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War of words waged over Big Apple’s e-waste law

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A legal battle over an e-waste law enacted in New York City could have far-reaching implications throughout the United States and create a “chilling effect” on existing state programs and pending legislation, according to a leading environmental organization. That scenario, however, is being dismissed by industry trade groups representing manufacturers, retailers and distributors of electronics equipment, who say they were simply forced into filing suit due the “challenging, burdensome and costly” regulations. Those regulations — including one that they contend would require them to go door-to-door to collect recyclables — were promulgated under the law by the city’s sanitation department.

“We have no plans to challenge other states' e-waste laws, but we will challenge unreasonable and overly burdensome laws like the New York City e-waste law,” said Parker Brugge, vice president, environmental affairs and industry sustainability, with the Consumer Electronics Association (CEA). The CEA is a trade association that represents more than 2,000 companies.

Brugge’s statement — while also noting that retailers and manufacturers have adopted voluntary take-back programs and that the industry complies with e-waste laws enacted by 19 states from California to Maine — does little to assure environmentalists, leaving both sides waging a war of words, much as the industry is doing in court with the Big Apple.

“To say that they’re speaking out of both sides of their mouth would an understatement,” says Kate Sinding, a senior attorney with the National Resources Defense Council. “They would like the public to believe that they are green and progressive environmentally and therefore that they’re happily complying with these laws in 19 states. Yet at the same time, they have filed a lawsuit that is so broad in its constitutional challenges as to threaten to undermine all of those laws that they claim to be so happily complying with.”

At issue is an e-waste law passed in 2008 by New York City and the regulations imposed under it by the city’s sanitation department. On July 24, 2009, five days before the legislation was to take effect, a legal challenge was filed in U.S. District Court by the CEA , the Information Technology Industry Council (ITI), and ITAC Systems, Inc. Oral arguments on a preliminary injunction were scheduled to be held in February.

“Despite the technology industry’s best efforts to negotiate with New York City officials on a reasonable and effective recycling program, the city is proceeding with plans to impose the most costly, burdensome and environmentally harmful electronics recycling requirements in the world,” contends Dean Garfield, president and chief executive officer at ITI.

The legislation passed by New York City was believed to be the first-ever comprehensive municipal electronics recycling law. Industry officials describe the city’s program as “clearly the most challenging, burdensome and costly” they have ever seen.

“There are no other cities which have done this,” Brugge notes.

The industry obviously does not want to deal with a patchwork of varying municipal or state laws dealing with e-waste. Wisconsin recently became the 20th state to enact an e-waste law which will become effective Sept. 1.

'The continued involvement of the state-by-state patchwork is not only confusing for consumers but is very burdensome for manufacturers and others who have to comply with different regulations and laws across the various state programs,” Brugge says.

“We do not want to see a municipal by municipal approach,” he adds. “We support national legislation to address this issue.”

Some speculated that passage of the New York City legislation was aimed at an effort to get e-waste legislation passed in Albany to address the issue statewide. Such state legislation would preempt the city law.

Sinding predicts it could be years before a federal e-waste law is passed.

“I certainly understand the industry’s argument that they’d rather comply with one law than deal with a patchwork, but the reality is what they’ve been lobbying for at the federal level has been an extremely weak version of law we see in the other states,” she says.

Sinding says her preference is to watch each of the state laws as they “mature” to learn what works best.

“Most are very, very new,” she says. “We’d like to see an opportunity to get some real data from the states; there are 19 state laws that are all based on take-back but each one is slightly different from the other. We see this an opportunity where using the states as laboratories for experimentation makes a lot of sense before rushing to a one-size-fits-all national law.”

In the meantime, industry, city officials and environmentalists are squaring off in federal court over the New York City law. Among the most odious regulations under that law, according to industry officials, is a requirement to provide what it claims would be a free, door-to-door electronics collection throughout the city for items weighing 15 pounds or more.

Brugge insists that despite city assurances that direct collection would not actually be required, it is still mandated under the regulations.

“There is no other way to interpret it,” he says. “The regulation is very clear that direct collection must be offered and we think that consumers, if given the option of having somebody come and pick up their product or having to take it and drop it off, they’re going to choose to have the manufacturer come to their house to pick it up.”

The industry claims such a collection program would put 300-400 trucks a day on already crowded city streets, creating environmental problems with air and noise pollution and carbon emissions.

They also argue that the collection program would cost $200 million annually and that those costs will eventually have to be passed on to consumers nationwide, making the law unconstitutional. The $200 million figure is disputed by the city.

Sinding says the industry estimate is “clearly premised on an interpretation of the regulations that is the most onerous and frankly absurd interpretation possible which basically is any time somebody in the city wants to get rid of something that weighs more than 15 pounds, they have to deploy an individual truck to go and get that item. Clearly that’s not the city’s intention.”

Currently, the city allows residents to place unwanted electronics at curb side for pickup by the sanitation department as part of the regular waste stream. Those items are then dumped in landfills or incinerated. There are also voluntary collection events where the items are collected for recycling.

Sinding says her organization doesn’t care who is responsible for collection and handling of e-wastes, as long as the cost is borne by the industry.

“All we care about is that the manufacturers are responsible for the costs of handling the products at the end of life,” she says.

For its part, the industry would be content to let city sanitation continue to collect e-waste and to bring it to a collection point, where manufacturers would then assume responsibility. Brugge notes that the city already collects large appliances, such as refrigerators and washing machines, at no cost to residents.

“They’ve singled out electronics saying that manufacturers have to be responsible for the waste stream. We feel the city is well positioned to provide this service to the residents and it would be a much more cost-effective solution if the sanitation department was partly responsible and assisting with the collection,” Brugge says. “Our position is manufacturers shouldn’t bear the entire burden of the e-waste program.”

The dispute over the e-waste law has brought the issue of manufacturer responsibility to the fore, with some saying the industry is trying to shirk its responsibility while the industry defends its programs.

“The city’s landmark recycling law would keep thousands of tons of spent electronics out of our landfills and incinerators every year,” Sinding says. “It’s unfortunate that the nation’s leading manufacturers, hiding behind their trade associations, are trying to prevent this long overdue environmental program from taking effect.

“At root, they are trying to escape liability for manufacturing toxic products on the basis that once sold they can wash their hands of them,” she says. “Not only does this proposition offend basic notions of corporate responsibility, but a consideration of other regulatory approaches commonly employed in this country suggests that it cannot be correct.”

The industry maintains that manufacturers and retailers have voluntary programs in place and readily comply with state e-waste laws.

“We feel all electronics can and should be recycled,” Brugge says. “They need to be recycled in a safe and appropriate manner, regardless of where it is done. . . . The industry has embraced the notion of producer responsibility. But when it comes to this (New York City) law, where you have to go door-to-door and there is a 1:1 take-back, that’s where we draw the line. That’s not producer responsibility. That goes way too far.

“We’ve never challenged any state law,” he adds. “New York City just went too far.”

Sinding says she is optimistic the court will rule in the city’s favor once it separates the law from the regulations.

“The fear is that the court may not parse the law from the regulations, at least during the preliminary injunction stage, and that could result in an adverse decision that could then have a chilling effect on other state programs or other pending laws,” she says. “In a worst case scenario, it could have far reaching effects that would really do a lot of harm to what we see as a paradigm shift in how parts of the waste stream should be handled.”

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