NYC E-Waste Program Passes ‘Constitutional Muster,’ NRDC Says

The e-waste program “adopts a well-established and sensible solution” by requiring “those responsible for incorporating hazardous materials into electronic equipment to make sure it is collected, and recycled or reused,” the city said. It wants the court to deny manufacturers the preliminary injunction they seek, because, the city said, the plaintiffs “are unlikely to succeed” on their claims that the e-waste program is unconstitutional or impedes interstate commerce. Nor have the manufacturers shown the irreparable harm needed to win an injunction, it said. So, the city said, it “should be allowed to move forward with the implementation of this important environmental program.”

Manufacturers are challenging the city’s e-waste program as unconstitutional based on “a deliberately extreme and overly draconian interpretation” of the program’s rules and requirements, said the Natural Resources Defense Council, which has joined the case as a defendant. The complaint portrays the e-waste program as “a radical outlier that imposes overly costly, unworkable and extreme requirements on manufacturers of electronic products,” the council said. The program “does no such thing,” it said. The plaintiffs argue that the e-waste program violates the Constitution, but “in countless ways, shorn of its hyperbole and hysteria, the instant motion fails to identify a single provision of the law that does not pass Constitutional muster,” it said.

Seven sworn declarations supported the city’s and the NRDC’s opposition to a preliminary injunction. In many of the 18 states that have adopted e-waste laws based on extended producer responsibility, manufacturers have threatened lawsuits but ultimately chose to comply, said council attorney Kate Sinding in one of the statements. “Importantly, most if not all of the claims” manufacturers have made against New York City’s e-waste program would apply to the other 18 extant EPR-based state e-waste laws (as well as the 13 pending e-waste laws, including that in New York State, and a number of other EPR-based laws governing other products around the nation),” Sinding said. “As such, the action threatens to dismantle the growing national consensus in favor of the EPR approach.”

The city Sanitation Department’s final rules “impose reasonable requirements on manufacturers and allow manufacturers a great deal of flexibility in how they design, develop, and implement their electronic waste management plans,” Robert Lange, the director of the department’s Bureau of Waste Prevention Reuse and Recycling, said in a declaration. “Contrary to claims put forward by plaintiffs, the Final Rules, including direct collection, are not arbitrary or irrational and do not impose upon manufacturers the burdens claimed in the complaint.” For example, nothing in the rules “prevents manufacturers from using other collection methods in addition to direct collection, as long as direct collection is included in a manufacturer’s electronic waste management plan as an option available to all city residents,” Lange said. “Manufacturers are free to submit a plan to the Department that contains not only a direct collection option, but also an option for establishing designated drop-off sites for e-waste in any or all of the five boroughs, holding special collection events, or collecting [covered electronic equipment] from various retail locations throughout the city.”

“Given the city’s unique demographics, it is not hard to envision at least some residents utilizing methods other than direct collection,” Lange said. For city residents who own a car, dropping off an old TV at a “periodic” collection event “would likely be more convenient than making arrangements and waiting at home for a direct pick up,” he said. “While vehicle ownership for occupied households in Manhattan is below 25 percent, such ownership exceeds 65 percent in Queens and 82 percent on Staten Island. … So long as these residents have the option to have covered electronic equipment retrieved from their residences, they and manufacturers can benefit from manufacturers including in their plans options other than direct collection for CEE weighing more than 15 pounds.” Nothing in the rules requires manufacturers to drop what they're doing and retrieve an unwanted old TV from a resident’s home “upon demand,” Lange said. The rules are flexible enough to allow manufacturers to schedule pickup times at specific addresses to avoid the need for multiple truck rolls, he said.

The manufacturers’ claims “falsely assume that there is no existing infrastructure for collection from residences and that manufacturers would be required to create, essentially from scratch, a vast new collection network,” Lange said. In fact, New York City “has an existing infrastructure that can be used for direct collection from residences,” he said. One element includes “the thousands of trucks that deliver products, electronics and otherwise, directly to residences throughout the five boroughs,” he said. “Based on my conversations with representatives of a number of delivery services, these trucks often return empty to warehouses and distribution centers.” The final rules don’t require manufacturers to own or operate any trucks used in direct collection, he said. “The rules allow manufacturers to utilize these delivery trucks on their return trips.”

Washington state’s recycling program, based on extended producer responsibility, “is meeting expectations,” said Jay Shepard, who oversees the program for the state Department of Ecology, in a declaration attesting to the importance of manufacturers banding together in group e-waste collection plans to ease the burden of compliance in New York City. In the first year of E-Cycle Washington, all manufacturers took part in a group plan. But two groups of manufacturers have told the state that they plan to submit independent plans for 2010, he said. One group, which includes Panasonic, Samsung, Sharp and Toshiba, has chosen CRT Processing LLC as its authorized recycler, he said. Another group includes Sony and ViewSonic. Its proposed plan, called the Manufacturer Interstate Takeback System, will be coordinated by E-World Online, with direction from Sony Electronics, he said.