Liability for the Mismanagement of CRTs and E-Waste

Transcription

1 Liability for the Mismanagement of CRTs and E-Waste ITI Spring Conference Kaitlyn Day Shannon March 14, 2018

2 Why Are We Talking About this Issue? 2

3 Why Are We Talking About this Issue? * 3

4 Why Are We Talking About this Issue? Tsunami of CRT glass It is estimated that there are nearly 7 million tons of CRT devices that will require management by 2033 No market for recycled CRTs * 2016; CRT_Responsible-Mgmt.pdf 4

5 Overview Federal laws regulating the handling of CRTs or liability from handling CRTs Resource Conservation and Recovery Act (RCRA) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) California state law Common law - nuisance Minimize potential exposure for original equipment manufacturers (OEMs) 5

6 RCRA: Solid & Hazardous Waste What is solid waste? What is hazardous waste? Cradle-to-grave regulation for hazardous waste E-waste may be hazardous waste Lead? Mercury? * 6

7 RCRA & CRTs CRTs may be excluded from definition of solid waste Used, intact CRTs Used, broken CRTs Processed CRT glass Recycling CRTs; speculatively accumulated Used, intact CRTs are not solid wastes unless they are speculatively accumulated Accumulated before recycling Potentially recyclable and feasibly can be recycled; 75% recycled within a calendar year 7

8 RCRA, Imminent & Substantial Endangerment Imminent and substantial endangerment who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. Contribute has been interpreted broadly Private right of action Joint and several liability 8

9 Have OEMs Contributed to an Imminent and Substantial Endangerment? Recycling facility is operating, but reasons to suspect the facility will not be managing CRTs appropriately: Closed Loop never constructed its furnace Could OEMs contribute to an imminent and substantial endangerment? Language in contract directing disposal? Funding? Degree of control a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient. Hinds Investments, L.P. v. Angioli, 654 F.3d 846, 852 (9th Cir. 2011). 9

10 CERCLA Liability triggered if: Hazardous substances are present at a facility; There is a release (or a possibility of a release) of the hazardous substances; Response costs have been or will be incurred; and The defendant is a potentially liable party Possible joint and several liability Potentially responsible parties (PRPs): Owner or operator Arranger Transporter 10

11 Arranger Liability Arranger liability: any person who by contract, agreement, or otherwise arranged for disposal of hazardous substances owned or possessed by such person" Incorporates an intent requirement Transporter liability: accepts or accepted any hazardous substances for transport to disposal or treatment facilities from which there is a release 11

12 OEMs as Arrangers Arranger liability: Intent to dispose Use of a common carrier to transport materials Was there an intent that the product be disposed? Owned or possessed the waste? 12

13 OEMs as Arrangers Some states require OEMs to fund e-waste recycling programs California s Covered Electronic Recycling Program Contracts with registered collectors or recyclers not with OEMs 13

14 California & CRTs California s HSAA California s E-Waste Recycling Program Enforcement Order against Greenview Resource Management Inc. related to Dow Management E-waste handlers are required to ensure that CRTs are recycled or disposed as required by this section 14

15 Determination of Hazardous Waste Once a hazardous waste regulated like a hazardous waste Home Depot: $27 million settlement FedEx: $3.4 million settlement AT&T: $24 million settlement DirecTV: $8.9 million 15

16 California & CRTs CRT emergency regulation: 2012 Alternative daily cover (ADC) for landfills if conditions met: CRT must be handled in a manner that is protective of human health and the environment; Funnel glass, which contains high amounts of lead, must be sent to a hazardous waste landfill; Panel glass, which contains lower amounts of lead, may be sent to a solid waste landfill if testing the waste shows there is no risk of lead leaching out into the environment Emergency regulation re-adopted in 2014,

17 Common Law Public or private nuisance West Coast trend Private parties or governments could bring suit Causes of action included in at least one CRT case filed in California federal court Ream Holdings, LLC v. 3R International Group, Inc., et al. Abatement Payment into a common fund 17

18 Mitigating RCRA & CERCLA Liability Hands off CERCLA: Not an owner, operator, arranger, or transporter RCRA: Degree of control Due diligence on vendors Requires vendors to agree to fully comply with all applicable laws regarding storage, handling and use of hazardous substances Indemnifications only as meaningful as vendors ability to pay Contract language 18

19 Questions?

20 Thank you! Kaitlyn Day Shannon Associate San Francisco Environmental Litigation This presentation is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your circumstances. This presentation may be considered lawyer advertising under applicable laws regarding electronic communications. 20