?

1. Reuse

Many used computers are resold or donated so that they can be used again, either as is or after minor repairs. Although the Agency has no legal jurisdiction over reused computers per se, we encourage this option as a responsible way to manage these materials, because preventing or delaying the generation of waste often conserves resources. This option extends the lives of valuable products and keeps them out of the waste management system for a longer time. Reuse also allows schools, non-profit organizations, and individual families to use equipment that they otherwise could not afford. Many markets for reuse of computers are located abroad, particularly in countries where few may be able to purchase state-of-the-art new equipment.

Organizations which handle used computers vary from area to area. In some cases, nonprofit organizations such as charities and school districts take donations of used computer equipment. These organizations may test the equipment, and, if necessary, rewire it and replace various parts, including the electron gun, before sending them for reuse. In other cases, the entities that collect the CRTs send them to another organization with more expertise for evaluation and possible repair and reuse. CRTs that cannot be used after such minor repairs may be sent to recycling or disposal. CRTs from televisions are more likely to be repaired by appliance dealers or small repair shops before reuse.

2. Recycling

a. Collection of Used CRTs

If reuse or repair is not a practical option, CRTs can be sent for recycling, which typically consists of disassembly for the purpose of recovering valuable materials from the CRTs, especially glass. A growing number of municipalities are offering to collect computers and electronics for recycling. In addition, public and private organizations have emerged that accept such materials for the same purpose. Examples of such organizations include county recycling drop-off centers, television repair shops, charities, electronics recycling companies, and electronics manufacturers and retailers.

An increasing number of electronics manufacturers are offering to take back computer CRTs for recycling. In some cases, these services are provided free. In other cases, a fee is charged, usually for shipping and handling. Take-back programs have been available for some time to major corporations and large purchasers of electronic equipment. Now, electronics manufacturers are beginning to offer similar services for computer CRTs to small businesses and households.

b. Recycling of Unused CRTs and Unused CRT Glass

Makers of glass for CRTs recycle some of the glass they produce because it does not meet product specifications. EPA estimates that about one or two percent of glass production results in unused, off-specification products. This glass is generally recycled into new CRT glass. The glass may be recycled on-site at a CRT glass manufacturing facility, or it may be sent to a glass processor. Computers and television manufacturers also find that a small percentage of assembled monitors are “off-specification.” They may send these unused devices to a glass processor.

c. Glass Processing and Other Materials Recovery

CRT glass processors that accept used CRTs generally receive them from three sources: the glass manufacturers described above (who supply most of the glass), manufacturers of monitor units who decide not to sell off-specification monitors, and businesses who provide used computers or televisions, which at present are a much smaller source.

The used CRTs are typically stored in a warehouse. When the processing begins, the CRT display unit is dismantled, and the bare CRT is separated from all other parts (usually glass, plastic, or metal). Next, the vacuum is released by drilling through the anode, a small metal button in the funnel. The different glass portions of the CRT (faceplate, funnel, and neck) are then separated and classified according to chemical composition, especially by the amount of lead contained. The same sorting takes place for broken glass received from CRT glass manufacturers, which is separated into leaded and non-leaded glass. All glass is then cleaned and the coatings removed. The sorted and cleaned cullet (i.e., processed glass) is then typically stored in enclosed areas before it is shipped off-site to a CRT glass manufacturer (or sometimes to a smelter or to manufacturers of other kinds of glass). When a CRT glass manufacturing facility receives a shipment of processed CRT glass, it removes the anode button and further crushes the glass, which then enters a furnace to be heated and made into new CRT glass.

Sometimes the processed glass is sent to a lead smelter where it is recycled to reclaim the lead and to provide silica, which acts as a fluxing agent in the smelter. These uses often occur if the glass does not meet the specifications for CRT glass. The cleaning process described above also generates glass fines that are collected and sold to lead smelters to be used as a fluxing agent. In addition, processed CRT glass may be sent to copper smelters, also for use as a flux. Sometimes other types of production facilities use processed CRT glass to make objects such as radiation shielding, acoustical barriers, optical glass beads, or decorative glass and tile products. The market for these recycled glass items is currently limited, but may grow in the future.

3. Disposal

Many consumers do not wish to discard monitors and TVs if they can be recycled. Many or most CRTs therefore remain in storage. Of the CRTs that are disposed of by households, most go to municipal landfills, and others to municipal waste-to-energy (WTE) facilities. Only a small percentage are recycled (see Life Cycle Assessment of the Disposal of Household Electronics, D. McKenna et. al., August 1996, which indicated that only one percent of CRTs from households were recycled). Some CRTs from non-household sources are also placed in municipal landfills. Some states (such as Massachusetts and California) have banned CRTs from all sources from landfills.

E. How Do EPA's Current Regulations Apply to CRTs and Other Electronic Materials?

As described above, CRT glass often exhibits the toxicity characteristic (TC) for lead because this constituent is used to make most CRT glass. Whether a person or facility is currently subject to the RCRA hazardous waste regulations depends on several factors, including whether the CRT will be recycled or disposed and the type of user. RCRA Subtitle C regulations set forth requirements for hazardous waste generators, transporters, and owners and operators of treatment, storage, and disposal facilities (TSDFs). EPA regulations also contain exclusions for certain wastes from the definition of solid waste or hazardous waste (40 CFR 261.4)(a) and (b)). However, EPA has developed streamlined rules for particular wastes, including recyclable wastes (40 CFR part 266) and universal wastes such as batteries, pesticides, thermostats, and lamps that are widely generated by different industries (40 CFR part 273). Following is a brief description of how different entities are currently regulated.

1. Who Is Regulated and Who Is Not?

a. Households

Households that dispose of or recycle CRTs are exempt from hazardous waste management requirements under 40 CFR 261.4(b)(1). Households may therefore send their used computer and television monitors to any facility or collector for recycling or disposal without being subject to RCRA Subtitle C regulation. Other facilities managing household hazardous waste (such as collectors, recyclers, or disposers) continue to be exempt from hazardous waste requirements unless the household waste is mixed with other regulated hazardous waste.

b. Non-Residential Generators

Non-residential generators of less than 100 kilograms (about 220 lbs) of hazardous waste (including CRTs) in a calendar month are known as conditionally exempt small quantity generators (CESQGs) and are not subject to most RCRA Subtitle C hazardous waste management standards. The Agency notes that about seven or eight CRTs would be sufficient to weigh 220 lbs (assuming that each monitor weighed 30 lbs). These CESQGs may choose to send their wastes to a municipal solid waste landfill or other facility approved by the state for the management of industrial or municipal non-hazardous wastes, including recycling facilities (40 CFR 261.5). Generators of more than 100 kilograms (about 220 lbs) and less than 1,000 kilograms (about 2,200 lbs) of hazardous waste (including CRTs) in a calendar month are considered small quantity generators (SQGs) and are subject to the RCRA hazardous waste management standards, but are allowed to comply with certain reduced regulatory requirements (40 CFR 262.34(d)). Generators of more than 1,000 kilograms (about 2,200 lbs) of hazardous waste in a calendar month are considered large quantity generators (LQGs) and are subject to all the applicable hazardous waste regulations for generators (40 CFR 262.34(a)). CRTs that are not considered wastes should not be counted in determining whether a generator is a CESQG, SQG, or LQG.

2. When Do CRTs Become Wastes?

To determine whether a non-residential facility with used CRTs must comply with the RCRA hazardous waste regulations, the user must first determine if its used CRTs are solid wastes. Following is a brief description of how solid waste determinations for CRTs are made under federal law. (However, the Agency notes that all Region III states' regulatory agencies are authorized to implement the hazardous waste program in lieu of the federal program, and state regulations may be more stringent than the federal regulations. Users should, therefore, consult with the appropriate state agency before making their determinations.)

a. Reuse and Repair of Used CRTs

EPA has consistently taken the view that materials used and taken out of service by one person are not wastes if a second person puts them to the same type of use without first “reclaiming” them (see 50 FR 624, January 5, 1985). Many CRTs are taken out of service by both businesses and households not because they can no longer be used, but because users are upgrading their systems to take advantage of the rapid advances that have resulted in better and faster electronics. Businesses and organizations upgrading their computers often replace the entire computer system, including the monitors. A working CRT-containing unit considered obsolete by one user is therefore likely to be capable of reuse as a computer monitor or a television monitor by another user.

Many businesses and organizations that take CRTs out of service do not have the specialized knowledge needed to determine whether the unit can be reused as a computer or television display unit. Moreover, those entities often do not decide whether a particular CRT will, in fact, be reused. Many businesses and other organizations send used computers and televisions to resellers. Resellers often test CRTs or otherwise decide if the CRTs can be reused directly, if they can be reused after minor repairs, or if they must be sent for further processing or disposal. Because the typical original user usually lacks the specialized knowledge needed to decide the future of a CRT, EPA is today clarifying that we do not consider a user sending a CRT to a reseller for potential reuse to be a RCRA generator.

Furthermore, EPA today clarifies that used CRTs undergoing repairs before resale or distribution are not being “reclaimed,” and are considered to be products “in use” rather than solid wastes. Resellers of used CRTs generally test and identify equipment that can be resold or is economically repairable. Sometimes the equipment is collected and redistributed for reuse with no repairs. If repairs are necessary, they typically consist of rewiring, replacing defective parts, or replacing the electron gun. Under these circumstances, the CRT would still be considered a commercial product rather than a solid waste. EPA believes that these repairs and replacement activities do not constitute waste management.

As discussed below in section III.E.3, EPA also applies these principles to other “end-of-life” electronic devices, which also would not be wastes if sent to resellers for potential reuse.

This regulatory interpretation for CRTs and other “reused” electronics is not unique to Region III states; it applies nationwide, as EPA stated in the national CRT proposal. See 67 FR. 40508, 40511 (June 12, 2002).

b. Unused CRTs Sent for Recycling

Sometimes manufacturers of computers and televisions send unused CRTs (usually off-specification CRTs) directly to glass processors who break the CRTs and separate out the glass components. Generally, the processor then sends the processed glass to a glass-to-glass recycler or to another recycling facility, such as a lead smelter. Although EPA could consider these activities to constitute reclamation, the Agency does not regulate the reclamation of either listed or characteristic unused commercial chemical products (see 50 FR 14219, April 11, 1985). EPA considers unused CRTs to be unused commercial chemical products. Therefore, these materials are not solid wastes when sent for reclamation.

c. Used CRTs Sent For Recycling

Under the current RCRA regulations, used CRTs sent directly to glass processors or other recyclers could, under some circumstances, be considered spent materials undergoing reclamation, and could therefore be solid wastes. However, as explained elsewhere in this notice, EPA believes that under some circumstances used CRTs sent for recycling do not resemble spent materials. Therefore, the Agency is today promulgating an exclusion from the definition of solid waste for used CRTs being recycled in Region III states if they are managed under certain conditions. Users and resellers sending used CRTs to recyclers should check with their authorized states to see which RCRA Subtitle C requirements, if any, are applicable to their activities.

d. Disposal

If a non-household entity decides to send used or unused CRTs directly to a landfill or an incinerator for disposal, that entity would be considered the generator of a solid waste. The person making the decision must determine if the CRTs exhibit a hazardous waste characteristic under 40 CFR Part 261, Subpart C. He may either test the CRTs or use process knowledge to make this determination. As stated above, many or most CRTs from color computer or television monitors exhibit the toxicity characteristic (TC) for lead. Although EPA's data indicate that most CRTs from black and white monitors do not fail the TC, those that do are subject to all applicable hazardous waste management requirements. When a decision is made to dispose of hazardous waste CRTs, the non-residential user, reseller, or manufacturer must comply with all applicable hazardous waste generator requirements of 40 CFR Part 262, including packaging and labeling, 90-day accumulation requirements, use of the hazardous waste manifest, and recordkeeping and reporting (unless the generator is a CESQG).

Some companies ship their waste CRTs to hazardous waste landfills for disposal. Used CRTs generated by a non-residential facility that fail the TC for lead must meet applicable land disposal restrictions (LDRs), 40 CFR Part 268, before being placed in a land-based unit, such as a landfill. These restrictions do not apply to CRTs generated by households or CESQGs. To meet LDRs, the CRT glass must be treated so that the TCLP lead concentration does not exceed 0.75 mg per liter. This concentration level is generally achieved by crushing and stabilizing the glass through the addition of chemicals which reduce the solubility of lead when contacted by leachate.

3. When Do Non-CRT Electronic Materials Become Wastes?

In 1992, the Agency issued a memorandum to its EPA Regional Waste Management Directors stating that used whole circuit boards are considered to be scrap metal when sent for reclamation, and therefore exempt from regulation under RCRA. The Agency has also addressed printed circuit boards in the Land Disposal Restrictions Phase IV rulemaking (see 62 FR 25998, May 12, 1997). In that rulemaking, the Agency provided an exclusion from the definition of solid waste at 40 CFR 261.4(a)(14) for shredded circuit boards being reclaimed, provided they are stored in containers sufficient to prevent a release to the environment prior to recovery and provided they are free of mercury switches, mercury relays, nickel-cadmium batteries and lithium batteries. Subsequently, on May 26, 1998 (63 FR 28556), the Agency clarified that the scrap metal exemption applies to whole used circuit boards that contain minor battery or mercury switch components and that are sent for continued use, reuse, or recovery. In that notice, EPA stated that it was not the Agency's intent to regulate under RCRA circuit boards containing minimal quantities of mercury and batteries that are protectively packaged to minimize dispersion of metal constituents. Once these materials are removed from the boards, they become a newly generated waste subject to a hazardous waste determination. If they meet the criteria to be classified as a hazardous waste, they must be handled as hazardous waste; otherwise, they must be managed as a solid waste.

The Agency is studying certain non-CRT electronic materials to determine whether they consistently exhibit a characteristic of hazardous waste. However, we are not currently aware of any non-CRT computer components or electronic products that would generally be hazardous wastes. With respect to these materials, the Agency will use the same line of reasoning that is outlined above for CRTs to determine if the materials are solid wastes. That is, if an original user sends electronic materials to a reseller because he lacks the specialized knowledge needed to determine whether the units can be reused as products, the original user is not a RCRA generator. The materials will not be considered solid wastes until a decision is made to recycle them in other ways or dispose of them.

F. What Are The Common Sense Initiative (CSI) Recommendations?

From 1994 through 1998, EPA's Common Sense Initiative (CSI) explored the environmental regulation of six industry sectors and looked for ways to make environmental regulation “cleaner, cheaper, and smarter.” EPA established CSI as an advisory committee (the “CSI Council”) under the Federal Advisory Committee Act. The CSI Council included representatives from each industry sector, from non-governmental environmental and community organizations, from state governments, and from colleges and universities. EPA also established subcommittees of the Council for each industry sector. The subcommittees included representatives of the various stakeholders represented in the CSI Council. One of the industry sectors selected for this initiative was the computer and electronics industry. The CSI Computers and Electronics Subcommittee (CES) then formed a workgroup to examine regulatory barriers to pollution prevention and recycling. The workgroup (known as the “Overcoming Barriers Workgroup”) explored the problems of managing mounting volumes of outdated computer and electronics equipment.

One of the concerns investigated by the Overcoming Barriers Workgroup and the CES was the barrier to CRT recycling created by some existing hazardous waste management regulations. The CES urged that removing such barriers was essential to fostering CRT recycling, especially glass-to-glass recycling. The Subcommittee believed that CRT recycling would provide the following benefits: (1) Less lead sent to landfills and combustors; (2) added resource value of specialty glass and lead; (3) lower waste management costs; (4) less regulatory uncertainty about CRT recovery and recycling; (5) less use of raw lead in CRT glass manufacturing; (6) better melting characteristics, improved heat transfer, and lower energy consumption in CRT glass manufacturing furnaces; (7) improved CRT glass quality; and (8) lower emissions of lead from CRT glass manufacturing. The CES Subcommittee indicated that some recycling methods or end products (other than those associated with glass-to-glass recycling) may pose risks to human health and the environment and would require further investigation.

As a result of the findings of the CES Subcommittee, the CSI Council issued a document entitled, “Recommendation on Cathode Ray Tube (CRT) Glass-to-Glass Recycling.” In this document, the Council recommended streamlining regulatory requirements for CRTs that would encourage recycling and better management. The recommendations included revised requirements for packaging, labeling, transportation; general performance standards for glass processors; and export provisions. The CSI Council also recommended an exclusion from the definition of solid waste for processed glass that is used to make new CRT glass. In today's notice, EPA creates an exclusion from the definition of solid waste for Region III states which will simplify management requirements for used CRTs. Although the requirements promulgated today differ in some respects from those recommended by the CSI Council, we believe that they will be just as effective in fostering the goals of the Council. EPA has proposed a similar nationwide exclusion and expects to use information gained from this regional pilot in assessing the proposed nationwide rulemaking.

G. Requirements for Used CRTs Undergoing Recycling

1. What Will Not Be Affected By Today's Rule?

All materials discussed above that are not currently regulated under RCRA will remain unaffected by today's rule. Used CRTs from households and CESQGs will retain their current regulatory exemptions. Used CRTs from any source, along with electronic materials that are sent for reuse as is or after minor repairs, are not wastes. Section 261.4(a)(24) will provide better notice of this interpretation of our current regulations. Unused CRTs sent for recycling will still be classified as commercial chemical products which are not solid wastes even if they are reclaimed or speculatively accumulated. Finally, both used and unused CRTs sent for disposal will also remain regulated as before.

2. What Is Covered By Today's Rule and What Are the Management Requirements?

Today's rule principally addresses used CRTs, and glass removed from CRTs, destined for recycling in Region III states. The regulations we are promulgating today do distinguish between intact CRTs, and CRTs that are broken. An intact CRT is a CRT remaining within the monitor whose vacuum has not been released. A broken CRT means glass removed from the monitor after the vacuum has been released. EPA notes that these definitions also cover non-consumer CRTs such as medical, automotive, oscilloscope, and appliance CRTs.

a. Used, Intact CRTs Destined for Recycling Within Region III

Today's rule excludes intact CRTs located within Region III states from the definition of solid waste unless they are disposed. Consequently, these units would not be subject to RCRA Subtitle C regulation, including the speculative accumulation limits of 40 CFR § 261.2(c)(4).

As noted above, unused CRTs are currently considered commercial chemical products which are excluded from the definition of solid waste when recycled, even if they are reclaimed or speculatively accumulated. Intact CRTs are highly unlikely to release lead to the environment because the lead is contained in the plastic housing and the glass matrix. We believe that it would be very difficult to distinguish between used and unused intact CRTs destined for recycling. Moreover, there appears to be no environmental basis for such a distinction. Therefore, EPA is including all intact CRTs in this pilot-specific rule unless they are disposed, whether used or unused.

b. Used, Broken CRTs Destined for Recycling Within Region III

Some users and collectors of CRTs separate the CRT from the monitor and release the vacuum, after which they send the resulting broken glass to a recycler (often a glass processor). This practice saves shipping costs and enables the glass processor to pay more for the broken CRTs received. At other times, the CRTs remain intact until broken by the processor or another recycler. In any event, CRTs whose glass has been broken are non-reusable and non-repairable; and therefore, prior to this rule were solid wastes at the time such breakage occurs.

EPA is today amending 40 CFR part 261 to add a new section 261.40, which will provide that used, broken CRTs located within Region III states are excluded from the definition of solid waste if they meet specified conditions. Under today's rule, used, broken CRTs sent for recycling would not be solid wastes if they are transported in an appropriate container, and stored in an appropriate container in an enclosed building. An appropriate container (i.e., a package or a vehicle) is one that is constructed, filled, and closed to minimize identifiable releases of CRT glass (including fine solid materials) to the environment. Each container in which the used, broken CRT is contained must be labeled or marked clearly with one of the following phrases: “Waste cathode ray tube(s)—contains leaded glass,” or “Used cathode ray tube(s)—contains leaded glass.” It must also be labeled or marked: “Do not mix with other glass materials.” An enclosed building must include a roof, floor, and walls. Finally, used, broken CRTs destined for recycling in Region III states also would not be allowed to be speculatively accumulated as defined in 40 CFR 261.1.

The Agency believes that if these materials are properly containerized and labeled when stored or shipped prior to recycling, they resemble articles in commerce or commodities more than wastes. Breakage is a first step toward recycling the leaded glass components of the CRT. Also, materials held in conditions that safeguard against loss are more likely to be regarded as valuable commodities destined for legitimate recycling. In addition, the packaging requirements will ensure that the possibility of releases to the environment from the broken CRTs is very low. For these reasons, an exclusion from the definition of solid waste is appropriate if the broken CRTs are handled under the rule being promulgated today.

c. Used, Broken CRTs Undergoing Glass Processing Within EPA Region III

The Agency also promulgates today an exclusion from the definition of solid waste for used CRTs undergoing glass processing within EPA Region III, as long as the processing meets certain conditions. CRT glass processing is defined in 40 CFR 260.10 as receiving intact or broken used CRTs, intentionally breaking them, sorting or otherwise managing glass removed from CRT monitors, and cleaning coatings from the glass. As noted above, CRT users and collectors sometimes break CRTs before sending them to a processor. Therefore, breaking used CRTs would not by itself subject a facility to the CRT glass processing conditions. In order to be classified as a used CRT glass processor, the facility must perform all of the activities listed above.

The provisions of today's rule, set forth in 40 CFR 261.40, state that used, broken CRTs undergoing glass processing would not be considered solid wastes if they are stored in an enclosed building with a roof, floor, and walls. In addition, all glass processing activities must take place within an enclosed building with a roof, floor, and walls, and no activities may be performed that use temperatures high enough to volatilize lead from used, broken CRTs. The exclusion set forth today does not allow used, broken CRTs to be speculatively accumulated, as defined in 40 CFR 261.1.

EPA believes that the packaging and storage conditions being promulgated today will help ensure that the materials in question are more commodity-like than waste-like. Used, broken CRTs that are not stored or packaged in accordance with these requirements tend not to be valuable, product-like materials. The opportunity for loss or releases of the materials indicates that they are wastes. As specifically recommended by the CSI Council, we are also providing that processors will be required to conduct their activities without using temperatures high enough to volatilize lead from broken CRTs. Besides increasing the risk of releases to the environment, such practices suggest waste treatment rather than production.

d. Processed Glass From Used CRTs Sent for Recycling to Glass Manufacturers and Lead Smelters Within Region III

In today's rule, EPA is excluding processed glass (from used CRTs) from the definition of solid waste if it is sent for recycling to a CRT glass manufacturer or to a lead smelter within Region III, as long as the processed glass is neither speculatively accumulated, nor used in a manner constituting disposal. 40 CFR 261.40(d).

EPA believes that processed glass from used CRTs destined for CRT glass manufacturing or to a lead smelting operation, located in Region III states, meets the regulatory criteria in 40 CFR 260.31(c) for a variance from the definition of solid waste. This variance applies to materials that have been reclaimed but must be reclaimed further before recovery is completed, if, after initial reclamation, the resulting material is commodity-like. The following paragraphs discuss the characteristics of processed CRT glass and how they meet the criteria.

i. The degree of processing a material has undergone and the degree of further processing that is required (40 CFR 260.31(c)(1))

Processed CRT glass needs minimal further processing by CRT glass manufacturers or lead smelters. CRT glass cullet is shipped to these facilities already cleaned and sorted. CRT manufacturers and smelters perform processing steps consisting only of magnetic separation of anode buttons and studs and, if necessary, further crushing of the glass. Following these steps, the partially reclaimed CRT glass enters the furnace or smelter, similar to other feedstocks used in glass manufacturing and smelting.

ii. The economic value of the material that has been initially reclaimed (40 CFR 260.31(c)(2))

The initial processing of CRT glass satisfies this criterion. CRT glass is usually purchased by CRT glass manufacturers from processors for at least $170 per ton (approximately three-fourths of the price of virgin glass). In contrast, lead smelters are usually paid at least $150 per ton by processors for CRT glass used as fluxing material and lead feedstock. However, lead smelters only pay an average of about six dollars per ton for industrial sand used as a fluxing material. Broken glass from CRTs resembles industrial sand in composition and can therefore serve as a substitute for this sand in the fluxing process. The sand, however, is not expensive.

CRT glass manufacturers and lead smelters currently obtain processed CRT glass from processors and are working with the processors to increase the supply and quality of processed CRT glass, which may further increase its value. The value of processed CRT glass depends on whether manufacturers' specifications are met, and some glass chemistries require exacting specifications that make the processed glass more valuable if it meets those specifications. CRT glass manufacturers have stricter quality standards than lead smelters about the type of material that they can accept (e.g., cleaned, sized, free of coating and debris).

Further evidence of the economic value of reclaimed CRT glass is demonstrated by the cost savings realized by CRT glass manufacturers and lead smelters when using processed CRT glass. The use of processed CRT glass cullet benefits the manufacturer in several ways, such as improving heat transfer and melting characteristics in the furnaces, lowering energy consumption, and maintaining or improving the quality of the final product.

iii. The degree to which the reclaimed material is like an analogous raw material (40 CFR 260.31(c)(3))

Under this criterion, the partially reclaimed material must be similar to an analogous raw material or feedstock for which the material may be substituted in a production or reclamation process. Processed CRT glass is similar to off-specification glass and cullet that manufacturers currently use as feedstock. Glass-making furnaces require between approximately 30 and 70 percent cullet. With respect to lead smelters, processed CRT glass is similar to industrial sand that would otherwise be used as feedstock or flux in the smelter.

iv. An end market for the partially reclaimed material is guaranteed (40 CFR 260.31(c)(4))

The Agency believes that there is a strong end market for processed CRT glass. CRT glass manufacturers and lead smelters have developed relationships with CRT glass processors to increase the amount and quality of reclaimed CRT glass cullet available for glass-to-glass recycling and lead reclamation. In addition, CRT glass manufacturers have developed programs in which off-specification CRTs may be delivered directly to CRT processors for initial processing. The processed CRT glass is delivered to CRT glass manufacturers for use as feedstock in glass-to-glass manufacturing, or to lead smelters for recycling.

v. The extent to which the partially reclaimed material is handled to minimize loss (40 CFR 260.31(c)(5))

The Agency believes that current CRT glass industry practices are effective in minimizing losses and preventing releases. Processed CRT glass generally is stored indoors on a cement or asphalt pad. In most cases, the material is shipped in large capacity trucks that are covered with a tarp to minimize loss during transport. When the CRT glass manufacturers or lead smelters receive shipments, the glass is unloaded into a temporary holding area, inspected, and either loaded onto a conveyor belt for further processing or stored under cover. Following these steps, the reclaimed CRT glass enters the furnace feedstock stream or the smelter.

e. Processed Glass From Used CRTs Sent For Other Types of Recycling Within EPA Region III

Under today's rule, processed glass from used CRTs sent for recycling at a facility other than a glass manufacturer or a lead smelter will be excluded from the definition of solid waste only if additional conditions are met. The processed glass will have to be packaged and labeled in accordance with the requirements of 40 CFR 261.40(a). Also, speculative accumulation limits will apply.

As stated previously, processed glass is sometimes sent to copper smelters for recycling. It also may be sent for recycling into objects such as radiation shielding, acoustical barriers, optical glass beads, or decorative glass and tile products. The Agency believes that processed glass sent for such uses resembles a commodity more than a waste if it is packaged and labeled under these conditions. In addition, such packaging ensures that the possibility of releases to the environment is minimal.

f. Processed Glass From Used CRTs Used in a Manner Constituting Disposal Within EPA Region III

If processed glass is sent for any kind of recycling that involves land placement, it would be subject to the requirements of 40 CFR part 266, Subpart C, for recyclable materials used in a manner constituting disposal. The Agency is currently unaware of processed glass being recycled in this manner.

V. State Authority

A. Applicability of Rules in Authorized EPA Region III's States

Under section 3006 of RCRA, EPA may authorize qualified states to administer and enforce the RCRA hazardous waste program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271. Each of Region III's states is authorized to implement the RCRA program.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.

Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.

B. Effect on State Authorization

Today's rule is less stringent than the current federal program. Because states generally are not required to adopt less stringent regulations, the Region III states do not have to adopt these regulations for CRTs. However, because EPA is promulgating this rule to implement the October, 2001 MOU signed by the Region III states and EPA, EPA expects that the Region III states will take all necessary actions to implement this rule. Some Region III states may already be in the process of revising their regulations for these materials.

C. Interstate Transport

Because this rule applies within Region III states only, and some of these states may choose to implement slightly different, more stringent versions of today's rule, there may be cases when used CRTs or processed CRT glass will be transported through Region III or non-Region III states, with different regulations governing these wastes.

First, a waste originating in a Region III state which is implementing today's conditional exclusion from the definition of solid waste may be sent to or through any other state outside of Region III, where it is subject to the full hazardous waste regulations. In this scenario, for the portion of the trip through the originating state, and any other state where the waste is excluded, neither a hazardous waste transporter with an EPA identification number per 40 CFR 263.11 nor a manifest would be required. However, for the portion of the trip through the receiving state, and any other states that do not consider the waste to be excluded, the transporter must have a manifest, and must move the waste in compliance with 40 CFR part 263. In order for the final transporter and the receiving facility to fulfill the requirements concerning the manifest (40 CFR 263.20, 263.21, 263.22; 264.71, 264.72, 264.76 or 265.71, 265.72, and 265.76), the initiating facility should complete a manifest and forward it to the first transporter to travel in a state where the waste is not excluded. The receiving facility must then sign the manifest and send a copy to the initiating facility. EPA recommends that the initiating facility note in block 15 of the manifest (Special Handling Instructions and Additional Information) that the wastes are covered by an exclusion in the initiating state but not in the receiving facility's state.

Second, a hazardous waste generated in a state which does not provide an exclusion for the waste may be sent to a Region III state where it is conditionally excluded. In this scenario, the waste must be moved by a hazardous waste transporter while the waste is in the generator's state or any other states where it is not excluded. The initiating facility must complete a manifest and give copies to the transporter as required under 40 CFR 262.23(a). Transportation within the receiving state and any other states that exclude the waste need not require a manifest and need not be transported by a hazardous waste transporter. However, it is the initiating facility's responsibility to ensure that the manifest is forwarded to the receiving facility by any non-hazardous waste transporter and sent back to the initiating facility by the receiving facility (see 40 CFR 262.23 and 262.42). EPA recommends that the generator note in block 15 of the manifest (Special Handling Instructions and Additional Information) that the waste is excluded in the receiving facility's state but not in the generator's state.

Third, a waste may be transported across a state in which it is subject to the full hazardous waste regulations although other portions of the trip may be from, through, and to states in which it is excluded. Transport through the state must be conducted by a hazardous waste transporter and must be accompanied by a manifest. In order for the transporter to fulfill its requirements concerning the manifest (Subpart B of part 263), the initiating facility must complete a manifest as required under the manifest procedures and forward it to the first transporter to travel in a state where the waste is not excluded. The transporter must deliver the manifest to, and obtain the signature of, either the next transporter or the receiving facility.

VI. Regulatory Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735), the Agency must determine whether this regulatory action is “significant” and therefore subject to formal review by the Office of Management and Budget (OMB) and to the requirements of the Executive Order, which include assessing the costs and benefits anticipated as a result of this regulatory action. The Order defines “significant regulatory” action as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. Pursuant to the terms of Executive Order 12866, the Agency determined that the proposed national rule is a significant regulatory action. As such, the proposed national rule was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations are documented in the national docket.

We note that as part of the national CRT rulemaking, EPA conducted an economic analysis to estimate the cost savings, incremental costs, economic impacts and benefits to affected regulated entities nationally. A copy of the analysis (entitled, “Economic Analysis of Cathode Ray Tube Management, Notice of Proposed Rulemaking”) has been placed in the RCRA docket for the national rule for public review. No separate analysis has been conducted for this rule since it is considered to be included in the national proposed rule.

B. Regulatory Flexibility Act (RFA), as Amended By the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an Agency is required to publish a notice for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains EPA's determination.

The small entity analysis conducted for the proposed national rule indicates that streamlining requirements for CRTs is expected to result in savings to affected entities compared to baseline requirements. Under the full compliance scenario, the rule is not expected to result in a net cost to any affected entity. Thus, adverse impacts are not anticipated. Costs could increase for entities that are not complying with current regulatory requirements, but even these costs, which are not properly attributable to the current requirements, would not be expected to result in significant impacts on a substantial number of small entities. Based on the foregoing discussion, I hereby certify that this rule will not have a significant adverse economic impact on a substantial number of small entities. Consequently, the Agency has determined that preparation of a formal Regulatory Flexibility Analysis is unnecessary.

C. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, including a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 844(2). It will take effect on [insert date—60 days after publication] unless it is otherwise withdrawn.

D. Paperwork Reduction Act

The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared (ICR No. 1189.10) and a copy may be obtained by mail from Susan Auby at Collection Strategies Division, U.S. Environmental Protection Agency (Mail Code 2822T), 1200 Pennsylvania Avenue NW., Washington, DC 20460, by email at [e-mail], or by calling [phone]. A copy may also be downloaded off the internet at http://www.epa.gov/​icr. The information collection requirements are not effective until OMB approves them.

The information requirements established for this action, and identified in the Information Collection Request (ICR) supporting today's rule, are largely self-implementing. This process will ensure that: (i) Regulated entities managing CRTs are held accountable to the applicable requirements; and (ii) state inspectors can verify compliance when needed.

EPA will use the collected information to ensure that CRTs are being managed in a protective manner. These data aid the Agency in tracking waste shipments and identifying improper management practices. In addition, information kept in facility records helps handlers, processors, and destination sites to ensure that they and other facilities are managing these wastes properly. Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which define EPA's general policy on the public disclosure of information, contain provisions for confidentiality. However, no questions of a sensitive nature are included in any of the information collection requirements associated with today's action.

EPA has carefully considered the burden imposed upon the regulated community by the regulations. EPA is confident that those activities required of respondents are necessary and, to the extent possible, has attempted to minimize the burden imposed. EPA believes strongly that if the minimum requirements specified under the regulations are not met, neither the facilities nor EPA can ensure that used CRTs are being managed in a manner protective of human health and the environment.

For the requirements applicable to CRTs being proposed nationally, the aggregate annual burden to respondents over the three-year period covered by this ICR is estimated at 10,426 hours, with a cost of approximately $687,000. Average annual burden hours per respondent are estimated to be 7 hours; there are an estimated 2,400 respondents. This represents a reduction in burden to respondents of approximately 18,616 hours. There are no capital or start-up costs, operation or maintenance costs, and no costs for purchases of services. Nor is there any burden to the Agency. The regional burden will therefore be reduced proportionally.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

E. Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The Agency's analysis of compliance with the Unfunded Mandates Reform Act (UMRA) of 1995 found that today's rule imposes no enforceable duty on any state, local or tribal government or the private sector. This rule contains no federal mandates (under the regulatory provisions of title II of the UMRA) for state, local, or tribal governments or the private sector. In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. The Act generally excludes from the definition of “federal intergovernmental mandate” (in sections 202, 203, and 205) duties that arise from participation in a voluntary federal program. Today's rule is voluntary. The UMRA also excludes from the definition of “federal private sector mandate” duties that arise from participation in a voluntary federal program. Therefore, we have determined that today's rule is not subject to the requirements of sections 202 and 205 of UMRA.

F. Executive Order 13132

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

G. Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the federal government and the Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175.

H. Executive Order 13045

“Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that EPA determines (1) “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potential effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866.

I. Executive Order 13211

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today's rule revises hazardous waste management requirements for used cathode ray tubes. By encouraging reuse and recycling, the rule may save energy costs associated with manufacturing new materials. It will not cause reductions in supply or production of oil, fuel, coal, or electricity. Nor will it result in increased energy prices, increased cost of energy distribution, or an increased dependence on foreign supplies of energy.

J. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA,” Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, though OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not establish technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

K. Environmental Justice

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations' (February 11, 1994) is designed to address the environmental and human health conditions of minority and low-income populations. EPA is committed to addressing environmental justice concerns and has assumed a leadership role in environmental justice initiatives to enhance environmental quality for all citizens of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, income, or net worth bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs, and activities. In response to Executive Order 12898, EPA's Office of Solid Waste and Emergency Response (OSWER) formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3-17). To address this goal, EPA conducted a qualitative analysis of the environmental justice issues under the national proposed rule. Potential environmental justice impacts are identified consistent with the EPA's Environmental Justice Strategy and the OSWER Environmental Justice Action Agenda.

Today's rule will revise management requirements for used cathode ray tubes sent for recycling. Facilities that would be affected by today's rule include any facility generating hazardous waste computers and televisions sent for recycling. Also affected would be facilities which recycle these materials. Disposal facilities themselves would not be affected by today's rule.

The wide distribution of affected facilities throughout the United States does not suggest any distributional pattern around communities of concern. Any building in any area could be affected by today's rule. Specific impacts on low income or minority communities, therefore, are undetermined. The Agency believes that emissions during transportation would not be a major contributor to communities of concern through which used CRTs may be transported. Any such material broken during transport would be contained in the required packaging. Overall, no disproportional impacts to minority or low income communities are expected.

List of Subject in 40 CFR Part 261

• Environmental protection
• Hazardous waste
• Recycling
• Reporting and record keeping requirements
• Waste treatment and disposal

Dated: December 19, 2002.

Christine T. Whitman, Administrator,

United States Environmental Protection Agency.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations, parts 261 is amended as follows:

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.

Subpart A—General

2. Section 261.4 is amended by adding and reserving paragraph (a)(23) and adding paragraph (a)(24) to read as follows:

§ 261.4

Exclusions.

(a) * * *

(23) [Reserved]

(24) Used cathode ray tubes (CRTs) (as defined in § 261.40(f)) to be recycled in the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia,

(i) Used, intact CRTs as defined in § 261.40(f) to be recycled in the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia are not solid wastes unless disposed.

(ii) Used, broken CRTs as defined in § 261.40(f) to be recycled in the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia are not solid wastes provided that they meet the requirements of § 261.40 and that the CRTs are not accumulated speculatively as defined in § 261.1(c).

* * * * *

3. Part 261 is amended by adding Subpart E consisting of §§ 261.39 and 261.40, to read as follows:

Subpart E—Exclusions/Exemptions

261.39

[Reserved]

261.40

Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) To Be Recycled in the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia.

Subpart E—Exclusions/Exemptions

§ 261.39

[Reserved]

§ 261.40

Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) To Be Recycled in the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia.

Used, broken CRTs to be recycled within the Region III States are not solid wastes if they meet the following conditions:

(a) Prior to processing: These materials are not solid wastes if they are destined for recycling within a Region III state and if they meet the following requirements:

(1) Storage. The broken CRTs must be:

(i) Placed in a container (i.e., a package or a vehicle) that is constructed, filled, and closed to minimize identifiable releases to the environment of CRT glass (including fine solid materials), and

(ii) Stored in an enclosed building with a roof, floor, and walls

(2) Labeling. Each container in which the used, broken CRT is contained must be labeled or marked clearly with one of the following phrases: “Waste cathode ray tube(s)—contains leaded glass,” or “Used cathode ray tube(s)—contains leaded glass.” It must also be labeled: “Do not mix with other glass materials.”

(3) Transportation. These CRTs must be transported in a container meeting the requirements of paragraphs (a)(1)(i) and (2) of this section.

(4) Speculative accumulation. These CRTs are subject to the limitations on speculative accumulation as defined in § 261.1.

(b) Requirements for used CRT processing. Used, broken CRTs undergoing CRT processing as defined in paragraph (f) of this section are not solid wastes if they meet the following requirements:

(1) Storage. Used, broken CRTs undergoing processing are subject to the requirements of paragraphs (a)(1), (2), and (4) of this section.

(2) Processing. (i) All CRTs must be processed within an enclosed building with a roof, floor, and walls; and (ii) No activities may be performed that use temperatures high enough to volatilize lead from CRTs.

(c) Processed CRT glass sent to CRT glass making or lead smelting. Glass removed from used CRTs that is destined for recycling at a CRT glass manufacturing facility or a lead smelter after processing is not a solid waste unless it is speculatively accumulated as defined in § 261.1.

(d) Processed CRT glass sent to other types of recycling, except for use constituting disposal. Glass removed from used CRTs that is destined for other types of recycling after processing (except use constituting disposal) is not a solid waste if it meets the requirements of paragraphs (a)(1) through (4) of this section.

(e) Use constituting disposal. Processed glass removed from CRT monitors that is used in a manner constituting disposal must comply with the requirements of paragraphs (a)(1) through (4) of this section and the applicable requirements of 40 CFR Part 266, Subpart C.

(f) Definitions. For purposes of this section, the following definitions apply:

Cathode ray tube or CRT means a vacuum tube, composed primarily of glass, which is the video display component of a television or computer monitor. An intact CRT means a CRT remaining within the monitor whose vacuum has not been released. A broken CRT means glass removed from the monitor after the vacuum has been released.

CRT glass manufacturing facility means a facility or part of a facility located within the Region III States that uses a furnace to manufacture CRT glass.

CRT processing means the conducting of all of the following activities at a facility within the EPA Region III's States:

(i) receiving broken or intact CRTs;

(ii) intentionally breaking intact CRTs or further breaking or separating broken CRTs;

(iii) sorting or otherwise managing glass removed from CRT monitors; and

(iv) cleaning coatings off the glass removed from CRTs.

EPA Region III's States means the District of Columbia; the States of Delaware, Maryland, and West Virginia; and the Commonwealths of Pennsylvania and Virginia.