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Producer Responsibility through the Prism of Political Necessity (Part 1)

The evolution of a producer responsibility law from ideological theory to practical reality in less than a decade.

2008

“Tension is building in New York City over an electronics-recycling bill that places the responsibility for collection of unwanted electronics on manufacturers. In February, the New York City Council approves a bill that would, beginning in 2010, fine any New Yorker $100 for throwing electronics — including televisions, computers, MP3 players or printers — into the trash. It also would fine manufacturers for not meeting mandatory tonnage standards. New York City's law places the burden for collecting and recycling used electronics squarely on the manufacturers.”

“It is time for manufacturers to take responsibility for the impact their products have on the environment,” says Bill deBlasio, City Council member and lead sponsor of the bill.

March, 2008

Waste360

"I would like to thank …… all the staff who collectively worked with the Council to reach consensus on this issue. I would also like to thank Speaker Quinn for her leadership and the Council for approving this bill."

April 1, 2008

Remarks by Mayor Bloomberg at a Public Hearing on Local Laws

“This was done for environmental reasons and because taxpayers have been paying to haul those things away,” says New York City Councilman Bill de Blasio, who sponsored the bill.

April 21, 2008

CNBC

2010

New York State Electronic Equipment Recycling and Reuse Act (the “Act”), signed into law by Governor David Paterson. The bulk of the Act, effective as of April 1, 2011, serves to impose various new mandates on “manufacturers” [ECL §27-2601(11)] and ”retailers” [ECL §27-2601(16)] geared toward increasingly stringent goals for recycling of “covered electronic equipment” (“CEE”) [ECL §27-2601(5)] , as well creation of associated systems for the collection and recycling/reuse of electronic waste at no cost from consumers under NYS Department of Environmental Conversation ("DEC") oversight.

Sept. 1, 2010

InfoLawGroup LLP

2016

Staten Islanders can soon trash old televisions, computers and other useless electronics curbside through a new e-waste pickup program. [Author’s Note: The new “program” is a taxpayer funded curbside collection program performed by the Department of Sanitation] Mayor Bill deBlasio says the test run will help the city's long-term OneNYC effort to make the five boroughs more equitable, sustainable and resilient.

"Staten Island spoke, and we listened," de Blasio said in a statement. "This new pilot program is a win-win -- making it much easier for residents to safely dispose of their e-waste, while protecting our environment and furthering our OneNYC goals."

April 20, 2016

SI Advance  

 Prior to the economic crash in 2008, while the economy was still booming and the consumption of consumer goods, particularly consumer electronic products, was at an all-time high, the New York City Council began advancing a piece of legislation, drafted by representatives from the local chapter of the National Resources Defense Council (NRDC), to address the growing amount of post-consumer electronics in New York City’s waste stream.

While at the time, electronics were still less than 1 percent by weight (a relatively small amount of the city’s overall waste stream), the contents of post-consumer electronics contained metals that were potentially toxic and not appropriate for landfilling or incineration; though it must be noted that the hyperbolic rhetoric concerning e-waste at the time was disproportionally dour in tone in comparison to the actual potential harm.

Producer responsibility laws allow the manufacturers of products to price their goods in a manner that includes the full life cycle cost of their product, resulting in individual consumers of such products paying the price to offset the product’s post-consumer cost upfront. This replaces the construct of spreading the cost among all taxpayers at the products’ end of life, both those who consume products and those who may not consume such products.

The most important part of the law was its advancement of a developing consensus among environmental advocates, solid waste management professionals, elected officials and the public that the manufacturers of products had an obligation and responsibility for the post-consumer impact their products could have on the environment. This was in direct opposition to the idea that the full end-of-life cost of such items should be borne by all taxpayers.

While at the time the idea of “producer responsibility” was a radical concept for America, it was a fairly commonplace understanding in Europe. Because e-waste is a miniscule but potentially toxic component of the waste stream, it presents the greatest challenge to cost effective and successful capture by commonly practiced means, and why product stewardship by manufacturers makes sense.

In addition, the general fragility of electronic waste, that is to retain its post-consumer commodity value and recyclability, prohibits the use of collection methods that have proved cost effective for other post-consumer items, such as using packer trucks for curbside collection.

While the presence of electronic waste in the waste stream was relatively small in comparison to other components of the waste stream, by 2008 it was apparent by the ubiquitous presence of electronic devices in consumers’ lives that it was likely to be one of the most rapidly growing components of the waste stream in the future.

Technological development in consumer electronics with concomitant product replacement was already resulting in frequent product upgrading by manufacturers and the subsequent purchasing by consumers of “new and improved” products. This resulted in a marked increase in the disposal of old technology.

New York City was not the first jurisdiction to take the step of placing some of the responsibility for waste disposal on the manufacturers of consumer electronics, but it was notably the largest, with the highest population density. New York City is also notable for its limited vehicle ownership with less than 50 percent of the population owning a vehicle.

In order for the proposed e-waste legislation to be successful in capturing and redirecting e-waste away from landfilling and incineration, convenient options had to be provided to allow consumers to properly recycle their e-waste. Residents now quite used to the convenience afforded them by curbside collection services for other components of the waste stream.

When initially proposed, the legislation was actively opposed by then mayor Michael Bloomberg, a billionaire who had made his fortune in tech-related industry. The mayor’s expressed objections were to what he perceived to be arbitrary tonnage recovery targets that each manufacturer would have to meet, based on a formula using each manufacturer’s three year average of prior company area sales. At the time, the Department of Sanitation (DSNY), the city agency required to draft the rules and regulations as to how the law would be implemented and enforced, opposed the legislation as well because it failed to address in any detail how convenient each manufacturer would have to make their take-back services for the public.

Without such a definition, e-waste would continue to show up at the curb for collection by DSNY, or alternatively be found in locations like street corners or vacant lots where the generator’s ownership could not be easily determined by DSNY enforcement agents. Without the critical factor of convenience being properly defined and set forth in the law itself, responsibility for defining take-back convenience for New York City residents would fall squarely on the shoulders of the DSNY.

Though the City Council had sufficient votes to pass the introduced law and override any possible Mayoral veto, by March of 2008, the Mayor and the City Council had reached a compromise, and the introduced bill was signed by both parties and passed into law on April 1, 2008. At this point, the law still lacked a proper articulation of how manufacturers were to implement a program that would be convenient for New York City’s more than 8 million residents. That job fell to my office at the Department of Sanitation.

Working with my staff at the Bureau of Waste Prevention, Reuse & Recycling, we drafted the new law’s proposed implementation rules and regulations, emphasizing why manufacturers had to provide convenient outlets down to the neighborhood level, particularly for items as large as big screen TVs.

The response by the electronics manufacturers and their trade groups was to initiate litigation placing a temporary stop on the implementation of the law. The city began discussions with the individual major dominant industry players as well as the industry trade groups that represent the industry’s collective interests. We sought compromises that could be made in some elements of the law as well as the implementation rules and regulations as proposed by DSNY.

The Sanitation Workers Union (Local 831) also joined the litigation as a party via an amicus brief along with the electronics industry, arguing that the law should not go forward based on the theory that if e-waste was to be collected from households in any manner, DSNY workers should be the primary collectors. The electronic industry representatives were receptive to DSNY workers providing collection services, the cost of which, under the producer responsibility law, would have to be reimbursed to city taxpayers.

However, they balked when presented with the estimated collection costs, which they deemed prohibitive. It should be noted that the average DSNY collection worker makes approximately $100,000 on average per year with overtime.

At the same time that discussions were taking place between the City of New York and the electronics industry’s representatives, behind the scenes efforts were being made to have the State of New York preempt the city’s law by passing similar legislation that would ultimately be more palatable to the industry.

In particular, by lessening the perceived burden upon the industry to provide convenient take-back options in cities of more than one million in population, of which there is only New York City. When viewed from the geographically remote state capital of Albany located in upstate New York, the idiosyncratic needs of New York City do not seem as important to the members of the state legislature as they might have previously seemed to the New York City Council or the city agency in charge of implementing a post-consumer producer responsibility electronics recovery law.

Primarily for those reasons, and to the satisfaction of the electronics industry, the definition of convenient take-back was redefined in the proposed New York state law, and the implementation rules and regulations issued by the New York State Department of Environmental Conservation, to more closely reflect convenience standards which were more easily satisfied in the rural and suburban portions of New York; and where vehicle ownership is common.

Within a short period of time after the passage of the state law, which included a ban on curbside set out of covered electronics for MSW collection, it became evident that the take-back options being offered as part of the state law were inadequate to meet New York City residents’ needs.

To supplement the limited number of convenient options offered by manufacturers under the law and to aid New Yorkers in properly disposing of their unwanted e-waste, my office created the e-cycle program (Resource Recycling, March 2015), a program recently awarded a Harvard Bright Ideas award and a finalist for Harvard University’s Innovations in Government Award.

The goal of the e-cycle program is to maintain the spirit of the producer responsibility law by not placing any burden on taxpayers to fund the program while at the same time providing greater take-back convenience options for New Yorkers. The program focuses primarily on those residents housed in multi-family dwellings with limited access to a vehicle.

Through a solicitation process, the city partnered with Electronic Recyclers International (ERI) to provide free take-back services for taxpayers living in apartment buildings (10 units and above). In addition to the e-cycle program, DSNY also held Household Hazardous Waste Drop-off Days multiple days per year throughout the five boroughs of the city when e-waste could also be dropped-off by residents and removed by ERI under the same no cost program.

While DSNY initiated the programs described above, they did not fully eliminate all the inconveniences of getting rid of unwanted consumer electronics. They were successful in significantly reducing the burden, particularly for the disposal of larger consumer electronic items, and for those residents usually not in possession of a vehicle.

However, to ensure compliance with any law, it is necessary to make it both easy to comply and financially uncomfortable to fail to comply. Unfortunately, because the e-waste law is a New York State, rather than a New York City law, enforcement resides with the New York State Department of Environmental Conservation (NYSDEC) rather than with DSNY. For that reason, the city has limited capacity to ensure compliance by residents. Sanitation can only enforce at the curb if a resident places a covered electronic item in front of their single-family home in violation of the MSW disposal ban. At the same time NYSDEC has little or no enforcement presence within New York City to ensure compliance as well.

Robert Lange was the prime architect of NYC’s Recycling Program and the director of the Department of Sanitation’s recycling program for twenty years.  Prior to leaving city service, Mr. Lange was responsible for the Office of Beneficial Reuse Planning, Infrastructure Development & Management, within the Bureau of Solid Waste Management of the New York City Department of Sanitation. He recently accepted a position as the Commissioner of a Solid Waste Authority on Long Island. He can be reached at [email protected].

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