Section 262.53 is titled “Notification of Intent to Export” and, in part, requires that a

1

“primary exporter” of “hazardous waste” notify the EPA of an intended export at least 60 days

before the waste is shipped off-site.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Criminal Case No. 11-cr-00376-WJM

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. EXECUTIVE RECYCLING, INC.,

2. BRANDON RICHTER, and

3. TOR OLSON,

Defendants.

________________________________________________________________________

ORDER REGARDING JURY INSTRUCTIONS FOR COUNTS 14 AND 15

On September 15, 2011, the Grand Jury returned an Indictment charging the

Defendants, in relevant part, with the following: 

Count 14

 42 U.S.C. § 6928(d)(4)

On or about April 5, 2008 in the State and District of

Colorado and elsewhere, the Defendants ER, Brandon

Richter, and Tor Olson knowingly exported and caused to be

exported hazardous waste, namely CRTs which exhibited

the characteristic of toxicity for lead, in a shipping container

labeled GATU 8815610, and in connection with that export

failed to file a Notification of Intent to Export with the United

States Environmental Protection Agency as required under 6

C.C.R. 1007-3 § 262.53. 

1

All in violation of Title 42, United States Code,

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 1 of 23
 Section 6928(d)(4) makes it a crime to, amongst other things, knowingly transport,

2

dispose of, or export “any hazardous waste” and to knowingly fail to maintain or file any

documents required to be maintained or filed by state regulation.

 18 U.S.C. § 2 prohibits “aiding and abetting” a criminal act.

3

 Section 6928(d)(6) makes it a crime to knowingly export a “hazardous waste” without 4

the consent of the receiving country.

 18 U.S.C. § 554 makes it a crime to knowingly export anything from the United States 5

in a manner that is contrary to United States law or regulation.

-2-

Section 6928(d)(4) , and Title 18, United States Code, 2

Section 2 .

3

Count 15

18 U.S.C. § 554

Between on or about March 13, 2008 and April 5,

2008, in the State and District of Colorado and elsewhere,

the defendants ER, Brandon Richter, and Tor Olson

knowingly and fraudulently facilitated the transportation,

concealment and sale of merchandise, articles, and objects,

to wit, CRTs, prior to exportation, knowing that such CRTs

were intended for exportation contrary to any law and

regulation of the United States, specifically, 42 U.S.C. §

6928(d)(4) and 42 U.S.C. § 6928(d)(6) . 

4

All in violation of Title 18, United States Code,

Section 554 .

5

(ECF No. 1.) The case is set for a thirteen day jury trial beginning on December 3,

2012. (ECF No. 139.) In accordance with the Court’s October 17, 2012 Order, the

parties filed proposed jury instructions on November 13, 2012 and objections to the

opposing parties’ proposed jury instructions on November 19, 2012. (ECF No. 161.) 

After reviewing the parties’ proposed jury instructions, the Court ordered further

briefing with respect to the jury instructions that would govern the jury’s determination of

whether the materials at issue here were hazardous waste and set oral argument on

this issue. (ECF No. 200.) On November 27, 2012, the Court held argument on these

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 2 of 23
 The Court notes that Stipulated Instructions 18 & 20 also relate to Counts 14 and 15. 

6

The Court’s final set of instructions will likely include some version of those Stipulated

Instructions 18 & 20 but the Court will not discuss such instructions in this Order as they are not

directly relevant to the issues at hand.

-3-

instructions, and Defendants’ related Motion to Dismiss Counts 14 and 15. (ECF No.

224.) After considering the proposed instructions, the subsequent briefing, and the

parties’ oral argument, the Court has decided how it will instruct the jury on the

definition of hazardous waste and its components. The Court’s rationale underlying this

decision, as well as the instructions it will read to the jury after the close of the

evidence, follow.

I. RELEVANT PROPOSED JURY INSTRUCTIONS

To provide context for the remainder of the Order, the Court will first recite the

parties’ proposed jury instructions.

A. Stipulated

The parties have stipulated to the following instructions :

6

STIPULATED INSTRUCTION NO. 19

Characteristic of Toxicity

Characteristic hazardous wastes are wastes that are

hazardous because they exhibit one or more of the

hazardous characteristics identified in the regulations, such

as toxicity. A solid waste is a hazardous waste exhibiting the

characteristic of toxicity if, using the Toxicity Characteristic

Leaching Procedure (TCLP”), Test Method, the extract

from a representative sample of the waste contains lead at a

concentration equal to or in excess of 5.0 milligrams per liter.

A “representative sample” is a sample of a universe

or whole (e.g., a waste pile, lagoon, groundwater) which can

be expected to exhibit the average properties of the universe

or whole.

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 3 of 23
 This instruction was originally proposed as Defendants’ Disputed Instruction M. 

7

However, in its Objections to Defendants’ Disputed Instructions, the Government stated that it

would not oppose Instruction M if the Court included the following phrase: “‘Cathode Ray Tubes

(CRTs)’ are vacuum tubes, made primarily of glass, which constitute the video display

components of televisions and computer monitors.” At oral argument, Defendants stated on the

record that they had no opposition to the addition of the Government’s requested language.

Accordingly, the Court has added the definition of CRT proposed by the Government and

considers Instruction M to be stipulated.

-4-

STIPULATED INSTRUCTION M

7

Definition of Electronic Device and 

Electronic Component

“Electronic Device” means electronic equipment that

contains one or more electronic circuit boards or other

complex circuitry, including but not limited to computer

monitors, televisions, central processing units (CPUs),

laptops, printers, terminals, mainframes and stereo

equipment.

“Electronic Component” means components,

subassemblies or other parts derived from the disassembly

of electronic devices.

“Cathode Ray Tubes (CRTs)” are vacuum tubes,

made primarily of glass, which constitute the video display

components of televisions and computer monitors.

A computer monitor is an electronic device.

A CRT is an electronic component.

(ECF No. 172.)

B. Disputed Instructions

The relevant disputed jury instructions proposed by each party are as follows:

1. Government

The Government incorporated all of its proposed instructions regarding the waste

determination into one instruction:

DISPUTED INSTRUCTION NO. 5

Definition of Terms Relevant to “Hazardous Waste”

The government is required to prove that the material

charged in Counts 14 and 15 was a hazardous waste. The

term “hazardous waste,” for purposes of Counts 14 and 15

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 4 of 23
-5-

means a solid waste that exhibits the hazardous

characteristic of “toxicity” as defined in the following

instruction. Therefore, before you can conclude that the

CRTs were “hazardous waste” you must first find that the

CRTs are a solid waste.

A solid waste is defined as any garbage, refuse, or

other discarded material.

A material is discarded if it is 1) abandoned, or 2)

recycled.

A material is abandoned if it is disposed of, or if it is

accumulated, stored or

treated (but not recycled) before or instead of being

disposed.

A material is recycled if it is sent for reclamation, or

accumulated or stored

before reclamation.

A material is reclaimed if it is processed to recover a

useable product, or if it is regenerated.

The intended use of the material may determine

whether it is a waste or a product. For post-consumer

electronics to be considered products and not waste, they

must have reuse and/or resale value for their original

intended purpose. Examples include a computer monitor

that is resold for continued use as a monitor. You may

consider all the evidence in the case in order to determine

whether the defendants intended to discard the CRT’s.

(ECF No. 178 at 12-13.)

2. Defendants

Defendants have submitted joint disputed instructions and propose that the jury’s

waste determination be controlled by the following three instructions:

DEFENDANTS’ INSTRUCTION L

Under controlling environmental regulations,

electronic devices and electronic components may or may

not be classified as waste depending on the factors set forth

in Instruction N. If you determine that the used electronics in

this case classified as waste, then you must decide whether

the defendants’ management of those electronics satisfied

the waste management regulations discussed later in these

instructions.

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 5 of 23
-6-

If you determine that the electronics at issue in this

case did not classify as waste, then those environmental

regulations do not apply to the defendants’ conduct and you

must find the defendants not guilty on count 14.

DEFENDANTS’ AMENDED INSTRUCTION N

The controlling environmental regulations do not

apply to persons managing used electronic devices and

electronic components that are not yet wastes. In

determining whether a used electronic device or a used

electronic component has become a waste, you are

instructed that:

(1) A used electronic device destined for recycling

becomes a waste on the date the recycler determines

that the device cannot be resold, donated, repaired,

or refurbished; or determines that he cannot directly

reuse or resell useable parts from the device; and

(2) An electronic component becomes a waste on the

date the recycler determines that the component

cannot be resold, donated, repaired, or refurbished;

or determines that he cannot directly reuse the

component.

If a used electronic device or electronic component is not

waste, it cannot be hazardous waste.

DEFENDANTS’ INSTRUCTION O

If you determine that the used electronics at issue in

this case classified as waste, you must then determine

whether they constituted “hazardous waste.” A waste is

hazardous waste if it has no commercial use or value and it

exhibits any of the characteristics of hazardous waste,

including ignitability, corrosivity, reactivity, or toxicity.

(ECF No. 177 at 17, 20; 179 at 3.)

II. RELEVANT STATUTES AND REGULATIONS

The Resource Conservation and Recovery Act (“RCRA”) enlists the states and

municipalities to participate in a “cooperative effort” with the federal government to

develop waste management practices that facilitate the recovery of “valuable materials

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 6 of 23
-7-

and energy from solid waste.” 42 U.S.C. § 6902(a)(11). A state can apply to the

Environmental Protection Agency (“EPA”) “for authorization to administer and enforce

its own hazardous waste program [so long as] its program is equivalent to the federal

program and provides adequate enforcement.” United States v. Power Eng’g Co., 303

F.3d 1232, 1236 (10th Cir. 2002); see also 42 U.S.C. § 6926(b). A state program

authorized pursuant to RCRA operates “in lieu of” the federal program. 42 U.S.C. §

6926(b). An authorized state may adopt restrictions that are more stringent than the

federal regulations but are precluded from adopting regulations that are less stringent. 

See 42 U.S.C. § 6929; Old Bridge Chemicals v. New Jersey Dep’t of Environmental

Protection, 965 F.2d 1287 (3d Cir. 1992) (RCRA sets a “floor” that no state regulation

may fall below).

Colorado has enacted its own hazardous waste program, see Colorado

Hazardous Waste Management Act (“CHWMA”), Colo. Rev. Stat. §§ 25-15-301 to -327,

and in 1984, the EPA authorized Colorado “to operate its hazardous waste program in

lieu of the federal program,” 49 Fed. Reg. 41,036 (Oct. 19, 1984). See also United

States v. Colorado, 990 F.2d 1565, 1571 (10th Cir. 1993). Colorado’s program has

been explicitly reauthorized a number of times, most recently on November 21, 2012. 

See 77 Fed. Reg. 69765 (November 21, 2012). Colorado Department of Public Health

and Environment (“CDPHE”) administers Colorado’s hazardous waste management

program. The relevant portions of the Colorado regulatory scheme are structured as

follows. 

In Count 14, Defendants are charged with a violation of 6 C.C.R. § 1007-

3:262.53, which requires a “primary exporter” of “hazardous waste” to notify the EPA at

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 7 of 23
-8-

least 60 days before the hazardous waste is scheduled to leave the United States. 

Under the Colorado regulatory scheme, an electronic device or component can be

considered a “hazardous waste” under at least two provisions: (1) Part 261:

Identification and Listing of Hazardous Waste, 6 C.C.R. § 1007-3:261 et seq. (“Part

261"); and (2) Part 273: Standards for Universal Waste Management, 6 C.C.R. § 1007-

3:273 et seq. (“Part 273"). 

Part 261 “identifies those solid wastes which are subject to regulation as

hazardous wastes” under Parts 262-268 (including Part 262.53). Part 261 defines a

“hazardous waste” as any “solid waste” that “has no commercial value” and “exhibits

any of the characteristics of hazardous waste identified in Subpart C of this part.” 6

C.C.R. § 1007-3:261.3(a). A “solid waste” is defined in this section as “any discarded

material” that does not fall within certain exceptions. 6 C.C.R. § 1007-3:261.2(a)(1).

“Discarded material” is then defined as “any material which is: (i) Abandoned . . . ; (ii)

Recycled . . . ; or (iii) Considered inherently waste-like.” Id. at 261.2(b)(1)-(3). Part 261

then defines “abandoned”, “recycled”, and “inherently waste-like.” 

The definition of “solid waste” in Part 261 is nearly identical to how “solid waste”

in defined in the federal regulations implementing RCRA. See 40 C.F.R. § 261.2. The

Government’s Disputed Instruction 5, for the most part, tracks Part 261. Defendants

also include aspects of Part 261 in their Disputed Instructions. (ECF No. 178 at 12-13.) 

Specifically, Defendants Instruction O incorporates the definition of “hazardous waste”

from Part 261. (ECF No. 177 at 20.)

Defendants’ Disputed Instruction N relies on Part 273. “The Part 273 Universal

Waste Regulations provide an alternate set of management standards that a generator

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 8 of 23
-9-

can choose to follow in lieu of regulation under Parts 200 through 268.” 6 C.C.R. §

1007-3:273.1. Part 273 applies to six categories of materials, one of which is

“electronic devices and electronic components.” Id.; see also 6 C.C.R. § 1007-

3:261.9(a)(6). Part 273(f) states that “[a]n electronic device or electronic component is

a hazardous waste if it exhibits one or more of the characteristics identified in Part 261,

Subpart C.” Under Part 273(f), an electronic device or electronic component can

become a waste four ways: 

(i) A used electronic device destined for disposal becomes a

waste on the date it is discarded.

(ii) A used electronic devices destined for recycling becomes

a waste on the date the recycler determines that the device

cannot be resold, donated, repaired, or refurbished, or

determines that he/she cannot directly reuse or sell useable

parts from the device.

(iii) An electronic component becomes a waste on the date

the recycler determines that the component cannot be

resold, donated, repaired, or refurbished, or determines that

he/she cannot directly reuse the component.

(iv) An unused electronic device becomes a waste on the

date the handler decides to discard it.

6 C.C.R. § 1007-3:273.2(f)(3).

 

III. ANALYSIS

To convict Defendants on Counts 14 and 15, the parties agree that the jury must

first determine that the materials at issue in this case were “hazardous waste”. To

constitute hazardous waste, the jury must first find that the materials were “waste”. 

Thus, in the discussion below, the Court will explain the rationale underlying its

instructions on these issues. 

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 9 of 23
-10-

A. Instructions Guiding the Determination of Whether the CRTs at Issue in

this Case were “Waste”

The first issue that the jury must decide is whether the electronic devices and

components at issue in this case were “waste”. With respect to this issue, the parties

dispute: (1) whether the fact that this case involves exportation of electronic materials to

another country means that the Court must apply federal law rather than Colorado law;

(2) if Colorado law applies, whether the waste determination is governed by Part 261 or

Part 273 of the Colorado regulations; and (3) if Part 273 applies, the role that a 2004

Memoradum issued by CDPHE should play in the Court’s instructions. The Court will

address each of these issues below.

1. Whether Federal law or Colorado law applies

The Government argues that, because the charges in Counts 14 and 15 relate to

international exports of hazardous waste, Federal regulations implementing RCRA

apply rather than Colorado’s regulations. In support of this argument, the Government

relies on the following EPA statement which appears in a proposed amendment to a

rule that governs certain imports and exports of hazardous waste: 

B. Effect on State Authorization

Because of the Federal government's special role in matters

of foreign policy, EPA cannot authorize States to administer

Federal import/export functions in any section of the RCRA

hazardous waste regulations. This promotes national

coordination, uniformity and the expeditious transmission of

information between the United States and foreign countries.

Although States do not receive authorization to administer

the Federal government's functions in subparts E or F, in

accordance with 271.10, the State program must include

requirements respecting international shipments equivalent

to those at subparts E and F. States are also not authorized

to administer the Federal government's functions in subpart

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 10 of 23
-11-

H, but in this case, States are not required to adopt those

provisions.

See 73 Fed. Reg. 58388 (October 6, 2008). 

The key here is whether a state is “administering” Federal import/export

functions by having its regulations define what constitutes a hazardous waste. The law

is clear, under both Federal and Colorado regulations, that all permits for exportation

and notices regarding exportation are required to be issued by the Federal

Government. Thus, there is no dispute that Colorado is not “administering”

import/export functions in the sense that it is not the entity tasked with issuing export

permits or receiving export notices.

However, the fact that export permits must be issued by the Federal government

does not mean that Federal regulations must define what constitutes a hazardous

waste. RCRA explicitly provides that an authorized state program operates “in lieu of”

the federal program. 42 U.S.C. § 6926(b). The Supreme Court has described the

relationship between the federal government and an authorized state as follows: “RCRA

regulates the disposal of hazardous waste in much the same way [as the Clean Water

Act], with a permit program run by EPA but subject to displacement by an adequate

state counterpart.” U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 611 (1992) (emphasis

added). A Memorandum authored by EPA’s enforcement counsel stated: “When EPA

authorizes a [state] hazardous waste management program . . . the state program

becomes the RCRA program in that state . . . . In other words, the only hazardous

waste program in effect in that state is the state program, and the state laws and

regulations are those which must be enforced by EPA should federal enforcement

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 11 of 23
-12-

action be necessary.” (ECF No. 211-2.) 

The fact that courts broadly state that federal regulations are “displaced” or

“supplanted” by state regulations when a state becomes “authorized” under RCRA

means that the relevant regulations for this case are the Colorado regulations. See

United States v. Elias, 269 F.3d 1003 (9th Cir. 2001) (holding that an authorized state’s

definition of hazardous waste “supplanted” federal regulations on the same issue). The

Government’s own proposed disputed jury instructions seem to agree on this point, as

the Government’s Disputed Instruction 5 cites all Colorado Regulations. Given the fact

that Colorado has long been an “authorized” state, and the long-standing case law

which provides that an authorized states’s regulations supplant the federal standards,

the Court has little trouble concluding that Colorado regulations, and specifically

Colorado’s hazardous waste definitions, govern the jury’s deliberations in this case. 

The Government also argues that it has “made it clear that it intends to maintain

federal oversight of all hazardous waste exportation, and notification of intent to export

provision in particular, for over twenty-five years.” (ECF No. 214 at 13-14.) The

Government then cites a Federal Register entry stating that States have no authority to

receive Notifications of Intent to Export and cannot transmit a Notification of Intent to

Export to foreign countries. (Id. (citing 51 Fed. Reg. 28664 (August 8, 1986).) Rather,

only the Federal Government can be involved in the notification process so that there is

one point of contact and more uniformity. (Id.) 

Despite the Government’s insistence that this shows that Federal standards

govern all exports, this Federal Register entry establishes only that the Federal

Government has to issue and transmit all Notifications of Intent to export. Nothing in

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 12 of 23
-13-

this Federal Register entry states that Federal waste regulations (rather than state

regulations in an authorized state) determine when the filing of a Notification of Intent to

Export is required. Whether a Notice of Intent to export is required depends on whether

a material is classified a “hazardous waste”. See 42 U.S.C. § 6928(d)(4); 6 C.C.R. §

1007-3:262.53. Federal regulations and the case law discussed above make it clear

that, because Colorado is an authorized state, Colorado law governs the determination

of whether the materials at issue here were “hazardous waste”. 

2. Whether Part 261 or Part 273 applies

Having decided that Colorado law applies here, the Court must next determine

what aspect of the Colorado regulatory scheme applies. Colorado’s regulatory scheme

sets up two alternate paths—Part 261 or Part 273—that a universal waste handler who

handles electronic materials and electronic components can choose to follow. In their

disputed jury instructions, the parties dispute how Parts 261 and 273 relate to each

other. Defendants contend that they managed their electronic waste in accordance

with Part 273 and, therefore, only these regulations should govern the jury’s waste

determination. The Government contends that Part 273 should play a role, but only as

a supplement to the solid waste definitions contained in Part 261. 

Having reviewed Colorado’s regulatory scheme, the Court rejects the

Government’s contention that Part 273 must be read in conjunction with Part 261. Part

273.1(b) states that the purpose of Part 273 is to provide “an alternative set of

management standards in lieu of regulation under Parts 260 through 268, and Parts 99

and 100 of these regulations.” 6 C.C.R. § 1007-3:271.1(b) (emphasis added). 

Interpretative guidance issued by CDPHE further emphasizes the alternate nature of

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 13 of 23
-14-

Parts 261 and 273: 

Electronic equipment and components removed from

electronic equipments determined to be hazardous waste

can either be managed in full compliance with the Colorado

Hazardous Waste Regulations [6 CCR 1007-3] Parts 260-

68, 99 and 100, or they can be managed in compliance with

the reduced requirements of the Universal Waste Rule in

Part 273. The Universal Waste Rule provides an alternative

set of reduced management standards that the generator

can follow instead of the full hazardous waste requirements.

(ECF No. 189-2 (emphasis added).) These authorities show that Parts 261 and 273

are two completely separate paths; nothing in the statutory scheme or the interpretive

guidance provides that Part 273 should be read in conjunction with Part 261 or vice

versa. 

Additionally, the purpose of Part 261 is to “identif[y] those solid wastes which are

subject to regulation as hazardous wastes under Parts 262 through 268.” 6 C.C.R. §

1007-3:261.1. Part 261.9 sets forth a list of materials, including “electronic devices and

electronic components” that “are exempt from regulation under Parts 262 through 268 .

. . except as specified in Part 273 of these regulations and, therefore are not fully

regulated as hazardous waste. The wastes listed in this section are subject to

regulation under Part 273.” Id. at 1007-3:261.9. Therefore, Part 261.9 plainly states

that when an electronic device or component is managed in accordance with Part 273,

the definitions included in Part 261 are irrelevant. 

At oral argument, the Government repeatedly emphasized the fact that it

charged Defendants in Count 14 with violating 6 C.C.R. § 1007-3:262.53, Notification of

Intent to export, which is a hazardous waste provision and not a universal waste

provision. The Government argues that, because of this charging decision, the Court

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 14 of 23
 The Government also argued that Part 273.2(f)(3) is preempted by RCRA because it 8

is less stringent than the federal regulations. (ECF No. 184 at 24-25.) The Government later

clarified that its position was that “federal law preempts defendants’ narrow, literal interpretation

-15-

must include the “solid waste” definition from Part 261. As an initial point, the Court

questions whether it would be equitable to allow the Government’s decision to charge

Defendants under Part 262 to deprive Defendants of the ability to manage their

electronic equipment and components under Part 273, as they are authorized to do

under Colorado law. However, more significantly, Part 273 has its own export

provision—Part 273.40—which states that a “large quantity handler of universal waste

who sends universal waste to a foreign destination . . . must: (a) Comply with the

requirements applicable to a primary exporter in § 262.53.” 6 C.C.R. § 1007-3:273.40. 

Because Part 273.40 explicitly cross-references the reporting obligations in Part 262.53,

the fact that the Government brought charges under Part 262.53 does not impact

whether the waste definitions from Part 261 or Part 273 should apply. 

The Government also contends that the Court should not instruct the jury on Part

273(f) because this particular provision was never authorized by the EPA. (ECF No.

214 at 13.) The Court agrees with the Government that the EPA did not, in 2008,

explicitly approve Part 273.2(f), though it did approve other portions of Part 273.2. See

73 Fed Reg. 13141, 13143 (March 12, 2008). However, on November 14, 2003, the

EPA approved Part 261.9, which states: “The wastes listed in this section are subject to

regulation under Part 273: . . . (6) Electronic devices and electronic components as

described in § 273.2(f) of these regulations.” 6 C.C.R. § 1007-3:261.9. Because the

EPA approved a provision that incorporates by reference Part 273.2(f), the

Government’s argument is not persuasive. 

8

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 15 of 23
of the universal waste definition without regard for the interpretive guidance or other published

authority regarding the regulations.” (ECF No. 214 at 8.) Because, as discussed below, the

Court will instruct include instruct the jury that resale or reuse must be “for its original intended

purpose” based on the 2004 CHPDE Memorandum, the Government’s preemption argument is

rendered moot. 

-16-

Defendants have proffered to the Court that they managed their electronic

devices and components in accordance with Part 273. Under Colorado law, and as

universal waste handlers certified by the State of Colorado, they were authorized to do

so. Accordingly, the Court finds that the regulations in Part 273 govern this action and

will form the basis for the jury instructions regarding whether the electronic devices and

materials were waste. Because Government’s Disputed Instruction 5 is based primarily

on Part 261, the Court rejects that Instruction. 

3. Scope of Instructions from Part 273

Part 273.2(f) outlines when an electronic device or electronic component

becomes a “waste”: 

(3) Generation of waste electronic devices and

electronic components.

(i) A used electronic device destined for disposal

becomes a waste on the date it is discarded.

(ii) A used electronic device destined for recycling

becomes a waste on the date the recycler

determines that the device cannot be resold,

donated, repaired, or refurbished, or

determines that he/she cannot directly reuse or

sell useable parts from the device.

(iii) An electronic component becomes a waste on

the date the recycler determines that the

component cannot be resold, donated,

repaired, or refurbished, or determines that

he/she cannot directly reuse the component

(iv) An unused electronic device becomes a waste

on the date the handler decides to discard it.

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 16 of 23
-17-

6 C.C.R. § 1007-3:273.2(f). Defendants’ Disputed Instruction N quotes directly from

this regulation but includes only subparts (ii) and (iii). The Government contends that

the jury instruction should include all four parts of the waste determination. 

The Court agrees with the Government and will include all four subparts of Part

273.2(f)(3) in its instruction. Defendants are free to argue that subpart (i) and (iv) are

irrelevant here but, in the interest of completeness, the jury will be instructed on all four

subparts. 

More significantly, the Government contends that interpretive guidance issued by

the CDPHE subsequent to adoption of Part 273.2(f)(3) should be included in the jury

instruction. In 2004, Colorado’s Compliance Program Manager for the Hazardous

Materials and Waste Management Division issued a Memorandum for the purpose of

“clarification of the hazardous waste regulations as they pertain to electronic waste

recycling service providers doing business in Colorado.” (ECF No. 184-1.) The key

aspect of this Memorandum is the clarification that, in order for electronic devices or

components to not be considered waste, they must be reused or resold “for their

original intended purpose.” (Id. at 3.) 

Defendants oppose the addition of any reference to the device or component’s

original intended purpose. Defendants argue that nothing in the 2004 Memorandum

states that it was specifically intended to modify Part 273.2(f)(3) and, therefore, the

Court should not read this subsequent guidance into the plain language of the

regulation. The Court disagrees. The 2004 Memorandum repeatedly refers to Part 273

and the “Universal Waste Regulations” (which are Part 273) and states that the intent of

the Memorandum is to clarify the hazardous waste regulations as they apply to

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 17 of 23
 The Court also notes that the 2004 Memorandum was published approximately four 9

years before the exports at issue in this case occurred. As Defendants were certified universal

waste handlers by the CDPHE, and their business was electronic waste recycling in a heavily

regulated industry, the Court has little difficultly concluding that they had notice of the 2004

Memorandum so as to dispel any concerns regarding Due Process. 

-18-

electronic waste recyclers. As discussed above, and as Defendants vehemently argue

in advocating that the Court instruct the jury on Part 273 rather than Part 261, the

provisions that apply to electronic waste recyclers are the Universal Waste Regulations

in Part 273. The particular regulation that dictates when an electronic device or

component becomes a waste is Part 273.2(f)(3) and the 2004 Memorandum was

clearly targeted at this provision as it devotes an entire section to how a recycler is to

determine whether an electronic device or component is a “product” or a “waste”. (ECF

No. 184-1 at 3.) Thus, the Court finds that the 2004 Memorandum provided interpretive

guidance to the meaning of Part 272.3(f)(3) that is relevant to the jury’s determination of

whether the electronic materials at issue in this case were waste.9

The 2004 Memorandum states, in pertinent part: 

The definition of “product” also needs to be clarified. For

post-consumer electronic devices or components to be

considered products, they must have reuse and/or resale

value for their original intended purpose. Examples include a

computer monitor that is resold for continued use as a

monitor, a computer CPU that is refurbished for continued

use as a computer, or a computer chip that can be removed

from one CPU and used to repair another for continued use

as a computer. This definition does not include value as

scrap metal. Electronic devices and components destined

for materials recovery as scrap metal are considered to be

wastes, not product.

(ECF No. 184-1 at 3.) 

The Court acknowledges, as Defendants argue, that Part 273.2(f) does not

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 18 of 23
-19-

contain the word “product”. However, Part 273.2(f)(3) defines when something is “not a

waste” and the 2004 Memorandum makes clear that, in the view of CDPHE, anything

that is “not a waste” is a “product”. Therefore, the 2004 Memorandum’s clarification of

what constitutes a “product” is directly relevant to the definition of what is “not a waste”

in Part 273.2(f)(3). 

Defendants also argue that grafting the interpretive guidance from the 2004

Memorandum onto the text of Part 273.2(f)(3) would impermissibly narrow the waste

determination. Defendants contend that RCRA allows electronic components, which

would fall within RCRA’s description of “ingredients”, to be considered “not waste” if

they can be reused for any purpose. The problem with this argument is that

Defendants are essentially contending that Colorado’s 2004 Memorandum makes its

Universal Waste Regulations more stringent than RCRA’s implementing regulations as

it would require a wider net of materials to be handled as waste. RCRA makes clear

that Colorado is permitted to do exactly that. See 42 U.S.C. § 6929. Because, as

posited by Defendants, Colorado’s requirements are more stringent than RCRA, RCRA

is not an impediment to including the 2004 Memorandum’s interpretive guidance in the

Court’s jury instructions. 

For all of the reasons stated above, the Court accepts Defendants’ Disputed

Instruction N but will modify it to include all four subparts of Part 273.2(f)(3) and will

incorporate the interpretive guidance contained in the 2004 Memorandum. 

B. The Court’s Jury Instructions on Hazardous Waste

If the jury determines that the electronic materials at issue in this case constitute

“waste”, it must then determine if they were “hazardous waste”. Defendants’ Disputed

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 19 of 23
-20-

Instruction O provides a definition of “hazardous waste” from Part 261.3(a) which would

require the jury to find: (1) that the waste has no commercial value; and (2) that the

waste exhibits any of the characteristics of hazardous waste, including ignitability,

corrosivity, reactivity, or toxicity. (ECF No. 177 at 20.) 

As discussed above, the Court finds that Part 261 is not relevant to this action. 

Rather, because Defendants have opted to manage the electronic materials at issue in

this case in accordance with Part 273, the definition of “hazardous waste” in Part 273 is

applicable. Part 273.2(f)(2)(ii) provides: “An electronic device or electronic component

is a hazardous waste if it exhibits one or more of the characteristics identified in Part

261, Subpart C.” Notably, this definition of hazardous waste omits any reference to

whether the waste has “commercial value”. Given that the jury will already have either

implicitly or explicitly considered the electronic material’s commercial value when

determining whether it constitutes a “waste” in accordance with Part 273.2(f)(3)(i)-(iv),

the omission of “commercial value” from the “hazardous waste” determination makes

sense. 

Accordingly, the Court will instruct the jury on the definition of hazardous waste

from Part 273.2(f)(2) and Defendants’ Disputed Instruction O is rejected. 

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows: 

1. The Government’s Disputed Instruction 5 is rejected; 

2. Defendants’ Disputed Instruction L is accepted but will be modified as set forth

below; 

3. Defendants’ Disputed Instruction M is accepted as a stipulated instruction based

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 20 of 23
 The Court notes that Subpart C of Colorado’s Hazardous Waste regulations also 10

includes materials that have characteristics of ignitability, corrosivity, and reactivity. 6 C.C.R. §

1007-3:261.20 et seq. However, based on both parties’ jury instructions, it appears the only

issue here is whether the electronic materials exhibited characteristics of toxicity and, therefore,

the Court proposes to instruct the jury only on this quality. If this is a misapprehension and the

characteristics of ignitability, corrosivity, or reactivity are relevant to this case, the Court will

amend its instructions to address the appropriate portions of Subpart C. 

-21-

on the modifications noted above and discussed at the Court’s November 27,

2012 Final Trial Preparation Conference; 

4. Defendants’ Disputed Instruction N is accepted but will be modified as set forth

below; and

5. Defendants’ Disputed Instruction O is rejected. 

With respect to whether the materials at issue in this case were a hazardous

waste, the Court will instruct the jury as follows:

What Constitutes a Hazardous Waste

The government is required to prove that the material

charged in Counts 14 and 15 was a “hazardous waste”. To

find that the material is a “hazardous waste”, you must find

that:

(1) The material is a “waste” as defined below;

and

(2) The material exhibited “characteristics of

toxicity” as defined below.

10

If you find that the Government has not proven beyond a

reasonable doubt that the material was a hazardous waste,

then you must return a verdict for Defendants on Counts 14

and 15. 

What Constitutes a Waste

Electronic devices and electronic components can

become a “waste” in four ways:

(1) A used electronic device destined for disposal

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 21 of 23
-22-

becomes a waste on the date it is discarded; 

(2) A used electronic device destined for recycling

becomes a waste on the date the recycler

determines that the device cannot be resold,

donated, repaired or refurbished, or

determines that he cannot directly reuse or sell

useable parts from the device.

(3) An electronic component becomes a waste on

the date the recycler determines that the

component cannot be resold, donated,

repaired, or refurbished, or determines that he

cannot directly reuse the component.

(4) An unused electronic device becomes a waste

on the date the handler decides to discard it. 

For subparts (2) and (3) above, in order for an

electronic device or electronic component to not be a waste,

it must be resold, donated, repaired, reused or refurbished

for its original intended purpose. For example, the following

would not be considered a waste: (1) a computer monitor

that is resold for continued use as a monitor, (2) a computer

CPU that is refurbished for continued use as a computer, or

(3) a computer chip that can be removed from one CPU and

used to repair another for continued use as a computer. 

Electronic devices and components destined for

materials recovery as scrap metal are considered wastes.

If an electronic device or component is not a waste, it

cannot be a hazardous waste. Thus, if you find that the

materials at issue in this case were not a waste, you must

return a verdict for Defendants on Counts 14 and 15. 

Definition of Electronic Device and Electronic

Component

“Electronic Device” means electronic equipment that

contains one or more electronic circuit boards or other

complex circuitry, including but not limited to computer

monitors, televisions, central processing units (CPUs),

laptops, printers, terminals, mainframes and stereo

equipment.

“Electronic Component” means components,

subassemblies or other parts derived from the disassembly

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 22 of 23
-23-

of electronic devices.

“Cathode Ray Tubes (CRTs)” are vacuum tubes, made

primarily of glass, which constitute the video display components

of televisions and computer monitors.

A computer monitor is an electronic device.

A CRT is an electronic component.

Characteristic of Toxicity

Characteristic hazardous wastes are wastes that are

hazardous because they exhibit one or more of the

hazardous characteristics identified in the regulations, such

as toxicity. A solid waste is a hazardous waste exhibiting the

characteristic of toxicity if, using the Toxicity Characteristic

Leaching Procedure (TCLP”), Test Method, the extract from

a representative sample of the waste contains lead at a

concentration equal to or in excess of 5.0 milligrams per liter.

A “representative sample” is a sample of a universe

or whole (e.g., a waste pile, lagoon, groundwater) which can

be expected to exhibit the average properties of the universe

or whole.

The order of the instructions above is not necessarily the order in which they will

appear in the Court’s final jury instructions. The Court also reserves the right to modify

the instructions stylistically so that they conform with the remainder of the Court’s final

jury instructions. However, the substance of the Court’s final jury instructions on this

issue will be as set forth above.

Dated this 29 day of November, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

Case 1:11-cr-00376-WJM Document 230 Filed 11/29/12 USDC Colorado Page 23 of 23