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CP-57 / Use of Enforcement Discretion for Cathode Ray Tube (CRT) Glass

Issuing Authority: Joseph J. Martens, Commissioner
Date Issued: August 7, 2013

I. Summary

This Policy authorizes the exercise of New York State Department of Environmental Conservation's (DEC's) enforcement discretion to allow regulated parties to store used Cathode Ray Tubes (CRTs) and CRT glass removed from CRTs prior to legitimate recycling in compliance with federal regulations, while DEC completes the promulgation of those requirements into State regulations. This discretion provides a protective but streamlined approach to managing these materials and thereby significantly encourages the recycling of this glass. Specifically, regulated parties will be allowed to comply with the requirements of the "CRT Rule" promulgated by the United States Environmental Protection Agency (USEPA) at 40 Codes of Federal Regulation (CFR) 261.39 (71 Federal Register (FR) 42928-42949, July 28, 2006). [http://www.epa.gov/epawaste/hazard/recycling/electron/index.htm#crts]

For the purposes of this Policy, the term "CRT" follows the definition at 40 CFR 260.10 and means a vacuum tube, composed primarily of glass, which is the visual or video display component of an electronic device such as Automatic Teller Machines (ATMs), industrial and medical equipment, televisions and computer monitors containing a CRT, and CRTs that are no longer contained in the original device. Under the CRT Rule, legitimate recycling of CRT glass means recycling at a CRT glass manufacturer or a lead smelter.

This policy affects CRT collectors and processors. For example, under this Policy a recycler may separate a CRT into scrap metal, hazardous waste glass, and non-hazardous waste glass and store these materials separately. As long as each of these types of components is eventually recycled and in the interim is managed in accordance with the conditions specified in the CRT Rule, the material is excluded from regulation as a federal solid waste at 40 CFR 261.4(a)(22) and may be shipped without a hazardous waste manifest. A recycling facility may accept the material without a Treatment, Storage, or Disposal Facility (TSDF) permit issued under Title 6 New York Code of Rules and Regulations (6 NYCRR) 373-1. CRTs and component materials recovered from CRTs continue to be regulated as solid wastes per 6 NYCRR Part 360.

The conditions that must be met include:

  • glass that would otherwise be hazardous waste must be labeled and properly packaged to prevent releases;
  • existing storage requirements and time limits for hazardous waste glass are replaced with a prohibition on speculative accumulation [see section V below];
  • recycled glass used in a manner constituting disposal is managed as a solid waste under the provisions of 6 NYCRR 371.1(c)(4)(i);
  • transporters of 500 pounds or more per shipment of broken CRTs or CRT glass must have a valid permit issued under 6 NYCRR Part 364 for transporting industrial/commercial waste (which must specify where the glass will be shipped and requires applicable liability insurance);
  • compliance with all other applicable federal, state, and local laws and regulations including compliance with ECL Article 27, Title 26, which is the New York State Electronic Equipment Recycling and Reuse Act, and 6 NYCRR Part 360, which addresses requirements for Solid Waste Management Facilities;
  • products or co-products of recycling, and any recycling residuals, must meet state hazardous and solid waste legitimacy and beneficial use standards before they can be used; and
  • notification requirements for when CRTs and CRT glasses are exported.

Unless modified or rescinded sooner, this Policy shall automatically terminate on the effective date of DEC's amendments to its Hazardous Waste Management regulations adopting USEPA regulations in whole or in part as they pertain to the CRT Rule.

II. Policy

This Policy authorizes the exercise of DEC's prosecutorial discretion not to enforce the limitations in New York State's current hazardous waste regulations of 6 NYCRR for the management of CRTs and CRT glass, as defined in 40 CFR Part 260, provided that there is compliance with the requirements of the USEPA CRT Rule (40 CFR 261.39, 71 FR 42928-42949, July 28, 2006) in lieu of being fully regulated under DEC's Hazardous Waste Management regulations. The conditions of this discretion are stated in Sections I, above, and V, below.

III. Purpose and Background

Purpose:

This enforcement discretion allows handlers to store hazardous waste CRT glass prior to recycling as an excluded waste. Although CRT glass that is a hazardous waste is exempt from full regulation as a hazardous waste at 6 NYCRR 373-1.1(d)(1)(viii) during the recycling process, the storage of that waste is currently subject to full regulation. The USEPA CRT Rule adds these wastes to the lists of materials that are excluded from being solid wastes at 40 CFR 261.4(a)(22); however, they are still solid wastes pursuant to 6 NYCRR Part 360. Since CRTs are being replaced by flat screen monitors, this Policy encourages the recycling of this waste stream at the peak of its availability. The peak generation of used CRTs should occur over the next 5 to 10 years, and then steadily decline.

The CRT Rule allows handlers of CRTs to meet reduced requirements when they collect or process CRTs to separate the hazardous waste "funnel glass," which contains lead, from the non-hazardous "panel glass," which is generally low in lead content. This allows the panel glass to be handled as non-hazardous waste. Allowing use of this rule until DEC formally adopts it into regulation will increase the recycling of CRTs in the State and make it more economical for recyclers to handle CRTs.

Background:

New York State is one of the top five generators of waste CRTs in the nation. There are currently over 60 electronic waste recycling facilities registered with DEC's Division of Materials Management (DMM). These are identified on DEC's pubic website at http://www.dec.ny.gov/chemical/73670.html. DEC has received several requests from recyclers to adopt the USEPA CRT rule to increase the recycling of CRT glass. Advantages of recycling include (1) volume reduction; (2) separation of non-hazardous waste glass from hazardous waste glass so that the non-hazardous waste glass can be used for various applications; (3) preparing hazardous waste glass as feedstock for CRT manufacturing or use by lead smelters; and (4) separating lead from hazardous waste glass through various processes.

The average weight of a CRT is about 60-66 pounds, with about two-thirds (2/3) of the weight being panel glass. Panel glass is predominately non-hazardous and there are several commercial uses for panel glass. To be considered non-hazardous under existing DEC regulations, panel glass must be below the regulatory limits of 6 NYCRR Part 371 that define a hazardous waste (using the toxicity characteristic leaching procedure (TCLP) test.) The concentration of lead in panel glass must be below the applicable Land Disposal Restriction (LDR) levels of 6 NYCRR Part 376 if it will be recycled in applications that require placement on the ground, such as in roadbeds and building foundations, or which will be subject to disposal following use, such as in sandblasting media. DEC has also received proposals to separate lead from hazardous waste glass in processes that generate lead ingots and glass with a reduced lead concentration. Funnel glass contains significant quantities of lead and the CRT Rule provides a conditional exclusion for CRT glass directed for remanufacture into new CRTs or use as a fluxing agent by lead smelters. If CRTs or CRT glass that fails the TCLP test is being directed for other uses, or for disposal, it would be fully regulated hazardous waste unless another hazardous waste exclusion was met.

DEC currently exempts CRTs, including whole monitors and televisions, from much of the 6 NYCRR Part 370 series hazardous waste requirements if the metal in the CRT will eventually be recycled. Recyclers can receive CRTs and can break the CRTs to separate metal from glass. Most recycling processes are currently exempted under 373-1.1(d)(1)(viii). However, the storage of the CRT glass without metal during and after the process is fully regulated under 6 NYCRR Parts 370-374 and 376. Recyclers may not store broken CRT funnel glass or mixed CRT glass without obtaining a hazardous waste TSDF permit. Broken CRT glass must be transported by a hazardous waste transporter and be accompanied by a hazardous waste manifest.

The Federal CRT rule provides a conditional exclusion from the Hazardous Waste Management regulations for CRT glass directed for recycling at a CRT glass manufacturer or a lead smelter. The conditions of the exclusion in the CRT rule include: (1) storage, labeling, and processing requirements; (2) a ban on speculative accumulation; and (3) export notification requirements. Until use of the CRT rule is allowed through this Policy or through regulation change, storage of broken CRT glass that meets the definition of a hazardous waste is subject to regulation as hazardous waste in New York State.

Regulations of the federal Occupational Safety and Health Act (OSHA) that apply to workers who could be exposed to the lead in the CRT indirectly provide environmental protections during the glass-breaking processes. As applicable, OSHA requirements include maintaining negative pressure to prevent small pieces of glass from exiting the area; personal protective equipment for workers; and air monitoring. This enforcement discretion policy does not waive any of the OSHA requirements.

This policy also does not waive applicable 6 NYCRR Parts 360 and 364 requirements for waste handling and transportation. Parties that transport greater than 500 pounds of CRT glass must also have a Part 364 Waste Transporter Permit for transporting industrial/commercial waste. All other applicable federal, state, and local laws and regulations continue to apply, including compliance with ECL Article 27, Title 26 [Electronic Equipment Recycling and Reuse Act].

The Electronic Equipment Recycling and Reuse Act (ECL Article 27, Title 26) requires manufacturers to fund programs to accept used electronics for free from households, small businesses, and small non-profits. New York State's law is one of the most comprehensive in the nation and includes a phased-in disposal ban that currently encompasses all non-household entities and will ban disposal of electronic waste from households starting in 2015. This combination of free and convenient recycling and the disposal ban will greatly increase the recycling of electronics by households. For many years, the Hazardous Waste Management regulations have banned the disposal of untreated industrial/commercial/ institutional hazardous waste in the State by all but conditionally exempt small quantity generators (CESQGs). Note that many small businesses and small not-for profit organizations are in this category. CESQGs were previously allowed to direct untreated hazardous waste to a solid waste disposal facility. The rate of CRT generation is expected to peak in the next two to three years due to these factors. This Commissioner Policy will allow for easier recycling of CRTs.

The export provisions of the Federal CRT Rule are already in effect nationally. Export of CRTs and CRT glass is currently regulated by USEPA and this will continue regardless of any DEC actions.

IV. Responsibility

The responsibility for interpreting and updating this policy resides in the DEC's Division of Environmental Remediation, Bureau of Technical Support, in consultation with DEC's Office of General Counsel.

V. Procedure

Applicable Federal Regulations: As an alternative to coverage by State regulatory language provisions 6 NYCRR Parts 370-374 and 376 pertaining to the regulation of CRTs and CRT glass, when a regulated entity is in full compliance with the provisions listed below, DEC will allow the regulated community to comply with the applicable federal regulations for the management of CRTs and CRT glass promulgated at 40 CFR Parts 260 and 261 and cited in the table below. When a regulated entity is in full compliance with these portions of 40 CFR Parts 260 and 261, DEC will exercise its enforcement discretion and treat such compliance as meeting all of the existing standards for used CRTs and CRT glass in 6 NYCRR Parts 370-374 and 376. If the regulated entity fails to comply with any conditional requirements of the CRT Rule, DEC reserves the right to enforce its existing laws and regulations.

40 CFR References and Content of Interest
40 CFR Reference Content of Interest
260.10 Definitions for:
"Cathode Ray Tube or CRT"
"CRT collector"
"CRT glass manufacturer"
"CRT processing"
261.4 Conditional Exclusion for Used CRTs
261.39 Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) and Processed CRT Glass Undergoing Recycling
261.40 Conditional Exclusion for Used, Intact Cathode Ray Tubes (CRTs) Exported for Recycling
261.41 Notification and Recordkeeping for Used, Intact Cathode Ray Tubes (CRTs) Exported for Reuse

Policy Coverage: This Commissioner Policy will be effective for all used CRTs and CRT glass managed within the borders of New York, for as long as these materials remain within these borders. This Policy in no way affects the hazardous waste management standards of other states which may regulate used CRTs and CRT glass waste under other standards.

Policy Termination: Unless modified or rescinded sooner, this Commissioner Policy shall automatically terminate on the effective date of DEC amendments to its Hazardous Waste Management regulations adopting USEPA regulations in whole or in part as they pertain to the CRT Rule.

Compliance: When a regulated entity is in full compliance with the applicable requirements of 40 CFR Parts 260 and 261, DEC will exercise its enforcement discretion and treat such compliance as meeting all of the existing standards for used CRTs and CRT glass in 6 NYCRR Parts 370-374 and 376. If the regulated entity fails to comply with any conditional requirements of the CRT Rule, DEC reserves the right to enforce its existing law and regulations. Handlers not in compliance with the requirements of the CRT Rule are fully subject to the existing Hazardous Waste Management regulations found in 6 NYCRR Parts 370-374 and 376. The existing hazardous waste requirements include the possible need for a TSDF permit, certain storage time limits, contingency plans, employee training, more stringent storage requirements, and hazardous waste manifesting. This Commissioner Policy excludes CRT glass from regulation as a solid/hazardous waste only if the glass will ultimately go for legitimate recycling as described in 40 CFR 261.39(c).

Regulations in Effect: 6 NYCRR Part 364 Waste Transporter Permit requirements, 6 NYCRR Part 360 Solid Waste Management Facility requirements, and ECL Article 27, Title 26 [Electronic Equipment Recycling and Reuse Act] are still in effect under this Policy. These provisions include registration and reporting, storage standards, a means to control entry, accumulation time limits, recordkeeping, employee training, and compliance with the disposal ban.

Non-waived Requirements: All other applicable federal, state, and local laws and regulations continue to apply, including ECL Article 27, Title 26, the New York State Electronic Equipment Recycling and Reuse Act; and 6 NYCRR Part 360, which addresses requirements for Solid Waste Management Facilities. Components of CRTs, when removed from the CRT, may separately qualify for regulation as hazardous waste. Applicable hazardous waste requirements are not waived by this policy.

Speculative Accumulation: As defined in 6 NYCRR 371.1(a)(1) and the corresponding federal regulation 40 CFR 261.2(b)(8), a person accumulating material for recycling must be able to show on request that they are recycling sufficient volumes (75% or greater) of the material on an annual basis. The handler needs to demonstrate that there is a feasible means for recycling the material and upon request must identify actual recyclers and recycling technologies. The CRT Rule specifically prohibits speculative accumulation of broken CRT glass. Any person may petition the Commissioner under 6 NYCRR 370.3(a), (d) and (e) to be granted a variance from classification as a solid waste for materials accumulated speculatively. Among the conditions, variance applications must include measures that will be taken to protect human health and the environment, a demonstration of the need for additional storage time, and that sufficient amounts of the material in question will be recycled or transferred for recycling within the next year. Applicants may renew annually by filing a new application. Variances may be granted on a case-by-case basis. Public notice must be made of DEC's tentative decision of whether to grant or deny each application, and a public comment period of a minimum of 30 days is required before DEC can grant any variance application.

Legitimacy Criteria: To distinguish between legitimate recycling and sham recycling, USEPA has adopted four legitimacy factors. A material that is directed for legitimate recycling: (1) provides a useful contribution to the recycling process; (2) is a valuable product or intermediate; (3) is managed as a valuable commodity; and (4) toxics in the recycled product are not significantly different than normal feedstock. DEC considers all four factors in evaluating legitimacy.

Beneficial Use Determinations (BUDs): BUDs are required under 6 NYCRR 360-1.15 for the various glass materials that result from CRT glass processing for which beneficial use is proposed. The processed CRT glass must first be excluded as a hazardous waste and must not be used in a manner constituting disposal pursuant to 6 NYCRR 371, except as described in the next paragraph.

Use Constituting Disposal: Materials physically separated from CRTs that do not fail the TCLP must meet the land disposal restrictions of 6 NYCRR Part 376 (40 CFR Part 268) if applied or placed on the land or contained in products that are applied to the land. For example, processed glass which has TCLP levels of lead above 0.75 ppm (i.e., above the LDR levels) cannot be used in a manner constituting disposal, as described in 6 NYCRR 371.1(c)(4)(i) and 40 CFR 261.2(c)(1). Road construction, sandblasting and similar uses are typically considered to be use constituting disposal; material used in these manners cannot exit regulation as a solid waste unless the LDR levels are met.

VI. Related References

  • 6 NYCRR Parts 370-374 and 376, Hazardous Waste Management Regulations. September 6, 2006.
  • 6 NYCRR Part 364, Waste Transporter Permit Regulations. May 12, 2006.
  • 6 NYCRR Part 360, Solid Waste Management Facility Regulations. May 12, 2006.
  • Environmental Conservation Law, Article 27, Title 26. New York State Electronic Equipment Recycling and Reuse Act. May 2010.
  • 40 CFR Parts 260, 261 and 271, as amended in 71 FR 42928-42949. July 28, 2006.