1 RESPONSE TO COMMENT DOCUMENT: RCRA 2004 0010.

A. Used, Intact CRTs Sent for Recycling Used, intact CRTs are CRTs remaining within the monitor whose vacuum has not been released. In its June 12, 2002 notice, the Agency proposed to exclude these materials from the definition of solid waste unless they were disposed. These materials, when sent for recycling, would not have been subject to regulation under RCRA Subtitle C, including the speculative accumulation limits of 40 CFR § 261.1( c)( 8) ( see also 40 CFR § 261.2( c)( 4)). Under the proposal, used, intact CRTs could therefore have been held for long periods of time without being considered abandoned and thereby becoming solid wastes.

EPA determined that intact CRTs are highly unlikely to release lead to the environment because the lead is contained in the plastic housing and the glass matrix ( see 67 FR 40513). Because of this low likelihood of release, EPA proposed reduced requirements for used, intact CRTs by excluding them from the definition of solid waste. Unused CRTs are already considered commercial chemical products which are excluded from the definition of solid waste when recycled, even if they are reclaimed or speculatively accumulated ( see 50 FR 14219, April 11, 1985). Used and unused intact CRTs are identical in appearance. In the proposal, the Agency stated that it would be difficult to distinguish between used and unused intact CRTs destined for recycling, and there appeared to be no environmental basis for such a distinction.

The Agency continues to believe that lead contained in used, intact CRTs is generally unlikely to be released to the environment. However, views expressed by commenters have led the Agency to change the proposed speculative accumulation requirements for these materials. Today s rule provides that used, intact CRTs are subject to the speculative accumulation requirements of 40 CFR 261.1( c)( 8) if they are accumulated by glass processors or collectors ( see 40 CFR 261.4( a)( 23)( i) in the final rule). Today s rule also modifies requirements applicable to used, intact CRTs that are exported. The export requirements are discussed in a separate section below. Following are the significant comments received, and our responses.

Response to Comments Commenters were divided about imposing speculative accumulation requirements on used, intact CRTs. Some commenters supported our proposal to impose no accumulation limits on intact CRTs. These commenters claimed that intact CRTs being recycled were more commodity like than waste like, and that there is virtually no possibility of environmental releases from intact CRTs.

Other commenters, particularly States, wanted to subject used, intact CRTs to the speculative accumulation provisions because they were concerned about the possibility of abandonment. Some of these commenters believed that intact CRTs sent for recycling resembled spent materials rather than commercial chemical products being reclaimed, and 2 therefore should not be excluded at all from the definition of solid waste. One commenter, however, stated that speculative accumulation might be better addressed under state solid waste authorities than under federal law. Another commenter suggested clarifying that 40 CFR § 261.2( f) applies to used, intact CRTs sent for recycling. This provision requires respondents in enforcement actions to demonstrate that the material in question is not a solid waste, or is exempt from regulation. This commenter believed such a clarification was preferable to imposing speculative accumulation requirements on used, intact CRTs.

One commenter suggested two alternative approaches to speculative accumulation for used, intact CRTs. One approach would involve a speculative accumulation period of up to three years ( presumably because intact CRTs become increasingly nonfunctional with time, and because storage costs also increase with time). The alternative approach would involve a quantity limit ( 10,000 20,000 kg) beyond which stored materials would be subject to speculative accumulation requirements unless the facility in question provided a closure plan with financial assurance and could document a specified turnover every six months.

The Agency does not agree that three years is generally necessary to find reuse or recycling markets for intact CRTs. If more time is needed than specified in 40 CFR § 261.1( c)( 8), the facility may apply for an additional time period under the variance procedures in 40 CFR § 260.30( a)( see the discussion of this variance in the following section.) In response to the suggested quantity limit and closure plan, the Agency notes that such a plan, although interesting, is technically outside the scope of this rulemaking and would require an additional proposal. Moreover, the commenter did not provide compelling reasons for establishing the particular requirements, while the Agency s current speculative accumulation requirements have a long history under the regulations and are commonly understood by affected stakeholders. We are therefore not addressing the merits of the suggestion at this time.

The Agency agrees with those commenters who expressed concern about potential abandonment of used, intact CRTs, particularly by glass processors and by persons who collect CRTs for recycling. Although broken CRTs and processed CRT glass are likely to pose a greater immediate risk of environmental releases, we believe that this possibility also exists for intact CRTs that are stored for long periods of time, particularly if a collector of such materials abandons them instead of sending them for recycling. Such indefinite storage, in the Agency s view, indicates that the materials are waste like rather than commodity like in nature.

EPA has also reconsidered its earlier statement that it is very difficult to distinguish between unused and used intact CRTs. The two types of materials are not normally stored together. Unused intact CRTs are generally returned to the manufacturer by consumers or retailers, after which they are sent directly to recyclers. Prolonged storage of unused intact CRTs by consumers, retailers, or manufacturers is unlikely.

Nor do we agree with the commenter who stated that speculative accumulation is better addressed by state solid waste authorities, rather than federal law. Some state definitions of solid waste are based on the federal definition, and these States would find it more difficult to use their authorities to require removal of abandoned CRTs. We also note that 40 CFR 3 § 261.2( f) is not an adequate substitute for speculative accumulation requirements because it applies only if enforcement actions are taken. This provision is not a measure that would prevent excessive accumulation of used, intact CRTs.

For the reasons stated above, today s rule imposes the speculative accumulation requirements of 40 CFR § 261.1( c)( 8) on collectors of CRTs and glass processors ( see 40 CFR § 261.( a)( 23( i)). Speculative accumulation requirements also apply to used CRTs that are exported for recycling ( see 40 CFR § § 261.4( a)( 23( ii) and 261.40)).

However, we are not imposing speculative accumulation requirements on persons who use computers or televisions and then send the intact CRTs to collectors and glass processors. Such persons are generally not likely to accumulate CRTs in circumstances that will lead to environmental releases, nor is there an economic incentive for them to store intact CRTs indefinitely. Because of the new speculative accumulation requirement, we have also added a definition of   CRT collector  to 40 CFR § 260.10 (  a person who receives used, intact CRTs for recycling, repair, resale, or donation ).

In addition, we do not agree that intact CRTs sent for recycling should be classified as spent materials and regulated under full Subtitle C requirements, including use of the hazardous waste manifest. For the reasons stated in today s rulemaking record, we believe they resemble commodities more than wastes as long as they are recycled promptly in accordance with today s exclusion which is conditioned upon meeting the speculative accumulation requirements of 40 CFR § 261.1( c)( 8)).

One commenter suggested that unused CRTs should also be subject to speculative accumulation requirements. EPA did not propose this approach, and it is therefore outside the scope of this rulemaking. As a practical matter, we also believe that unused CRTs are more likely to be accumulated by manufacturers of these materials, who are less likely to abandon them. We also note that once unused CRTs are broken, they are subject to all of the requirements of 40 CFR § 261.39( a).

One commenter said that our proposed exclusion for used, intact CRTs implied that if such CRTs were destined for recycling, they could enjoy the proposed exclusion without having to comply with the requirements of proposed 40 CFR § 261.39, even if they were subsequently broken. This conclusion is incorrect because the proposed ( and final) definition of   intact CRT  refers to a CRT whose vacuum has not been released. After the vacuum has been released, the CRT becomes a broken CRT and must be managed in accordance with the requirements of 40 CFR § 261.39( a) and ( b). The same commenter noted that our proposed exclusions were repeated in regulatory language for each stage of management ( i. e., storage prior to processing, transportation, processing, and recycling of processed glass). The commenter stated that this language implied that complying with any one of the stages conferred immunity from compliance with any of the succeeding stages in the sequence. According to the commenter s logic, if a material is excluded from the definition of solid waste, it is forever not a waste and the Agency is precluded from regulating it at a later stage. However, most materials excluded from the definition of solid wastes may become wastes at a later time if they do not comply with the speculative accumulation requirements of 40 CFR § 261.1( c)( 8), or if they are burned or incinerated. 4 The Agency therefore does not agree with this commenter s reasoning, nor do we believe that most readers would interpret the regulations in that way.

One commenter asked us to clarify that used intact CRTs sent to a reseller for potential reuse do not have to be accompanied by a hazardous waste manifest. The commenter is correct, since the original users of such CRTs are not considered to be generators of solid or hazardous waste.

B. Used, Broken CRTs Sent for Recycling Labeling and Storage Some users and collectors of CRTs separate the CRT from its housing and release the vacuum. They then send the monitor with its 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 are first broken by the processor or other recycler. CRTs whose glass has been broken by releasing the vacuum are nonreusable and non repairable and therefore could potentially be solid wastes at the time such breakage occurs.

In the proposal, EPA proposed to add a new section ( 40 CFR § 261.39( a)) which provided that used, broken CRTs sent for recycling would not be solid wastes if they were stored in a building with a roof, floor, and walls, or if they were stored in a container ( i. e., a package or a vehicle) which was constructed, filled, and closed to minimize identifiable releases of CRT glass ( including fine solid materials) to the environment. The containers were to 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.  The containers must also be labeled   do not mix with other glass materials.  When transported, the broken CRTs would have had to be in a container meeting the conditions described above. Used, broken CRTs destined for recycling could not be speculatively accumulated as defined in 40 CFR § 261.1( c)( 8).

The Agency stated 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 valuable commodities destined for legitimate recycling. In addition, the proposed packaging requirements would 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 was considered appropriate if the broken CRTs were handled under the conditions proposed.

The Agency has decided to promulgate the regulations applicable to storage and labeling of used, broken CRTs substantially as proposed. EPA has determined that used, broken CRTs are not solid wastes if they are sent for recycling within the United States under the conditions specified in 40 CFR § 261.39( a)( 1)( 4). However, the Agency has made certain modifications to the proposed conditions in response to comments received. These changes 5 are described below. Today s rule also modifies the proposed requirements applicable to used, broken CRTs that are exported. The export requirements are discussed in a separate section below, along with requirements for imports.

Response to Comments Several commenters suggested changes to our proposed labeling requirements for used, broken CRTs being transported or stored. Some commenters wanted requirements which they believed were more accurate or specific than the ones we proposed. For example, under our proposal, processed glass going to certain types of recycling would have to be packaged and labeled identically to used, broken CRTs ( see proposed 40 CFR § 261.39( d), 47 FR 40525)). One commenter pointed out that processed glass can no longer be considered a   cathode ray tube.  This commenter therefore suggested that applicable labeling requirements for processed glass be changed to   processed cathode ray tube glass  or   glass removed from cathode ray tubes.  Similarly, another commenter stated that used broken CRTs may be in such small pieces that the materials might not be recognizable as   cathode ray tubes.  This commenter suggested that a useful alternative requirement ( which could be used in addition to our proposed language) would be to label containers of broken CRTs with the phrase   leaded glass  and some indication of the source of the glass   e. g.,   leaded glass from televisions.  Another commenter pointed out that one of our proposed alternative labeling phrases (  waste cathode ray tubes   contains leaded glass ) was not necessary, since the cathode ray tubes would not be wastes if they were packaged and labeled in accordance with the regulations.

The Agency agrees that these suggestions are more clear than our proposed regulations, and has modified the final rule accordingly. Section 261.39( a)( 2) of today s rule specifies that each container in which a used, broken CRT is contained must be labeled or marked clearly with one of the following phrases:   used cathode ray tubes   contains leaded glass  or   leaded glass from televisions or computers.

One commenter urged complete flexibility in labeling requirements. Another suggested that the Agency not specify the exact wording of labels in the regulations, but instead should require that contents be   marked with words that identify the contents of the containers.  This latter commenter believed that labelers would then have more discretion and would not be subject to enforcement actions for failing to use the precise words specified in the regulations.

The Agency does not agree with these comments. Requiring no specified words or phrases for labeling in the regulations does not provide sufficient notice to either regulators or the regulated community, and could, if anything, lead to more enforcement actions than a precisely worded requirement.

One commenter said that EPA should also require CRT devices to be labeled ( presumably the commenter was referring to CRT devices still in use) because the public is unaware that these devices may be hazardous when disposed. Besides being beyond the scope of this rulemaking, the Agency does not agree that labeling products is necessary 6 merely because they may be hazardous when disposed. Such labeling could result in a misleading impression that the products are harmful during normal use.

Another commenter suggested requiring closed containment, avoidance of air entrainment of contaminants, and protection from exposure to precipitation or corrosive/ leaching chemicals. Today s rule requires used, broken CRTs ( if not stored in a building) to be placed in a container that is constructed, filled, and closed to minimize releases to the environment of CRT glass ( including fine solid materials.) EPA believes that this regulatory language is more appropriate for these materials than the commenter s suggested language. Reference to unspecified   contaminants  and   chemicals ) is not sufficiently precise to give notice to the regulated community.

Other commenters believed that several of our proposed requirements were unnecessary. For example, some commenters objected to EPA s proposed requirement that broken CRTs be stored either in a container or a building. One commenter believed that these materials should not be classified as solid wastes if they were stored on a concrete pad or the equivalent, since this practice should be adequate for a coarse solid material which is insoluble in water. Other commenters suggested replacing our proposed requirements with a requirement that storage of CRT glass must take place in   environmentally contained areas ( water and particle containment)  or must be   stored in a manner that meets other environmental regulations that control or limit release to the environment.

EPA disagrees with these comments. In the first place, storing broken CRTs outdoors prior to processing is inconsistent with the premise that these materials are commodity like, because they can easily be damaged if exposed to excessive wind or moisture unless they are packaged. Language requiring storage in   environmentally contained areas  is too vague to provide guidance to the regulated community on the measures required to ensure appropriate handling of commodity like materials. Similarly, a requirement that materials be   stored in a manner that meets other environmental regulations  would be redundant, since they are required to comply with all applicable environmental regulations in any event. Therefore, the final rule does not contain these suggested requirements.

One commenter pointed out that containers holding used, broken CRTs may also hold other portions of electronic equipment such as the plastic housing that contains the CRT. This commenter requested that the Agency clarify that these other associated materials need not be segregated from CRTs during storage. We agree with this commenter that such segregation was not our intent and the rule does not require such segregation.

Speculative Accumulation In our June 12, 2002 notice, we proposed to require that used, broken CRTs and processed CRT glass be subject to the speculative accumulation provisions of 40 CFR § 261.1( c)( 8). These provisions generally specify that materials are speculatively accumulated, unless 75 percent of the materials ( calculated by weight or by volume) are recycled within a calendar year. We inquired whether a longer accumulation period ( such as two or more years) should be provided for CRTs to allow recycling markets to grow, especially since there appeared to be few environmental concerns with storage if these 7 materials are properly packaged and labeled. After evaluating comments received on this issue, we have decided to finalize the speculative accumulation requirements as proposed for used, broken CRTs and processed CRT glass. The comments received, and our responses, are described below.

Response to Comments Some commenters ( principally states) supported the current speculative accumulation provisions for broken CRTs ( or, in some cases, the one year accumulation period of the universal waste rule). These commenters were concerned about the possible environmental effects of a longer accumulation time, and generally believed that the one year time frame allowed in 40 CFR § 261.1( c)( 8) was enough to accumulate sufficient quantities for recovery and find outlets for recycling.

Other commenters ( generally representing industry) supported extending speculative accumulation requirements for broken CRTs. Some supported extensions of two or more years for used, broken CRTs, and a few wanted no limits at all. These commenters argued that longer time limits would allow persons handling used CRTs to accumulate the materials in larger numbers, which would make shipping less expensive. They also believed that extended speculative accumulation times would allow markets to develop more fully, thus encouraging recycling. A few commenters supported longer speculative accumulation times for used, intact CRTs as well, and two commenters wanted a longer accumulation time ( e. g., two or three years) only for used, intact CRTs. One commenter suggested requiring that only 10% of intact CRTs be recycled or transferred for recycling within a calendar year.

EPA agrees with those commenters who stated that markets are likely to increase for CRT glass. Although some commenters were concerned about lack of markets, these commenters did not submit quantitative data that would be sufficient, in the Agency s view, to justify treating these materials differently from other materials that are excluded from the definition of solid waste on condition that they not be speculatively accumulated. We note that markets for all of these materials frequently fluctuate. Similarly, there appear to be no data indicating that extended accumulation times are generally necessary to lower shipping costs for CRTs. For these reasons, we believe that used broken CRTs and processed CRT glass ( as well as used intact CRTs, as discussed in section A above) should be subject to the usual requirements that they not be speculatively accumulated. In addition, we do not think that different accumulation times for broken and intact CRTs would be practical. Although broken CRTs present a somewhat greater risk of releases, the difference in risk seems outweighed by the difficulties in program implementation that would be incurred by a longer accumulation period only for used, intact CRTs. Different accumulation times for the two materials could also make recycling more complicated if facilities collecting CRTs had to keep separate track of storage times.

One commenter suggested extending the speculative accumulation period for processed glass, stating that processed glass must sometimes be stored at glass manufacturing facilities for long periods of time due to the lack of current need for glass with the particular lead content found in the stored glass. Similarly, according to this commenter, CRT glass 8 processors must sometimes accumulate processed glass in order to meet the needs of CRT glass manufacturers during periods of peak usage. This commenter also stated that processed glass meets many of the criteria for a variance from the definition of solid waste under 40 CFR § 260.31( a) ( which allows extended accumulation periods to individual facilities). The commenter suggested that EPA extend the speculative accumulation time for processed glass on an industry wide basis. However, another commenter supported the use of such variances to extend accumulation times on a case by case basis as necessary for persons developing new glass technologies. We agree with this commenter. Such variances are available on a case by case basis if the applicant can demonstrate that sufficient amounts of the material in question can be recycled or transferred for recycling within the following year. The variances can be renewed annually by filing a new application. We note that these variances are available not only to glass processors and to persons developing new glass technologies, but also to any person storing used CRTs who needs additional storage time. Because they are site specific and allow individual circumstances to be taken into account, the variances are more appropriate than an extension covering many different kinds of facilities in differing situations.

Another commenter suggested basing storage time and quantity limits ( for both broken CRTs and processed CRT glass) on a percentage of annual sales volume to glass manufacturers. This commenter also said that storage limitations should only apply to materials of   environmental concern  and not to panel glass. In response, the Agency notes that basing storage requirements on a percentage of sales volume is outside the scope of this rulemaking. However, we agree that such requirements only apply to materials which are hazardous wastes, which would generally not include panel glass from CRTs.

One commenter stated that since most facilities will rarely encounter broken CRTs, it would be burdensome to try to distinguish them from intact CRTs; therefore, they should be subject to the same speculative accumulation requirements. EPA does not agree with this commenter. If CRTs are to be recycled, they must be broken at some point in order to be disassembled. Nor is it difficult to determine visually whether the vacuum tube on a CRT has been released. In any event, we note that the importance of distinguishing between broken and intact CRTs is not important for purposes of speculative accumulation, since under today s rule both are subject to the requirements of 40 CFR § 261.( c)( 8).

Another commenter stated that the purpose of the original speculative accumulation provisions was to alleviate concerns about sham recycling and to provide a way to determine storage periods and turnover rates for materials that did not have well defined markets. Since there are current markets for CRT glass, this commenter reasoned that the speculative accumulation provisions should not apply to these materials. We disagree with this commenter. The speculative accumulation provisions have never been limited to materials with particular types of markets. In any event, markets for most commodities usually change over time. Another commenter said that there are few environmental or human health risks associated with the storage of broken CRTs when properly contained and labeled. Therefore, no speculative accumulation requirements for CRTs are needed. In response, we note that indefinite storage increases the likelihood of environmental releases, and that such storage is inconsistent with commodity like status. 9 Another commenter believed that recordkeeping requirements incumbent upon a processor to demonstrate that speculative accumulation limits have not been violated would hinder the growth of the CRT recycling industry. In response, we note that the speculative accumulation requirements of 40 CFR § 261.1( c)( 8) do not contain specific recordkeeping requirements, and that labeling and storage procedures that are part of most ordinary business practices will generally be sufficient to make any demonstration that may be requested.

One commenter stated that the speculative accumulation period for CRTs ( and possibly other materials as well) should be expanded because the Agency can address threats to human health and the environment through RCRA imminent hazard authority as well as authorities granted under other statutes. In response, EPA points out that these authorities do not render more proactive measures, such as enforcement of the speculative accumulation provisions, unnecessary or less effective to protect human health and the environment. Such proactive measures may in fact conserve substantial resources that would otherwise be needed to address environmental risks after they have reached the stage of imminent endangerment.

A few commenters suggested a period shorter than one year for accumulation of used CRTs. Two commenters said that 180 days should be sufficient to allow CRTs to be recycled, and that longer periods could encourage sham operations. These commenters who suggested shorter accumulation times, such as 180 days, did not submit data indicating that CRTs could be effectively recycled in such a short time period. Therefore, we are not adopting these suggestions.

EPA notes that a few commenters may have been confused about the relationship between the current speculative accumulation provisions and the classification of CRTs as solid wastes. The speculative accumulation provisions apply to materials that are not solid wastes at the beginning of the accumulation period; if they are not recycled in sufficient quantities within the specified period, they become solid wastes ( and, if they are hazardous waste, subject to all applicable Subtitle C requirements). If used CRTs were classified as spent materials as soon as they were taken out of service, they would instead be subject to the shorter accumulation times (( 90 or 180 270 days) allowed for generators of hazardous wastes pursuant to 40 CFR 262.34, rather than the one year period allowed under 40 CFR 261.1( c)( 8).

Use Constituting Disposal In our June 12, 2002 notice, we proposed a condition prohibiting land placement of processed CRT glass, unless it met the use constituting disposal requirements of Part 266, Subpart C. We solicited comment on whether to impose the same prohibition on broken CRTs as well. We asked for information about the current uses for broken CRTs or processed CRT glass that involved use constituting disposal. We received very little data on this issue, although a few commenters mentioned the use of processed glass in road building materials. Because we have no information about this practice that would justify distinguishing it from use constituting disposal of processed CRT glass, today s rule imposes the same prohibition on both kinds of materials ( see 40 CFR § § 261.39( a)( 4) and 10 ( d)). One commenter suggested that our proposed prohibition was unnecessary, since processed glass that was a solid and hazardous waste would be subject to the provisions of 40 CFR Part 266, Subpart C in any event. The Agency believes that placing the requirements in today s rule provides more guidance to the regulated community.

We also note that for materials to be used in a manner constituting disposal, such recycling must be legitimate rather than a form of treatment. For guidance in determining such legitimacy, see the Memorandum entitled   F006 Recycling  from Sylvia K. Lowrance to Hazardous Waste Division Directors, April 26, 1989.

Other One commenter stated the belief that the University of Florida study cited by the Agency in the proposal which reported the average concentration of lead in leachate from color CRTs was not representative. According to this commenter, coarse, broken CRT glass with a very low specific surface area is unlikely to release enough lead to make it a characteristic hazardous waste under any circumstances. In response, we note that generators may always test their wastes on their own to determine if the wastes are hazardous. Other generators may choose to apply knowledge of the waste in light of the materials or the processes used ( see 40 CFR § 262.11( c)).

C. Used CRT Processing Requirements for CRT Processors The Agency also proposed an exclusion from the definition of solid waste for used CRTs undergoing glass processing, if certain conditions were met ( see proposed 40 CFR § 261.39( b)). CRT glass processing was defined in proposed 40 CFR § 260.10 as the receiving of intact or broken used CRTs, intentionally breaking them, sorting or otherwise managing glass removed from CRT monitors, and cleaning coatings from the glass. CRT users and collectors sometimes break CRTs before sending them to a processor. Therefore, under the proposal, breaking used CRTs would not by itself subject a facility to the CRT glass processing conditions. In order to be classified as a CRT glass processor, the facility would have to perform all of the enumerated activities.

Under the proposal, used, broken CRTs undergoing glass processing would not have been solid wastes if they were stored in a building with a roof, floor, and walls. If they were not stored inside a building, they would have to be packaged and labeled under conditions identical to those proposed for used, broken CRTs prior to processing, including the prohibition on speculative accumulation. All glass processing activities would have to be conducted in a building with a roof, floor, and walls. In addition, no activities could be performed during glass processing that used temperatures high enough to volatilize lead from CRTs.

The CSI Council had recommended that glass processors install and maintain systems sufficient to minimize releases of glass and glass particulates via wind dispersal, runoff, and direct releases to soil. We solicited comment in the proposal on whether to require 11 additional performance standards for glass processors. However, we did not propose the general performance standard recommended by the CSI Council, citing the Council s statement that storing broken CRTs and CRT glass in buildings or closed containers ( as we proposed) were examples of ways to control wind dispersal, runoff, and direct releases to soil.

We also did not propose the CSI Council recommendation that glass processors implement a procedure for advising local communities of the nature of their activities, including the potential for resident and worker exposure to lead or chemical coatings. We stated our belief that matters of local notice and public participation are generally best decided at the state, county, or municipal level. However, we solicited comment on whether to require such procedures under federal regulations in the case of CRT recycling, and the reasons why these procedures would be needed.

EPA stated, at the time of proposal, that the conditions proposed for used, broken CRTs being processed indicate that the materials in question are more commodity like than wastelike Used, broken CRTs that are not managed in accordance with these requirements would not be valuable, product like materials. The opportunity for loss or releases of the materials would indicate that they are wastes. As specifically recommended by the CSI Council, we also proposed that processors 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 could be a sign of waste management rather than production.

EPA has determined that used, broken CRTs being processed under these conditions resemble commodities more than wastes. For this reason, we are finalizing these conditions substantially as proposed. However, we have revised some of our proposed language in response to comments received. Significant comments, our responses, and the changes are discussed below.

Response to Comments Several commenters believed that our proposed temperature requirement was unnecessary. They noted that workers  exposure to lead was already covered by OSHA requirements at 29 CFR Part 1910, and that a high temperature ( or thermal processing) does not by itself indicate waste management. Several commenters stated that lead volatilization and other lead releases would also be covered by applicable provisions of the Clean Air Act and the Clean Water Act. Other commenters supported the proposed temperature requirements, in part because they believed that using high temperatures is in fact a sign of waste management. Some commenters asked EPA to specify a particular temperature, beyond which processing would be prohibited.

EPA agrees with those commenters who believed that CRT processing conducted with high temperatures may indicate waste management, because high temperatures are more likely to release lead and other contaminants into the environment, thereby leading to possible loss of materials. Such waste management could occur even if OSHA requirements apply. We are therefore retaining our prohibition on using temperatures high 12 enough to volatilize lead, as proposed. However, we are not adding a specific temperature to the prohibition because the relevant scientific literature reveals differing temperatures for volatilization of lead, possibly depending on various conditions ( see, e. g., Volatilization Studies of a Lanthanide Lead Borosilicate Glass, WSRC MS 98 00240, R. F. Schumacher, D. S.

McIntyre, D. K. Peeler, J. M. Parteizs; and Effect of Heating on the Sintering Behavior and the Piezoelectric Properties of Lead Zirconate Titnate Ceramics, Jungho Ryu, Jong Jin Choi, and Hyoun EeKim, Journal of the American Ceramic Society, Vol. 84, No. 4, pp. 902 904, April 2001. We therefore believe that this requirement is more appropriately expressed as a performance standard than as a numeric value.

Some commenters mistakenly thought that the proposed temperature requirement would apply to Aend users@ of recycled CRT glass, such as glass furnaces or smelters. One commenter asked EPA to impose a performance standard on both CRT processors and glass manufacturers ( and presumably smelters as well) that would ensure that no temperatures would be employed that released toxic metals into the work environment or the surrounding air. Another commenter suggested requiring that CRT processors be required to monitor for fugitive emissions of lead, silica, and mercury. In response, the Agency notes that requirements for glass manufacturers and smelters were not proposed and are completely outside the scope of this rulemaking. With respect to CRT processors performing extensive monitoring, we do not believe that the benefits of such monitoring ( which the commenters did not elaborate) would outweigh the costs. In any event, silica is not a hazardous waste, and EPA has no data indicating that CRTs contain mercury, or that any heat employed in CRT processing causes the release of toxic metals other than lead. We also believe that our temperature prohibition ( and applicable OSHA requirements) are a more direct and effective way to protect workers than a general requirement to monitor lead emissions.

One commenter stated that EPA s proposed requirement that CRTs undergoing processing be stored ( unless packaged) in a building   with a roof, floor, and walls  could lead to placing CRTs in locations with inadequate containment. This commenter suggested replacing the Agency s proposed requirement with a provision calling for   storage   within a permanently constructed building consisting of at least a roof and three walls permanently affixed to an impermeable floor placed on the ground.  Another commenter also suggested requiring standards for the doors and walls of storage buildings to prevent releases ( without specifying what the standards should be).

We remain unconvinced that such requirements are necessary for buildings where CRTs are processed. For example, it is not clear that CRT processing would pose environmental risks ( or that CRTs would be handled as wastes instead of as commodities) if such processing took place in a temporary building, since no liquids are involved in the processing. We also note that spills or releases would in any event be considered solid wastes.

One commenter disagreed with EPA s statement in our proposal that persons who break CRTs before sending them to processors should not be subject to our proposed conditions for CRT glass processing. Breaking CRTs and separating components constitute reclamation and should require a permit, according to this commenter. Another 13 commenter said that the Agency should require licensing for CRT processors. Another commenter suggested that EPA should consider a tiered, reduced permitting structure for solid waste recycling, such as the system prevailing in California. Under this scheme, each entity in the collection, processing, and recycling chain is accountable for one or more responsibilities.

EPA disagrees that collecting CRTs, breaking CRTs, or separating components should necessarily require a RCRA treatment permit. These actions may be performed by almost anyone sending a CRT to a recycler. The requirements of 40 CFR § 261.39( a) concerning storage, transportation, labeling, and speculative accumulation are adequate to ensure that broken CRTs are handled as commodities; there is no need to impose other Subtitle C requirements required under 40 CFR Parts 264 and 265. Nor is there a need to subject persons who merely break CRTs to the provisions concerning high temperature activities.

The Agency does not necessarily disagree that breaking CRTs and separating the components may constitute reclamation. Nevertheless, when a person receives broken CRTs that are packaged and labeled in accordance with today s rule, the materials are commodity like and the person or facility in question should not have to comply with the provisions of a hazardous waste storage permit. Nor should they be subject to federal licensing or permitting requirements when other recyclers of excluded materials are not subject to such requirements. EPA generally does not regulate reclamation processes themselves. States are of course free to impose more stringent requirements if they believe such requirements are justified.

Some commenters urged that EPA impose additional requirements on CRT processors, such as environmental management standards, emissions and ventilation standards, notification requirements, recordkeeping and tracking of wastes, employee training, and worker health and safety protections. Some of these commenters suggested that these requirements should also apply to persons sending CRTs for recycling. Some suggestions were substantially identical to certain practices required under the universal waste rule, such as employee training, container standards, notification, and tracking. Other commenters, however, suggested requirements that were much more stringent than those applicable to universal waste handlers. For example, a few commenters said that additional worker health and safety provisions were needed under our rule, and one commenter expressed concerns that the OSHA permissible exposure limits ( PELs) at 29 CFR Part 1910 do not apply to handlers of materials that are not solid wastes, or to recyclers with fewer than ten employees. This commenter stated that excluding CRTs from the definition of solid waste would remove any enforceable standards that might protect the public from the dangerous processing operations currently occurring in China. One commenter suggested requiring processors to ensure that lead particles are contained such that workers, the surrounding community, and the environment would be protected. Another commenter recommended that processors be provided with educational materials and trained in the identification of mercury containing components, to ensure proper handling.

We have responded elsewhere in this rulemaking record to those commenters who argued that the Agency should impose the universal waste requirements of notification, tracking, and employee training on CRT processors. With respect to OSHA requirements, 14 we disagree with the commenter who said that the worker health and safety provisions of that statute do not apply to people handling materials that are not solid wastes. The permissible exposure limits ( PELs) of section 1910 of the OSHA regulations are not tied to EPA= s RCRA definitions. Additional worker health and safety requirements are not necessary. It is true that the requirements do not apply if a facility has fewer than ten employees, but this is true of any recycler. EPA disagrees with the statement that the lack of such requirements will lead to situations similar to those allegedly prevailing in China. We note that today s rule specifically prevents the use by CRT glass processors of temperatures that are high enough to volatilize lead. This requirement should go far to ensure that workers and the community are protected. In addition, the contamination of Chinese soil and groundwater mentioned by one of these commenters appears to be largely a result of dumping, rather than recycling alone. Today s rule does not change the legal status of CRTs that are dumped or abandoned. We also note that education and training requirements for mercury containing components is outside the scope of this rulemaking. In any event, the Agency has no data indicating that CRT monitors contain mercury.

One commenter suggested that all handlers be required to demonstrate that their recycling is legitimate and that there are no releases of toxic constituents either to the environment or through introduction in a consumer product. Another commenter wanted the Agency to require that all processors prepare a CRT management plan, to be approved by the appropriate State agency, and one commenter wanted EPA to require licensing for companies involved in CRT handling, demanufacture, and recycling. Still another commenter suggested that processors should be required to ensure that lead particles are contained such that workers, the surrounding community, and the environment would be protected. Finally, one commenter suggested that EPA should promulgate standards addressing emissions of all potential hazardous constituents in the environment and the workplace. In response, we note that all recycling of secondary materials must be legitimate ( see, e. g., the memorandum titled F006 Recycling , from Sylvia K. Lowrance to EPA Hazardous Waste Management Division Directors, April 26, 1989). However, there is no federal requirement that such recyclers must necessarily demonstrate legitimacy before beginning operations ( if that is what the commenter intended to suggest). The Agency sees no reason to impose legitimacy requirements on CRT processors that do not apply to other recyclers. With respect to State approved management plans and licensing, the Agency believes that States, rather than EPA, are in the best position to decide whether such requirements are appropriate for a particular facility. The same is true of standards addressing emissions of hazardous constituents or broad standards involving all releases of lead particles. In addition, the Agency has no data indicating that CRT recycling results in significant releases of non lead hazardous constituents.

One commenter suggested that CRT processors be required to capture any CRT dust and fines produced. The Agency believes that this requirement is redundant, since it is our understanding that CRT fines are generally sent for recycling in any event. In addition, our storage requirements and the prohibition against the use of temperatures high enough to volatilize lead are more preventative than the general requirement suggested by the commenter. 15 Some commenters, on the other hand, believed that several of our proposed requirements were unnecessary. For example, some commenters objected to EPA= s proposed requirement that broken CRTs be stored either in a container or a building. One commenter believed that these materials should not be classified as solid wastes if they were stored on a concrete pad or the equivalent, since this practice should be adequate for a coarse solid material which is insoluble in water. We continue to believe, however, that storing broken CRTs outdoors prior to processing is inconsistent with the premise that they are commodity like, since they can easily be damaged by excessive moisture or wind unless they are packaged. The same is true for processing CRTs outdoors, even if the processing takes place on a concrete pad. However, we note that under today s rule, intact CRTs and processed CRT glass sent to glass manufacturers or lead smelters may be stored on concrete pads or on the ground without packaging and labeling ( see 40 CFR § § 261.4( a)( 23) and 261.39( c)). In the case of intact CRTs, packaging or storage in a building is generally not necessary to minimize releases to the environment, since the CRTs are contained in their housing. However, if prolonged storage outdoors renders the CRTs unfit for recycling, they would become solid wastes, subject to full Subtitle C regulation provided they were also hazardous wastes. In addition, the exclusion in today s rule does not affect the obligation to respond to and remediate any releases of hazardous wastes that may occur.

Other commenters suggested replacing our proposed requirements with a requirement that processing and storage of CRT glass must take place in Aenvironmentally contained areas ( water and particle containment)@ or must be Astored in a manner that meets other environmental regulations that control or limit release to the environment.  EPA disagrees with this suggestion because requiring processing to be conducted in Aenvironmentally contained areas  is too vague to provide guidance to the regulated community. Similarly, a requirement that materials be Astored in a manner that meets other environmental regulations@ would be redundant, since they are required to comply with all applicable environmental requirements in any event.

Some commenters appeared to believe ( incorrectly) that our proposal would have required processed glass to be packaged or stored in a building. However, we note that under the proposal ( and under today s final rule) processed CRT glass sent to a CRT glass manufacturer or to a lead smelter would not have to be either packaged or stored in a building ( see 40 CFR § 261.39(( c)). Under today s final rule, processed glass sent to other kinds of recycling need not be packaged or labeled if it is determined by regulatory authorities to be legitimately reused as an effective substitute for a commercial chemical product ( this exclusion is explained elsewhere in this rulemaking record).

One commenter said that the Agency should completely prohibit the outdoor storage of all CRT glass. The Agency disagrees with this suggestion; processed CRT glass resembles a commodity and therefore does not warrant such extensive regulation. The same commenter also suggested adopting container standards that would   prevent releases of components and CRT glass to the environment.  In response, we note that under our proposal, 40 CFR § 261.39( a)( 1)( ii), containers must be   constructed, filled, and closed to minimize identifiable releases to the environment of CRT glass ( including fine solid materials).  EPA does not see any practical difference between our language and that suggested by the commenter. 16 With respect to public notice requirements ( which we did not propose) many commenters argued that such notice for CRT processing operations should be conducted pursuant to pre existing state and local requirements, and should not be imposed as a function of our proposed conditional exclusion. Some commenters pointed out that local notice and public meetings are governed by various state or local requirements concerning siting, zoning, or licensing. They believed that matters of local notice and public participation are generally best decided at the state, county, or municipal level. One commenter pointed out that additional opportunities for public involvement are also afforded under existing federal laws, such as the Emergency Planning and Community Right to Know Act and, in the case of potential worker exposures, the Occupational Safety and Health Act. This commenter feared that imposing additional requirements for public notice could increase costs for CRT processors, thereby undermining the goal of CRT recycling.

Other commenters, however, supported the CSI Council recommendation that glass processors be required to notify local communities of their activities. They thought that a federal public notice requirement was important for the health and well being of communities that house CRT glass processors. They also believed that workers at these facilities should know of any health or safety risks involved with their daily activities. One commenter stated that it was not sufficient to defer to local authority to provide notice, and that such notice was a federal responsibility that must be retained.

In response to these comments, EPA continues to believe that federal public notice requirements for CRT recycling are unnecessary. In general, we have not mandated such requirements for hazardous waste recycling facilities, unless they obtain RCRA permits for storage of hazardous waste prior to recycling. Since glass processors are managing materials that are commodity like if handled pursuant to today s conditions, it would be inappropriate to impose the same public notice requirements that are imposed on facilities that store hazardous wastes. In addition, the public generally will be able to learn of these facilities through other notices or filings at the state, county, or municipal level.

Even though we are not significantly modifying our proposed requirements for glass processors, we believe that some of our proposed language could benefit from clarification. We are therefore revising some of this language. First, we note that the proposed storage requirements for broken CRTs prior to processing ( storage in a building or in a properly labeled container) would also have applied under our proposal to CRTs actually undergoing processing. This application was not our intent because CRTs cannot physically remain in a container while being processed. Therefore, we are revising proposed 40 CFR § 261.39( b) to remove the reference to labeling and placement in a container. Used broken CRTs undergoing processing need only be stored in a building, and may not be speculatively accumulated.

Second, we note that one of the activities encompassed in today s definition of   CRT processing  at 40 CFR § 260.10 (  receiving broken or intact CRTs ) generally need not ( and sometimes cannot) take place in a building. We are therefore removing our proposed requirement that all CRTs be   processed within a building.  Instead, today s rule requires 17 that   all activities specified in paragraphs ( 2) and ( 3) of the definition of   CRT processing  in 40 CFR § 260.10 must take place within a building.  This means that only breaking or separating CRTs, or sorting or otherwise managing glass removed from CRT monitors, must be performed in a building. Actual receipt of the CRTs may occur outside.

Exclusions for Processed CRT Glass Under the proposal, processed glass from used CRTs would be excluded from the definition of solid waste if it were sent for recycling to a CRT glass manufacturer or a lead smelter ( 40 CFR § 261.39 ( c)). If it were sent to any other kind of recycling, it would be excluded if it were stored, labeled, and transported similarly to used, broken CRTs ( 40 CFR § 261.39( d)). In neither case could the processed glass be speculatively accumulated. If it were used in a manner constituting disposal, all processed glass from used CRTs would have to comply with the storage, labeling, and transportation requirements applicable to used, broken CRTs and the applicable requirements of 40 CFR Part 266, Subpart C.

In the proposal, we explained that processed glass from used CRTs destined for a CRT glass manufacturer or a lead smelter meets the regulatory criteria in 40 CFR § 260.31( c) for a variance from the definition of solid waste. Accordingly, the Agency decided that the resulting material is commodity like and should be excluded from the definition of solid waste. In particular, the Agency tentatively found that processed CRT glass sent to glass manufacturers or lead smelters needs minimal further processing and has economic value and strong end markets. We also found that processed CRT glass is similar to materials that glass manufacturers and lead smelters use as feedstock, and that it is handled to minimize loss. For a more complete discussion of these criteria and the Agency s findings, see the proposal at 67 FR 40514. No comments on these findings have caused the Agency to change them, so we are adopting them as final. We also believe that recycling CRT glass at lead smelters appears to be just as legitimate as glass to glass recycling, and that an exclusion for this material could turn out to be useful if the growing use of flat screens decreases the potential for glass to glass recycling.

The Agency solicited comment on whether processed glass destined for lead smelters should be eligible for the exclusion. Processed glass is sent to lead smelters for reclamation of lead and also for use as a flux agent ( to promote fusing of metals or to prevent the formation of oxides). The Agency also solicited comment on whether to exclude processed glass from the definition of solid waste without packaging and labeling requirements if it were sent to copper smelters for use as a flux agent. In addition, we solicited comment on an identical exclusion for processed glass sent for recycling into other glass materials, such as optical beads, decorative objects, radiation shielding materials, and acoustic barriers. We requested information from commenters about whether processed CRT glass sent for these glass uses or to copper smelters was commodity like.

After evaluating all comments received, the Agency is retaining our exclusion for processed CRT glass sent to glass to glass manufacturers and lead smelters as proposed. Processed glass sent to copper smelters and other glass uses is not a solid waste if it is legitimately used or reused without reclamation as an effective substitute for a commercial product, or as an ingredient in an industrial process to make a product pursuant to 40 CFR 18 § 261.2( e)( 1)( i) or ( ii)). Processed glass sent for any of these types of recycling may not be speculatively accumulated. If it is used in a manner constituting disposal, all processed glass from used CRTs must comply with the storage, labeling, and transportation requirements applicable to used, broken CRTs and the applicable requirements of 40 CFR Part 266, Subpart C. In order to be eligible for today s exclusion, importers of processed glass from used CRTs must comply with these requirements as soon as these materials enter the United States.

The significant comments received on this issue and our response to the comments are described below.

Response to Comments Commenters who addressed the issue of CRT glass sent to lead smelters generally supported our proposed exclusion from the definition of solid waste for processed glass sent to this destination ( without packaging and labeling requirements). These commenters thought that CRT glass sent to lead smelters ( for reclamation and use as a flux agent) is commodity like. Because the Agency agrees with these comments, and for the reasons stated in the proposal ( see 67 FR 40514), we find that processed CRT glass is commoditylike and we are finalizing the exclusion at 40 CFR § 261.39( c) as proposed.

One commenter believed that the Agency should allow processed glass to be sent to glass manufacturers or lead smelters without any conditions, including those for speculative accumulation. This commenter noted that processed glass sent for these uses already fit the criteria for a Apartially reclaimed@ variance from the definition of solid waste under 40 CFR ' 260.31( c); hence, no conditions should be required. The Agency disagrees with this commenter. Even if the processed glass meets the criteria for the variance in question, the speculative accumulation requirement is necessary to ensure that the materials are actually recycled and not abandoned. We also note that the conditions under which such variances are granted are site specific and vary according to circumstances. They frequently include conditions relating to storage and land disposal.

A few other commenters believed that our proposed exclusions for processed CRT glass were unnecessary, since processed glass sent to a lead smelter is used directly as an ingredient in a production process, and would therefore qualify for the use/ reuse exclusion at 40 CFR § 261.2( e). Alternatively, even if reclamation were required, the glass would be a characteristic by product destined for reclamation, which again would not be a waste, unless speculatively accumulated ( see 40 CFR § § 261.2( c)( 3) and ( 4)). One commenter said that use of CRT glass in CRT glassmaking, use of CRT glass as a flux in a smelter, and use of CRT glass would all fall under 40 CFR § 261.2( e). In response, the Agency notes that the more specific regulatory exclusions promulgated today for CRT glass going to glass manufacturing and lead smelting provide more clarification to the regulated community than the more general provisions cited by the commenters. EPA agrees, however, that CRT glass going to other kinds of recycling may sometimes be eligible for a use/ reuse exclusion on a case by case basis under 40 CFR § 261.2( e). 19 Although the Agency has not specifically addressed the regulatory status of processed CRT glass sent to smelters, we note that these commenters  interpretations do not appear to be consistent with previous regulatory interpretations or with regulatory definitions In any event, the more specific regulatory exclusions promulgated today for CRT glass provide greater clarity to the regulated community than the more general provisions cited by the commenter. Some commenters, on the other hand, objected to allowing CRT glass to go to smelters without additional controls. One commenter cited financial and environmental problems caused by smelters located in the commenter= s state, and another believed that CRT glass should be restricted from going to smelters because it could lead to an increase in lead air emissions or lead content in the slag from these facilities.

EPA does not agree with the commenter who cited general concerns about smelters as a rationale for restricting processed CRT glass sent to these facilities. The commenter was concerned about financial and environmental problems caused by smelters in one state and did not tie these concerns to the use of processed CRT glass. EPA believes that these concerns are outside the scope of this rulemaking, and that they should be addressed, if necessary, in the context of rulemakings applicable specifically to smelters.

Many commenters supported allowing a similar exclusion for processed glass sent to copper smelters. They pointed out that such glass is used as a flux agent in a very similar manner at copper smelters, and that it seems unjustified to impose different conditions on materials destined for virtually identical uses. One commenter noted that at least one copper smelter has product specifications for recycled flux materials spelled out in its authority to operate issued by the relevant government agency. The specification includes a minimum flux value and maximum contaminant level. The commenter stated that CRT glass met these criteria.

Another commenter pointed out that virgin copper concentrate already contains approximately 1% lead. Therefore, lead is a constituent that is already present in the copper smelting process and is already being managed in process residues. According to this commenter, the use of processed CRT glass will not significantly increase the amount of lead already resulting from the copper smelting process and being managed in the slag or air pollution control sludge.

Some commenters were also concerned about the capacity of CRT glass manufacturers to absorb the large volume of CRT glass that is generated in this country. They urged the Agency to take this concern into account and encourage recycling by allowing similar exclusions for processed CRT glass sent to glass manufacturing, lead smelting, or copper smelting.

The Agency agrees with those commenters who pointed out that the degree of processing that is required for use in a copper smelter appears to be the same as that required for use in a lead smelter. The economics also may be similar for fluxes used in both kinds of smelters. Processed glass is composed mainly of silica, which is useful as a flux, although lead is not recovered when CRT glass is used as a flux at a copper smelter. Nevertheless, the Agency has been unable to confirm that CRT glass is accepted at actual copper smelters. For this 20 reason, we cannot currently make a finding that CRT glass sent to copper smelters is commodity like, and we are not finalizing our proposed exclusion. However, we note that if the processed CRT glass were legitimately used or reused without reclamation as an effective substitute for a commercial product ( i. e., as a flux agent), it could be excluded on a case by case basis by states or EPA as an effective substitute for a commercial product under 40 CFR § 261.2( e)( ii) ( see letter from Michael Shapiro to Christian Richter of the American Foundrymen s Society, March 8, 1995).

With respect to processed CRT glass sent for recycling into other glass uses, commenters were divided. Some believed that these uses were likely to be commodity like; others disagreed. Commenters submitted very little data about these uses. Since the Agency has at present very little information about their status as commodities, we are not finalizing our proposed exclusion. However, similarly to the case of processed glass sent to copper smelters, if the glass is legitimately used or reused as an effective substitute for a commercial chemical product, or used as an ingredient in an industrial process to make a product ( provided the materials are not being reclaimed), it could be excluded from the definition of solid waste by States or EPA on a case specific basis under 40 CFR 261.2( e)( i) or ( ii).

One commenter requested that the Agency clarify the status of wastes ( i. e.,   contaminated batches ) generated during the processing of CRT glass. The commenter was apparently referring to recycled glass or glass fines with a composition that is unsuitable for glass furnaces. EPA believes that glass furnaces are aware of the specifications needed to make new glass and that glass fines not suitable for such furnaces are not sent to these destinations. If the glass is sent to a lead smelter instead, it would be regulated under 40 CFR § 261.39( c). If the glass is sent to other kinds of recycling, it could be excluded from the definition of solid waste by States or EPA on a case specific basis under 40 CFR § § 261.2( e)( i) or ( ii).

One commenter noted an inconsistency in our proposed language governing use constituting disposal of processed CRT glass. We had proposed that such material meet both the applicable requirements of 40 CFR Part 266, Subpart C and our management requirements for broken CRTs at proposed 40 CFR § § 261.39.( a)( 1 4). The commenter stated that our proposed management requirements ( for packaging, labeling, and storage) are not consistent with the requirements of 40 CFR Part 266, Subpart C. We presume the commenter was referring to 40 CFR § § 266.21 23, which require, among other things, the use of the hazardous waste manifest. The commenter suggested deleting the reference to 40 CFR § § 261.39.( a)( 1 4). We agree with this commenter. Although it is possible to comply with both our proposed packaging and labeling conditions and the requirements of 40 CFR Part 266, Subpart C, we believe that our proposed conditions would be redundant if all applicable requirements of 40 CFR Part 266, Subpart C are met. Therefore we have adopted this commenter s suggestion. Processed glass ( as well as broken CRTs) used in a manner constituting disposal need only comply with the applicable requirements of 40 CFR Part 266, Subpart C ( see 40 CFR 261.39( a)( 4) and ( d).

Another commenter suggested deleting the reference to Part 266 requirements entirely, since processed glass used in a manner constituting disposal would be subject to these 21 requirements even in the absence of such a reference. However, we are retaining the reference because it provides more clarity for the regulated community.

D. Exports and Imports Under the June 12, 2002 proposal, exporters of used CRTs for reuse or recycling would not have been required to submit any notifications prior to export. Processed glass imported into the United States would be excluded if it complied with the proposed conditions. Because the imported processed glass would not be a hazardous waste if it met the conditions of the exclusion, it would not be subject to the hazardous waste import requirements of Subpart F of 40 CFR Part 262. The CSI Council had recommended that entities exporting CRT and CRT glass be subject to various notice and consent provisions, depending on whether the CRT glass was coated or uncoated and on the destination of the materials ( for a complete description of the CSI recommendations, see the proposal at 67 FR 40516). For example, the CSI Council recommended that CRTs and coated CRT glass should be subject to the same notice and consent provisions as exporters of hazardous waste in Subparts E or H of 40 CFR Part 262.

In its proposal, the Agency stated its belief that we did not have legal authority to require notification under 40 CFR Subparts E and H, or the authority to require additional notifications, for CRTs or CRT glass that were not solid wastes because they were in compliance with our proposed conditions. We noted that if used CRTs were added to the universal waste program, we would have the authority to require notification at least for exported broken CRTs. We solicited comment on whether the need for export notification requirements recommended by the CSI would warrant adding used CRTs to the universal waste program, and whether these requirements would be unduly burdensome.

EPA s proposal elicited many comments and some additional data on the export of CRTs for recycling. These comments and data convinced us that exported CRTs often are not handled as valuable commodities. For this reason, we have reconsidered our earlier position about imposing notification requirements on exports. Therefore, today s rule requires exporters of CRTs for recycling to comply with notice and consent requirements that are similar to those found in 40 CFR Part 262 Subparts E and H for exporters of hazardous waste. The rule also requires exporters of CRTs for reuse to submit a one time notification to EPA. In order to be eligible for today s exclusion, importers of used, broken CRTs must comply with the packaging, labeling, and speculative accumulation requirements of 40 CFR § 261.39( a)( 1)( 4) as soon as the materials enter the United States.

The new export requirements, significant comments received, and our responses to the comments are described in more detail below.

Response To Comments Many commenters who addressed this question expressed concern about exporting CRTs and other electronics for recycling, especially to developing countries. These commenters argued that our proposed rule would exacerbate the effects of market dynamics, lack of existing regulatory controls, and the absence of a domestic recycling 22 infrastructure and would increase the amount of electronic waste that is shipped abroad and managed inappropriately. One commenter further argued that our proposal would prevent the growth of a domestic electronics recycling industry by making it easier to export electronics.

To address such concerns, some commenters suggested that the Agency adopt notice and consent procedures for exported CRTs similar to those currently found at 40 CFR 262, Subparts E and H for exports of hazardous waste. Some of these commenters said that EPA should impose notification requirements on exported CRTs as an additional condition of the exclusion from the definition of solid waste. They believed that the Agency has adequate authority to impose such conditions without adding these materials to the universal waste rule. One of these commenters stated that a conditional exclusion from a waste classification is an exclusion only from the RCRA Subtitle C regulations, and not from the RCRA statute, in which the notice and consent provisions are imposed ( 42 USC § 6938.) Thus, according to this commenter, if a material comes within the statutory definition of waste, the Agency has the jurisdiction to selectively exclude or retain some of all of its regulatory requirements.

After evaluating these comments, the Agency has decided to impose notice and consent requirements as a condition of today s exclusion from the definition of solid waste on CRTs exported for recycling. The comments, and data submitted by the commenters, have convinced us that unfettered export of CRTs for recycling could lead to environmental harm. Information in the record shows that exported electronics may not be handled as valuable commodities in foreign countries. In fact, there is documentation that they are sometimes managed so carelessly that they pose possible human health and environmental risks from such practices as open burning, land disposal, and dumping into rivers. Notice and consent requirements mean that the receiving country will be informed of the proposed export, after which the country may consent or not, based on its analysis of whether the receiving facility can properly recycle the CRTs as commodities in an environmentally sound manner. EPA has therefore decided to ensure that the importing countries are able to consent ( or withhold consent) when CRTs are proposed to be recycled within their borders.

EPA believes that sections 2002, 3002, 3007, and 3017 of RCRA provide authority to impose this condition, because used CRTs sent abroad are sufficiently waste like to justify this requirement, and because notice and consent help ensure that the CRTs are not discarded. We have therefore reconsidered our earlier position ( discussed in the preamble of our proposed rule at 67 FR 40516) about imposing notice and consent requirements on CRTs exported for recycling. EPA has the authority to ensure that CRTs exported for recycling are handled in a manner consistent with commodity like status.

EPA considered simply requiring exporters of CRTs for recycling to comply with the current notice and consent requirements in 40 CFR Part 262. These requirements, however, rely on the hazardous waste manifest and other Subtitle C provisions that EPA is not imposing on used CRTs. Consequently, we are promulgating separate ( although very similar) export requirements that will apply exclusively to conditionally exempt CRTs exported for recycling. In addition, the notice and consent requirements promulgated today 23 do not apply to processed glass that is exported, since there is no information available to us indicating that this material is not handled as a commodity when exported.

Under today s rule, used CRTs exported for recycling are not solid wastes provided the exporter notifies EPA and obtains a subsequent written consent forwarded by EPA from the receiving country. The provisions that we are promulgating today in 40 CFR § 261.39( a)( 5)( i)( ix) and 40 CFR § 261.40 require exporters of used CRTs destined for recycling ( whether broken or intact) to notify EPA of an intended export 60 days before the initial shipment is intended to be shipped off site. The notification may cover export activities extending over a 12 month or shorter period. The notification must include contact information about the exporter and the recycler, including any alternate recycler. The notification must include a description of the manner in which the CRTs will be recycled. It must also include the frequency and rate at which CRTs will be exported, the period of time over which they will be exported, the means of transport, the estimated total quantity of CRTs, and information about transit countries through which the CRTs will pass. Notifications must be sent to EPA= s Office of Enforcement and Compliance Assurance, which will notify the receiving country and any transit countries. Where the receiving country consents in writing to the receipt of the CRTs, EPA will forward the written consent to the exporter. The exporter may proceed with shipment only after he has received a copy of the written consent from EPA. If the receiving country does not consent to receipt of the CRTs or withdraws a prior consent, EPA will notify the exporter in writing. EPA will also notify the exporter of any responses from transit countries. Exporters must keep copies of notifications and consents for a period of three years following receipt of the consent.

EPA has decided to require exporters of used, intact CRTs sent abroad for recycling to meet the same requirements as those applicable to exporters of used, broken CRTs. Although used, intact CRTs are more commodity like than used, broken CRTs, they are more likely to be exported, and information in the record does not indicate that they are less likely to be discarded or handled as low value materials abroad. We believe that notice and consent help ensure that the CRTS are not discarded.

Some commenters urged EPA to forbid all exports of CRTs to developing countries. EPA does not agree with this suggestion because RCRA does not provide the authority to unconditionally ban exports of solid and hazardous wastes if the exporter complies with the existing regulatory requirements governing the export of these materials. We also disagree with this suggestion for practical reasons. Such a ban would prevent even the safe recycling of hazardous wastes abroad and would discourage resource recovery and reuse.

One commenter suggested that verifiable documentation should be required to substantiate the approval by the receiving country and the receipt by an approved CRT recycling facility. The commenter did not specify whether the approval of the CRT recycling facility should be performed by EPA or by the receiving country. EPA believes that today s requirements for notice and consent are sufficient to document approval by the receiving country. We do not believe that documentation of receipt by an approved recycling facility is necessary after the consent of the receiving country has been obtained. 24 The receiving country is in a better position than EPA to ascertain whether materials are properly managed after they enter that country.

Some commenters believed that our proposed rule was inconsistent with various international agreements involving the export of hazardous waste. In particular, one commenter stated, the proposal is inconsistent with legal obligations under the treaty law of the Organization for Economic Cooperation and Development ( OECD), the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and the Stockholm Declaration.

With respect to the OECD obligations, the commenter believed that CRTs, because of the presence of lead, would be considered hazardous wastes under OECD Decision Recommendation C( 86) 64/ FINAL and under OECD Decision C( 92) 39/ FINAL ( even CRTs from households and CESQGs). According to the commenter, the export of these materials, either for recycling or disposal, would therefore be illegal unless subject to the export controls of 40 CFR Part 262 Subpart E ( or its equivalent) or Subpart H.

Concerning OECD Decision C( 86) 64/ FINAL, the commenter s concern has been mooted in any event by the notice and consent provisions in the final rule for used CRTs exported for recycling. OECD Decision C( 2001) 107/ FINAL, which amends Decision C( 92) 39/ FINAL, recognizes that   certain Member countries have developed regulations used to determine whether or not wastes are controlled as hazardous wastes.  ( OECD Amended Decision C( 2001) 107/ FINAL, Section B, paragraph ( 4), footnote 1). Consistent with this provision, the United States interprets the OECD Decision C( 92) 39/ FINAL to be applicable only to exports from the United States of materials that are defined as hazardous waste under U. S. national procedure, subject to federal RCRA manifesting requirements. More specifically, EPA s regulations regarding the transboundary movement of hazardous waste for recovery to OECD countries in 40 CFR Part 262, Subpart H apply specifically only to hazardous waste that meets the federal definition of hazardous waste in 40 CFR § 261.3 and is subject to federal RCRA manifesting requirements in 40 CFR Part 262, Subpart B, to the universal waste management standards of 40 CFR Part 273, or to state requirements analogous to 40 CFR Part 273 ( see 40 CFR § § 262.80 and 262.89( a).

This commenter also believed that the United States was in violation of the Basel Convention. The commenter explained that CRTs would be considered hazardous waste under the Basel Convention because they are listed as items A1180 and A2010 of Annex IX [( sic]. Similarly, the commenter believed that our proposed rule was in violation of the Basel Ban Amendment, which bans all hazardous waste exports from countries that are a part of the OECD, the European Union, and Liechtenstein to any other countries.

The Agency is sympathetic to concerns about the potential risks of exporting CRTs for recycling. Therefore, to ensure that CRTs exported for recycling are handled in a manner consistent with commodity like status, we are requiring that these materials be subject to the notice and consent requirements described in detail above. We are currently not a party to the Basel Convention or to the Ban Amendment, which, in any event, has not entered into force. 25 Finally, the commenter also stated that the proposal violated the principles of the Stockholm Declaration ( the 1972 Stockholm Declaration on the Environment) which the United States signed and which calls for signatory countries to   ensure that activities within their jurisdiction of control  do not cause damage to the environment of other States   The commenter believed that exporting CRTs for recycling to China ( which has banned the import of CRT waste) was inconsistent with the spirit of international cooperation called for by the Stockholm Declaration. EPA does not believe that the export of CRT waste is in violation of the Stockholm Declaration, which in any event is not a legally binding instrument. Furthermore, the final rule s notice and consent provisions remove any suggestion of inconsistency with the spirit of international cooperation. Similarly, the final rule s notice and consent provisions should facilitate implementation of any national laws that may restrict the import of certain CRTs.

Other commenters argued that notice and consent requirements, besides being unnecessary, were likely to discourage the export of CRTs for desirable recycling by making such export more burdensome. Another commenter noted that glass recyclers need to sell recovered CRT glass to developing countries, because the volume of obsolete CRT equipment will increase just as the domestic demand for CRT glass parts will be reduced because of new technology such as flat panel screens.

We disagree with those commenters who said that an export notification and consent requirement would be burdensome. The Agency estimates that these requirements will impose a burden of approximately four hours per year ( on average) per respondent. We believe that this burden is not excessive, especially since it helps ensure that exported CRTs are handled in ways consistent with an exclusion from the definition of solid waste. We also do not believe that these requirements will significantly affect the quantity of CRTs or CRT glass exported for recycling, since the relative amount of such materials recycled domestically and abroad depend principally on other economic factors.

Another commenter pointed out that questions regarding the export of used CRTs for recycling may implicate several bilateral, regional, and multilateral environmental agreements as well as important regional and global markets. This commenter also noted that EPA is currently preparing proposed implementing legislation for the Basel Convention, and the Agency will likely need to address the relationship between the Convention s scope and the existing U. S. waste management requirements under RCRA. Similarly, EPA is expected to propose regulations to implement recent changes to the OECD system for controlling transboundary shipments of waste destined for recovery operations within OECD member countries. The commenter believed that any questions regarding the export of used CRTS from the U. S. are best addressed in the context of these other broader international policy initiatives.

With respect to the Basel Convention, as noted above, the United States is not currently a party to the Convention. However, the Agency believes that it is not necessary to wait until the Convention is ratified to impose notice and consent requirements on the export of CRTs for recycling. Since we agree with the arguments of those who suggested these requirements, the simplest course is to codify the requirements in this rulemaking rather than delay them indefinitely. We also do not agree that EPA s future proposed regulations 26 regarding the transboundary shipments of wastes to OECD countries would be an appropriate vehicle for these requirements. The OECD rulemaking effort would be designed primarily to implement a specific Council Decision, C( 2001) 107/ FINAL, of the OECD, and would apply only to transboundary shipments destined for recovery operations in OECD member countries. CRTs are exported to many countries not belonging to the OECD. For these reasons, we are not delaying the promulgation of our notice and consent requirements for CRTs exported for recycling.

One commenter suggested ( in lieu of a notice and consent procedure) that EPA require exporters to keep records, such as shipping papers, that would allow tracking of CRT shipments or the amount paid by the shipper for the material. Another commenter suggested requiring exporters to demonstrate that the materials are being sent to a credible end market and reasonable positive end value. Agency has rejected these approaches because they would not give notice to the receiving country, nor would it give the country the opportunity to refuse consent to a shipment. It is therefore not sufficient to ensure that the material is treated as a commodity. The receiving country should be notified to help ensure that the CRTs will be recycled in an environmentally sound manner. Requiring an exporter to show evidence of payment would not involve the receiving country, and would thus not be a sufficient requirement.

Another commenter stated his belief that the export requirements found in 40 CFR Part 262 were too burdensome, and suggested alternative documentation detailing specific use of the material, including repair and resale of the unit; recovery of glass, metals, and plastics with proper disposal or recycling of all hazardous components; or manufacturing of lead crystal glass. The exporter would also be required to submit evidence that the recipient paid more than a nominal amount for the material. The Agency is not convinced that these suggested requirements are significantly less burdensome than the export requirements of 40 CFR Part 262. In addition, they would not allow the receiving country to help ensure that the CRTs are managed safely as a commodity.

Another commenter said that export controls on used CRTs were unnecessary because CRTs not meeting the terms of our exclusion would be solid and hazardous wastes and therefore subject to 40 CFR Subpart E. In addition, according to this commenter, under 40 CFR § 262.2( f) persons claiming the exclusion will bear the burden of demonstrating that the materials satisfy the conditions of the exclusion and that they will be recycled after they are exported. In response, we note that CRTs could easily meet the conditions of the exclusion in this country, but then be subject to subsequent mismanagement or disposal abroad. The commenter s suggestion would not allow the receiving country to ensure that the CRTs are recycled in an environmentally sound manner.

Another commenter suggested that EPA should also require semiannual or annual reporting, which would provide valuable information on the role of exports in maintaining a viable market for used CRTs. This commenter also suggested requiring recordkeeping requirements for domestic recyclers. The Agency is not adopting these suggestions because we believe that the export notices in today s rule may be tracked without requiring additional reporting from exporters of CRTs. Concerning domestic recyclers, we do not 27 believe that additional recordkeeping requirements are needed for materials that are handled according to the conditions in today s rule.

Another commenter suggested that the Agency impose full RCRA export requirements on all CRTs exported for recycling, whether broken or unbroken, used or unused. As part of the RCRA requirements, this commenter also suggested requiring documentation from the destination facility ( presumably as part of the hazardous waste manifest requirements.) EPA disagrees that unused CRTs should be subject to notice and consent requirements, because these materials have always been considered commercial chemical products being reclaimed. As a practical matter, it is also unlikely that many unused CRTs are exported. In addition, we are not requiring any documentation from the recycling facility because we are not requiring the use of the hazardous waste manifest, which is not appropriate for materials that are excluded from the definition of solid waste.

The Agency notes that intact CRTs exported for reuse are identical in appearance to those exported for recycling. Consequently, to help ensure that the intact CRTs are actually reused abroad, we are requiring persons who export used, intact CRTs for reuse to submit a one time notification to the Regional Administrator with contact information and a statement that the notifier plans to export used, intact CRTs for reuse. These notifications will allow regulatory authorities to contact the notifier, when appropriate, to ask for verification that the CRTs are exported for reuse instead of recycling or disposal. These persons must keep copies of normal business records demonstrating that each shipment of exported CRTs will be reused, and this documentation must be retained for three years from the date the CRTs were exported. Examples of normal business records include those that document the transfer of used equipment to the consignee for reuse, including name and address of the consignee, description of the shipment, and conformance with any product specifications, as well as the amount paid ( if any) for the exported material. We believe that our right to require such basic notification is inherent in our authority to regulate discarded materials, and in our RCRA section 3007 authority to obtain information pertaining to materials that may become solid or hazardous wastes. Because a one time notification is adequate to give the Regional Administrator notice about persons who are exporting for reuse, additional notifications are not necessary each time CRTs are exported for this purpose.

One commenter suggested that the Agency require persons who export CRTs for reuse to demonstrate that the units are certified as reusable or repairable by the importing entity. We believe that this requirement could impose significant burdens on exporters of used CRTs for reuse, with few corresponding benefits ( for example, the certifications from entities located abroad would be difficult to verify.) For this reason, we are not adopting this suggestion.

Another commenter suggested clarifying in the preamble to our final rule that if intact CRTs exported for reuse were managed in a certain manner ( e. g., loose placement in a shipping container), they would not be considered to be intended for reuse. However, EPA believes that the question of determining whether CRTs are intended for reuse is best addressed on a case by case basis by the appropriate regulatory authorities rather than by categorical guidance. 28 Another commenter said that applying export requirements to CRTs could interfere with legitimate business practices such as sending CRTs under manufacturer warranty to other countries for repair. In response, EPA notes that sending intact CRTs abroad for repair, rather than recycling, would not be subject to today s notice and consent requirements. The same commenter was concerned that export provisions for CRTs could also preclude glass processors from sending leaded glass abroad for legitimate uses. In response, we note that processed CRT glass is also not subject to the notice and consent requirements of today s rule.

E. Universal Waste In our June 12, 2002 notice, the Agency proposed a conditional exclusion from the definition of solid waste for used CRTs and CRT glass being recycled. However, we also solicited comment on the alternative approach of adding these materials to the universal waste rule. In particular, we requested comment on whether various universal waste requirements would be appropriate or burdensome for glass processors, or collectors who send used CRTs or CRT glass to these processors. The universal waste requirements in question were employee training, notification of universal waste management activities, and tracking of shipments sent and received. After evaluating all comments, the Agency has decided to retain the proposed conditional exclusion from the definition of solid waste for used CRTs and processed CRT glass, instead of adding these materials to the universal waste rule. Significant comments, our responses, and the rationale for the final rule are explained below.

Response to Comments Some states and many industry commenters ( such as those from the electronics industry) supported the proposed conditional exclusion and did not want EPA to add used CRTs to the universal waste rule. These commenters agreed with the Agency that used CRTs, when managed under the proposed conditions, resemble commodities more than wastes. They argued that adding CRTs to the universal waste scheme would harm the developing infrastructure for electronics recycling by imposing greater burdens and reducing flexibility. According to these commenters, classifying CRTs as hazardous waste would create a Astigma@ that would make retailers or collectors reluctant to participate in recycling programs. One state said that adding used CRTs to the universal waste rule would make virtually any business with computers or televisions a potential hazardous waste generator, with negative implications for program implementation and enforcement.

They also believed that the universal waste requirements mentioned above were unnecessary for used CRTs because these materials pose minimal environmental risks. A few commenters feared that glass processors could be classified as Adestination facilities@ which could need a RCRA storage permit, thereby frustrating CRT recycling goals. Finally, they questioned whether processed glass met the criteria for the universal waste rule because it is not Awidely generated.@ 29 However, other commenters, including several states, supported these requirements and suggested that EPA add used CRTs to the universal waste rule. These commenters generally noted that CRTs fit the regulatory criteria for universal waste at 40 CFR Part 273, and cited the familiarity of stakeholders with this rule. Some of these commenters argued that keeping CRTs within the universe of hazardous waste would ensure better oversight by regulatory authorities than would a conditional exclusion from the definition of solid waste.

One commenter pointed to the significant amounts of lead contained in many CRTs, and disputed the Agency= s assertion that leaded glass from CRTs resembled a commodity more than a waste. Some commenters believed that the universal waste rule would ensure more responsible management of such a potentially harmful substance. In particular, these commenters urged imposing the requirements in the universal waste rule for employee training, release response, packaging, labeling, notification, accumulation time limits, and weight limits. Some states were also concerned about speculative accumulation, and supported the one year accumulation limit for universal waste. Others preferred the universal waste requirements because 40 CFR § § 273.17 and 273.37 require universal waste handlers to contain all releases.

According to several commenters, the streamlined requirements of the universal waste rule would also encourage recycling. One commenter believed that adding CRTs to the universal waste rule would facilitate improved voluntary management of CRTs from households or CESQGs, since the universal waste rule specifically allows wastes from these sources to be managed as universal wastes.

After considering these comments, EPA has decided to finalize the proposed conditional exclusion from the definition of solid waste for CRTs and CRT glass being recycled. We agree with the commenters who pointed out that intact or broken CRTs largely fit the regulatory criteria for universal wastes ( see 40 CFR § 273.81). For example, they are frequently generated in a wide variety of settings and are present in significant volumes in the municipal wastestream. Commenters are also correct that stakeholders are familiar with the universal waste scheme, although they are also quite familiar with the concept of conditional exclusions. However, we disagree with the commenter who implied that the presence of lead in CRT glass prevents this material from being commodity like. As discussed elsewhere in this notice, there are demonstrated markets for CRTs and CRT glass, and it is generally the presence of lead that contributes to its value to glass manufacturers and smelters. An exclusion is more suitable for materials that resemble commodities more than wastes, especially if conditions are promulgated to ensure that they will be stored and handled as objects of value. In support of our decision, we note that many of the provisions of the conditional exclusion are similar to the provisions suggested by commenters, and recommended by the CSI for CRTs sent for recycling. For example, the packaging and labeling requirements for CRTs are nearly identical. In addition, we are also imposing notice and consent requirements for CRTs exported for recycling, as would be required under the universal waste rule.

Although some commenters believed that regulating CRTs sent for recycling under the universal waste program would ensure greater regulatory oversight, materials destined for the types of recycling addressed in today s rule do not need as much regulatory oversight as 30 other waste materials because, when handled consistently with the specified conditions, they are commodity like. Furthermore, the requirements of the universal waste rule for employee training, notification of waste management activities, and tracking and record retention for off site shipments are not necessary as a matter of federal law for these materials, when they are not being sent for disposal. The packaging and labeling conditions for broken CRTs that are promulgated today will ensure that the possibility of releases to the environment is very low. In addition, intact CRTs sent for recycling also pose a minimal risk of releases while being transported, since the glass is unlikely to be released unless the vacuum is broken. Lead from CRTs is therefore not readily available to the environment as long as the CRTs are intact. We also note that the universal waste rule distinguishes between large and small quantity handlers of universal waste, and imposes additional notification and tracking requirements on the former. But the weight limits which place handlers in the large quantity handler category ( 5000 kilograms or more) are not as appropriate for CRTs as for lighter materials such as lamps and batteries. The weight limits would place most handlers of CRTs in the large quantity category, even if they accumulated only a few CRT monitors.

Similarly, we note that under today s rule, the speculative accumulation requirements of 40 CFR § 261.1( c)( 8) apply to used CRTs ( whether broken or intact) and processed CRT glass. These provisions state that 75% of the CRTs or processed glass must be recycled or transferred to another site for recycling within a calendar year. If more time is needed, the facility in question may apply for a variance under 40 CFR § 260.31( a) ( see 40 CFR § 261.1( c)( 8)). Under the universal waste rule, materials may be accumulated for one year; additional time is available if the handler can demonstrate that such time is necessary to facilitate proper recovery, treatment, or disposal ( see 40 CFR § § 273.15 and 273.35). These requirements are generally similar, and the Agency believes that today s rule will be as effective in preventing extended accumulation periods as the accumulation limits of 40 CFR § § 273.15 and 273.35.

In addition, processed CRT glass sent for many kinds of recycling is commodity like. This material fits the criteria for the variance from the definition of solid waste for   partially reclaimed  materials under 40 CFR § § 260.30( c) and 261.31( c) ( see the discussion of this issue in the preamble to our proposal at 67 FR 40514). This variance is specifically designed for commodity like materials. We agree with the commenter who noted that processed glass does not actually fit the regulatory criteria for the universal waste rule ( because it is not widely generated by different types of facilities) and that glass processors might technically be considered destination facilities under the universal waste rule ( because they are recyclers).

Under the universal waste approach, CRTs destined for recycling would still be classified as hazardous wastes, although subject to reduced regulation. We agree with those commenters who argued that in the case of CRTs, this classification could discourage recycling. We are concerned that nonprofit organizations might refuse to help collect used CRTs because of this hazardous waste classification. Without their participation, CRT recycling would be greatly inhibited. 31 A few commenters also believed that adding CRTs to the universal waste rule would alleviate the need for our proposed distinctions between used and unused or intact and broken CRTs. The Agency does not agree with these commenters. Adding used CRTs to the universal waste rule would not eliminate the need for these distinctions. Unused, intact computers and televisions are often returned to the manufacturer, or they may be sold or donated for use. Long standing rules define unused materials as products rather than wastes, and products would not be subject to the universal waste rule. Similarly, even if intact and broken CRTs were added to the universal waste rule, the same universal waste requirements would not be appropriate for both categories of materials, since there is a greater possibility of releases from broken CRTs.

It is true that 40 CFR § § 273.17 and 273.37 require universal waste handlers to contain all releases. Under a conditional exclusion, on the other hand, if a person failed to respond to a release, EPA or the State could take action, including an enforcement action, which is a reactive rather than preventive measure. However, in the case of CRTs and CRT glass, the possibility of immediate environmental harm from a release is expected to be sufficiently low to be outweighed by the benefits from fostering increased recycling.

One commenter supported placing CRTs in the universal waste rule because the rule met EPA s objective in the proposed CRT rule of requiring storage in containers that convey the impression of value; further, the universal waste rule requires the use of RCRA quality containers. This commenter also believed that since the universal waste rule would leave CRTs within the definition of solid waste, this approach would allow State agencies to inspect facilities. According to this commenter, if the Agency did not recognize CRTs as wastes, States would not have the ability to evaluate and approve recycling facilities or inform the local community. In addition, placing CRTs in the universal waste rule would curtail accumulation time because solid and hazardous waste could only be stored at processing facilities for brief periods of time without a RCRA TSDF permit.

EPA disagrees with this commenter about the effects of the universal waste rule. The storage and packaging requirements in today s rule for broken CRTs are substantially similar to those found in 40 CFR Part 273 for universal wastes. State agencies are not precluded from inspecting facilities managing materials that are excluded from the definition of solid waste, in order to determine if the conditions of the exclusion are being met. Nor does today s rule affect States  ability to impose more stringent requirements on CRT glass processors. Finally, this commenter is incorrect about the necessity for issuing RCRA permits to CRT glass processors. Today s speculative accumulation requirements for CRTs are sufficient to prevent excessive warehousing or abandonment of these materials. Permits are not needed to accomplish this goal.

Another commenter suggested that if EPA adopted the universal waste approach for CRTs, the Agency should clarify that CRTs sent to a reseller are considered discarded ( and therefore regulated as wastes). EPA disagrees with this approach and does not believe that it would be desirable or necessary even under the universal waste rule. CRTs sent to resellers are often capable of being reused. For the reasons stated in the preamble, these materials are considered products rather than wastes. 32 One commenter complained that our proposed rule was structured such that the least regulatory burden is incurred by the person who takes advantage of the exclusion in proposed 40 CFR § 261.4( a)( 23)( i)( i. e., the person who chooses to do nothing with the waste, according to the commenter), rather than the person who chooses to recycle the waste pursuant to 40 CFR § 261.4( a)( 23)( ii). This commenter has misunderstood these two proposed provisions. Both of the two provisions apply to CRTs sent for recycling. The first applies to used, intact CRTs, the second to used, broken CRTs. Used, intact CRTs sent for recycling are subject to no conditions for packaging and labeling ( unlike used, broken CRTs) because the CRT glass is enclosed within its housing and the possibilities for release are less. And used, intact CRTs intended for reuse were considered products before this rule, which does not affect their status. The commenter is therefore incorrect in saying that our proposed regulations reward people who do not recycle CRTs. The same commenter expressed concern about our proposed quantity accumulation limits for CRTs. Again, the commenter is mistaken; the Agency did not propose any limits on the quantity of CRTs that can be accumulated.

Some commenters urged us to adopt the universal waste approach because, unlike the conditional exclusion approach, it does not require use of the hazardous waste manifest for materials sent to disposal. These commenters wanted this benefit for CRTs sent to disposal; one commenter stated that having similar requirements for recycling and disposal reduces complications for enforcement authorities by eliminating the need to discern the waste handler= s intent. Other commenters, however, argued that used CRTs should be fully regulated when sent for disposal, and that such full regulation was necessary to protect human health and the environment.

Even though requiring no manifest for CRTs could simplify the regulations, we believe that today s conditional exclusion will foster the equally important goal of collecting CRTs, conserving resources, and minimizing negative impacts on the environment. We anticipate that it will lead to increased recycling and less disposal of CRTs, including those from households and CESQGs, because municipalities and other entities can consolidate CRTs from all sources more easily than if some CRTs were classified as hazardous wastes. In addition, as described earlier in this notice, the Agency and many states are engaged in several efforts to increase the rate of CRT and electronics recycling, including electronics from households and CESQGs. We believe that these efforts, as well as many others at the state and local level, will ultimately bring about a considerable improvement in the rate of voluntary electronics recycling.

One commenter stated that removing CRTs from the category of characteristic hazardous wastes could encourage disposal and could have a chilling effect on States which are considering prohibitions on any CRTs going to landfills or incinerators. This commenter therefore recommended that our final rule contain a strong disposal ban and a manifest system. In response, we note that today s rule does not change the regulatory classification of CRTs being sent to landfills or incinerators; under federal law, CRTs being disposed of are still fully regulated under Subtitle C unless they come from households or conditionally exempt small quantity generators ( CESQGs). The Agency believes that streamlining requirements for recycling but not for disposal will encourage recycling. 33 With respect to disposal, materials sent to landfills or incinerators under the universal waste rule need not be accompanied by a hazardous waste manifest. Under our proposed conditional exclusion, the manifest would have to accompany CRTs sent for disposal. A few states said the universal waste rule was therefore less stringent ( in this respect) than a conditional exclusion. These states were therefore concerned that if a state had already added CRTs to its universal waste program, it would have to amend its rules and seek authorization from EPA to remain equivalent to the federal program. This conclusion is incorrect. The Agency has concluded that adding CRTs to a state universal waste program is permissible under state authorization rules. As commenters pointed out, the universal waste rule is in other respects more stringent than today= s conditional exclusion. In addition, the Agency s longstanding position is that under a state universal waste program, individual wastes and management standards are not subject to the authorization revision provisions in 40 CFR § 271.21, since the state is already authorized for the universal waste regulations and the regulation of hazardous wastes ( see the preamble to the universal waste rule at 60 FR 25537, May 11, 1995). Therefore, states are free to add CRTs to their universal waste programs without seeking authorization from EPA.

A few commenters said that if EPA adopted a conditional exclusion approach, it should be an exclusion for CRTs from the definition of hazardous waste rather than solid waste. Another commenter suggested that the Agency should prepare a cost analysis which examined the effects of excluding CRTs from the definition of hazardous waste. However, this approach was not proposed and is therefore outside the scope of this rulemaking.

F. Definitions Several commenters suggested changes to some of EPA s proposed definitions. The following is a summary of these suggested changes, with our responses.

  Cathode Ray Tube

The Agency= s proposed definition of Acathode ray tube@ was a Avacuum tube, composed primarily of glass, which is the video display component of a television or computer monitor.@ Some commenters said that our proposed definition of Acathode ray tube@ did not make clear whether we intended to include such devices as scanning equipment, multichannel analyzers, medical, automotive, oscilloscope, military, aircraft, and appliance CRTs. These commenters apparently believed that these types of CRTs did not fall within the definition of a television or computer monitor. One commenter said that the use of the term Avideo display@ was misleading, since that phrase is associated with television monitors. This commenter suggested that Avideo or visual display component@ would be a better definition. Another commenter suggested that EPA confine the regulatory definition to color CRTs, since monochrome CRTs generally do not exhibit the toxicity characteristic for lead.

The Agency agrees with those commenters who desired a more general definition that would encompass various types of CRTs; we believe that such a definition would provide more clarity to the regulated community and would better reflect the intent of our proposal ( see 67 FR 40509). We also agree with the commenter who said that   video or visual 34 display component  would be a more precise definition. For these reasons, we are changing our proposed definition of Acathode ray tube@ in 40 CFR § 260.10 to read as follows: Acathode ray tube means a vacuum tube, composed primarily of glass, which is the video or visual display component of an electronic device.@ This definition would encompass all the different types of CRTs mentioned by the commenters.

The Agency does not agree with the commenter who suggested that the definition of   cathode ray tube  be limited to color CRTs, since we are not certain that all color CRTs exhibit the toxicity characteristic for lead, or that no monochrome CRTs exhibit this characteristic. For this reason, we are not revising our proposed definition to include a reference to color or monochrome CRTs. If CRTs do not exhibit the toxicity characteristic for lead, they are not regulated under any of the hazardous waste regulations, including the exclusion promulgated today.

  Intact  and   Broken  CRTs In our proposal, EPA had defined an Aintact@ CRT as one remaining within the monitor whose vacuum has not been released. A Abroken@ CRT, on the other hand, was defined as Aglass removed from the monitor after the vacuum has been released.@ Some commenters pointed out that our proposed definitions did not take into account two categories of CRTs: those removed from a monitor without release of the vacuum ( i. e.,   bare  CRTs) or CRTs remaining within the monitor after being inadvertently broken.

A few commenters believed that intact CRTs removed from the monitor were commodity like, and should therefore be completely excluded from the definition of solid waste, especially since they presented very little potential for environmental releases. One commenter suggested that the definition of   used, intact  CRT should therefore be changed to read   any CRT that does not qualify as a broken CRT . However, another commenter suggested that intact CRTs removed from the monitor should be treated the same as broken CRTs.

After reviewing the comments, the Agency agrees that its proposed definitions did not adequately address at least one category of CRTs. With respect to intact CRTs that are removed from the monitor with the vacuum still unbroken, we understand that these materials must normally be packaged before being shipped for repair or reuse. It would therefore be unnecessary and redundant to subject these materials to the same conditions as broken CRTs sent for recycling. They resemble products more than wastes because they can be reused in other monitors. In today= s rule, therefore, we are clarifying the status of these materials by including them within the definition of Aintact CRT,@ and we are revising that definition to read: Aan intact CRT means a CRT whose vacuum has not been released.@ We believe this definition is more clear and gives more guidance to the regulated community than one which merely cross references the definition of broken CRTs.

As stated above, some commenters stated that the proposed rule did not address broken CRTs remaining within a monitor because of inadvertent breaking of the glass. Another commenter pointed out that his company considered CRTs with released vacuum tubes to be intact because they have not been mechanically altered so as to increase the potential 35 release of heavy metals. In response, the Agency is not changing the definition of   broken CRT  to specifically address inadvertently broken CRTs, since such breakage is accidental and does not occur routinely. If some CRTs within a shipment of intact CRTs are accidentally broken, such occurrences are most appropriately addressed on a case by case basis by the appropriate regulatory authorities. A released vacuum facilitates glass breakage and makes subsequent environmental releases more likely, even if these materials have not been substantially altered mechanically.

One commenter suggested that the definition of   broken CRT  should refer to glass removed from any   housing  or   casing  rather than glass removed from a   monitor . The Agency agrees that the language suggested by the commenter is more descriptive. The same commenter noted that our proposed definition assumed that CRT vacuums are released before the CRT is removed from the monitor, whereas in actuality the CRT is sometimes removed from the monitor, after which the vacuum is released. EPA agrees with the commenter that our intent was not to draw distinctions based on the timing of the vacuum release. We have therefore revised our proposed definition of   broken CRT  to read:   glass removed from its housing or casing whose vacuum has been released.

One commenter noted that EPA did not present data showing that a CRT is not reusable as a product after the vacuum has been released and the glass removed. A few commenters suggested that EPA revise its definition of Abroken CRT@ to refer to CRTs that were no longer reusable, or to specify that CRTs become wastes when they will no longer be used for the purpose for which they were manufactured. In response to these comments, we note that the Agency specifically requested comment in the preamble to our proposed rule about whether it was possible to repair and reuse a CRT after the vacuum was released. No commenters submitted information or explanations about how this phenomenon might occur. We also believe that it would be much more difficult to implement the definition if regulators or the regulated community were required to ascertain whether a computer, television, or other electronic device could be used again. Such a determination would require considerably more technical expertise than merely examining a CRT to see if the vacuum had been released. Therefore, under today= s rule, a CRT will still be considered broken if the vacuum is released.

One commenter suggested that we should change the definitions of Aintact@ and Abroken@ CRTs in proposed 40 CFR ' 260.10 to read Aused, intact CRTs  and Aused, broken CRTs@ ( presumably to be consistent with the language in our proposed exclusions). EPA agrees and has added this language to the definitions in today= s final rule.

A few commenters objected to the Agency= s regulatory distinctions between Aunused  and Aused@ or Aintact  and Abroken@ CRTs. These commenters believed that most CRTs in all of these categories should be treated the same ( presumably because the environmental risks were similar). One commenter suggested abandoning the definition of   broken CRT  altogether and dividing the universe of CRT materials into two categories. The first category would include all waste CRT containing devices and intact CRTs removed from CRT containing devices. The second category would include glass removed from the first category of devices. This commenter also suggested different management standards for the two categories, but did not clarify how the management standards would differ. We are 36 therefore unable to respond effectively to this suggestion. The same commenter said that our definitional concepts were irrelevant to the breakage of glass. The Agency s intent was to distinguish between wastes and non wastes, and to promulgate management standards for the latter.

Although classifying all CRTs in the same regulatory category would undoubtedly lead to simplified program implementation, EPA does not believe that eliminating our proposed distinctions is desirable. Intact CRTs present very little risk of releases, unless they are accumulated for long periods of time; therefore, subjecting them to the same conditions as broken CRTs is not appropriate.

Another commenter expressed concern that our proposed definition of   broken CRT  ( glass removed from the monitor) might preclude an exclusion for mixtures of glass, plastic, and copper sent to copper smelters. This was not the Agency s intent. Materials sent to copper smelters ( if otherwise a hazardous waste) could be excluded, if appropriate, on a case by case basis under 40 CFR 261.2( e)( 1)( i) or ( ii).

  CRT Processing

EPA received several comments on the proposed definition of ACRT processing.  Specifically, the proposed regulation stated that CRT processing meant conducting all of the following activities: ( 1) receiving broken or intact CRTs; ( 2) intentionally breaking intact CRTs, or further breaking or separating broken CRTs; ( 3) sorting or otherwise managing glass removed from CRT monitors; and ( 4) cleaning coatings off the glass removed from CRTs. Some commenters believed that it was not necessary to perform all of these activities in order to be considered a CRT processor. In particular, commenters pointed out that some CRT recyclers do not clean coatings from CRT glass, and that there is an increased market for glass with the coating still on it. These commenters recommended that the definition of ACRT processing@ be revised to specify that performing the first three activities listed above, or cleaning coatings from glass removed from CRTs, should be sufficient to classify a person or facility as a CRT processor.

EPA agrees with these commenters. As one commenter stated, coatings do not have to be removed from CRT glass sent to a smelter. We are therefore revising our proposed definition of ACRT processing@ to mean conducting all of the following activities: ( 1) receiving broken or intact CRTs; and ( 2) intentionally breaking intact CRTs or further breaking or separating broken CRTs; and ( 3) sorting or otherwise managing glass removed from CRT monitors. Since any CRT recycler cleaning coatings from CRT glass would necessarily be performing the first three activities, we believe it is unnecessary to refer to such cleaning in the regulations. This revised definition will be more consistent with the current activities of CRT recyclers.

One commenter said that our proposed definition of   CRT processing  included   receiving CRTs , thereby implying that CRT processing could occur only off site. We assume this commenter meant to say that sometimes original users of CRTs also perform glass processing. However, EPA has no data to indicate that such is the case. 37   Processed CRT Glass

In our proposal, we did not include a definition of Aprocessed CRT glass.@ One commenter noted that if EPA revised its definition of ACRT processing@ to remove the reference to coating, the Agency should then promulgate a definition of Aprocessed CRT glass@ that would ensure that only CRT glass with the coatings removed would be subject to the requirements of proposed 40 CFR ' 261.39( c) ( i. e., no packaging or labeling for the processed glass). This commenter believed that only glass with the coating removed could properly be considered commodity like. EPA disagrees with this suggestion, because we believe that whether CRT glass is coated or uncoated has little to do with whether the glass resembles a commodity. As stated above, CRT glass sent to smelters does not need to have coatings removed, and we believe that such materials are commodity like. We believe that the destination of the glass is a more reliable indicator of its nature as a commodity than its coated or uncoated condition.

  CRT Glass Manufacturing

Finally, one commenter pointed out that our proposed definition of ACRT glass manufacturing facility@ could cause confusion because 40 CFR ' 260.10 defines a Afacility@ as Aland, etc. used for treating, storing, and disposing of hazardous waste,  which is not true of CRT glass manufacturers. The Agency agrees with this commenter that the use of the word Afacility@ could be misinterpreted. We have therefore changed the definition in today= s rule to read: ACRT glass manufacturer means an operation or part of an operation that uses a furnace to manufacture CRT glass.@

G. Disposal of CRTs In the preamble to our proposed rule, EPA solicited comment on whether to allow CRTs sent for disposal in hazardous waste facilities ( i. e., landfills or incinerators) to comply with streamlined packaging and labeling requirements similar to the ones we proposed for broken CRTs sent for recycling, rather than comply with full Subtitle C requirements, including use of the hazardous waste manifest.

Some commenters said that disposal of CRTs should be subject to streamlined requirements similar to those applicable to broken CRTs sent for recycling. These commenters generally believed that CRTs presented very low environmental risks, even in landfills. They cited what they believed to be the benefits of simplified program implementation ( presumably including facilitation of inspections and enforcement) if CRTs sent for recycling and disposal were subject to the same regulatory requirements. Other commenters supported the application of full Subtitle C requirements to CRTs sent for disposal. These commenters believed that CRTs sent for disposal presented greater environmental risks; they also supported this approach because they believed it would encourage recycling. 38 After evaluating these comments, the Agency has concluded that the arguments for streamlining requirements for CRTs sent for disposal do not appear to be justified. As noted by some commenters, the volume of these materials will increase in future years because of evolving computer and television technology. EPA does not necessarily agree with those commenters who said that CRTs invariably present very low environmental risks, even in landfills. We have not conducted a separate analysis of disposal issues as part of this rulemaking. In addition, we wish to encourage the environmentally sound recycling of this rapidly growing wastestream to conserve resources and raw materials, and we do not want to promulgate regulations that are inconsistent with this policy. For this reason, we are not extending our proposed conditional exclusion to CRTs sent for disposal.