CE Makers Say Their Gripes About NYC E-Waste Program ‘Stand Unrebutted’

The program “places the electronics industry on the precipice of an unprecedented collection and recycling mandate that threatens the viability of many of the plaintiffs during a severe recession,” they argued in a memorandum responding to the city’s opposition papers. “There is no precedent supporting the legality of a municipal environmental program of this magnitude. A preliminary injunction is necessary for the modest time required to assess whether such a sweeping mandate violates the constitutional rights of hundreds of companies that employ many thousands of individuals worldwide.”

Nowhere in 1,000 pages of opposition papers did New York City “withdraw or revise” Mayor Michael Bloomberg’s public statements in 2007 that the e-waste program is illegal and unconstitutional, CE makers said. Instead, the city stressed it “will grant waivers and otherwise administer their program to comply with constitutional limits and to lessen the damages suffered by plaintiffs,” they said. “Defendants then shift the discussion from the details of the city’s e-waste program to the benefits of purportedly similar e-waste programs in other states. Neither argument provides a factual or legal basis to deny plaintiffs a preliminary injunction for the modest additional time required to fully brief and adjudicate the legality of the city’s unprecedented electronics collection and recycling mandates contained in their e-waste program.”

Sworn declarations from “unqualified declarants,” including Robert Lange, the Department of Sanitation official who’s supervising the city’s e-waste program, “proffer no data or analysis to suggest that the program as codified will work or not impose severe and immediate burdens on the plaintiffs and their hundreds of members,” CE makers said. “Astonishingly, they argue for the court’s serious consideration that Peapod trucks can be enlisted to create the vast new infrastructure to collect millions of old televisions and computers.” Peapod is the online grocery shopping and delivery service based in Skokie, Ill. “Plaintiffs respectfully submit that the defendants are mixing apples and oranges to a new extreme.”

The city has argued that manufacturers could lessen the burdens of the e-waste program’s direct collection requirement by banding together and filing group collection plans. But affidavits from the top environmental officials at LG, Panasonic, Sony and Sharp said that would be easier said than done. “Despite extensive outreach efforts targeted at individual manufacturers, only 22 companies have expressed interest in joining MRM’s efforts to explore how to comply with the NYC e-waste program,” said Panasonic’s David Thompson, president of MRM, the e-waste compliance company owned by Panasonic, Sharp and Toshiba.

“At this juncture it is not possible to provide a meaningful estimate regarding the collective responsibilities of these companies in a group plan since the NYC e-waste program makes it extremely difficult to make cost allocations among manufacturers,” Thompson said. “One particular difficulty relates to the NYC e-waste law’s provision that essentially makes two manufacturers responsible for the same product.” According to the law, he said, Manufacturer A must accept for collection any electronics that Manufacturer A assembled, manufactured, imported, or sold under its brand name. But Manufacturer B must accept for collection Manufacturer A’s used product when it sells one of its products, Thompson said. “In a group plan context, it is extremely difficult to determine which manufacturer should get credit for collection of this product for purpose of cost allocation or compliance with the performance standard obligation.” So the “assumption” the city makes “that manufacturers will simply come together into a common plan is not justified based on MRM’s experience,” Thompson said.

MRM also “is not equipped to deal with a direct collection mandate,” Thompson said. “MRM has neither the manpower, equipment, business structure nor resources to handle such a burden itself.” Moreover, “MRM’s efforts to explore such infrastructure have been unsuccessful and indicate that there are no service providers who can meet these needs,” he said. “To implement direct collection, MRM’s only option is to rely on a third party service provider, at enormous cost. Even assuming such a service provider can be secured, such expenditures will place great pressure on MRM’s ability to maintain, let alone expand, its recycling efforts in all 50 states, including New York State.”

MRM prepared a request for proposals and sent it to 15 collectors and recyclers in New York City, Thompson said. “None of the responders were able to exhibit the capability to operate a city-wide collection network,” he said. “A small number of respondents, including three small non-profits, indicated an interest in providing or establishing collection locations, including operating collection events, but none is able to provide the direct collection service mandated by the NYC e-waste program. One large national waste hauler and recycler responded and it was only interested in providing collection drop-off locations and conducting collection events and was also unable to even entertain providing the direct collection services.”