Tech industry challenges e-cycling programs
Recycling advocates suspect such lawsuits are opening salvo in a bigger battle against state e-waste laws.
By Tam Harbert, Contributing Editor -- EDN, August 25, 2009
The high-tech industry is starting to fight back against what it calls onerous e-waste recycling bills.
Trouble is brewing on both the East and West coasts. In July, the Consumer Electronics Association (CEA) and the Information Industry Technology Council (ITI) filed a federal lawsuit against New York City over its e-waste recycling law and regulations. The lawsuit charges that the city’s e-waste program is unconstitutional. Among the suit’s charges are that the law exceeds the city’s authority in regulating interstate commerce, violates the rights to equal protection under the law, and violates due process. The city council passed the law in 2008. This spring, the department of sanitation issued regulations that required electronics manufacturers to file by July 31 detailed plans of how they would meet the regulations or face penalties of $1,000 per day. Because of the lawsuit, which was filed on July 24, that deadline has been delayed.
Meanwhile, a group of small companies is up in arms about Washington state’s e-cycling law. Although the Wall Street Journalreported that the group of companies, including ViewSonic and ToteVision, were threatening litigation, no lawsuit had been filed by press time.
Nineteen states have passed e-waste recycling laws over the last several years, and an additional 13 states – New York among them – are considering such laws, according to Barbara Kyle, national coordinator of the Electronics TakeBack Coalition. But New York City is the first city to pass its own law.
Industry spokesmen say the NYC program is unprecedented not only because it’s at the municipal level, but also because it imposes onerous – and unconstitutional – provisions.
“It’s the most costly, burdensome and environmentally harmful electronics recycling requirement in the world,” said Parker Brugge, vice president of environmental affairs and industry sustainability for CEA.
The regulations require electronics manufacturers to provide free pickup of items from consumers households and any organization with fewer than 50 employees. In a city of 9 million people, that’s an enormous burden, said Rick Goss, vice president of environment and sustainability for ITI. The lawsuit charges that this will result in environmental harm by “[requiring] hundreds of new trucks on city streets, increasing traffic congestion and exacerbating air and noise pollution and releasing additional carbon-dioxide emissions.” And the e-waste program will cost manufacturers more than $200 million a year, according to the suit.
The technology industry has complied with e-waste regulations in 19 states as well as with international regulations such as the European Union’s WEEE directive, said Goss. But in the case of New York City, “there were so many unique and unprecedented provisions in the law and the rule that went so far above and beyond what any other state does, that we felt we had no choice but to file this litigation.”
But Kyle of the Electronics TakeBack Coalition thinks the industry sees this as a potential way to overturn state e-cycling laws. “This lawsuit has very little to do with the New York City regulations,” she charged. Because the suit charges that the law is unconstitutional, “it is a wholesale attack by the electronics industry on the rights of state and local governments to legislate on producer take-back.” If the industry wins this suit, it could open the door for challenges to existing state laws, she said.
Goss maintained, however, that “we have no intention of pursuing any other legal action at this time.”
Kyle also said that major electronics and computer companies, none of which are plaintiffs in the lawsuit, are “hiding behind their industry associations.” Several major TV manufacturers, including Sony, Samsung, Panasonic, Mitsubishi, LG Electronics, and Sharp, filed declarations with the lawsuit, explaining the negative impact the regulations would have on their companies. But major computer companies, such as Hewlett-Packard and Dell, filed no such documents. Inquiries to both companies regarding their stance on the lawsuit went unanswered.
Brugge stressed that both ITI and CEA members support the lawsuit. “Just because we don’t have a bunch of named plaintiffs shouldn’t suggest to anyone that some member companies are OK with the requirements. They are opposed to this and squarely behind the lawsuit.”
However, the suit stresses the impact of the e-cycling program on small companies.
The registration fees, penalties and requirements to handle orphan products (products whose maker cannot be identified or who are out of business) are particularly burdensome for small companies, noted Goss. The lawsuit has a third plaintiff: ITAC Systems, Garland, Texas, has seven employees, about $1 million in annual revenue and is a member of neither CEA nor ITI. The specialized trackball manufacturer has no sales operations in New York City nor in the state. Yet under the provisions of the legislation it must file a plan and provide free pickup for its products plus a certain percentage of orphan products. The burden would cripple his company, said ITAC Chairman John Ernsberger.
One other small company filed a declaration with the New York City lawsuit. ToteVision, a 10-employee LCD monitor manufacturer in Seattle, is also among the group complaining about the Washington state law.
Bill Taraday, president of ToteVision, stressed that his company favors recycling and e-cycling, but maintains that companies like his are being victimized by the “one-size-fits-all” approach of many e-cycling regulations. “Instead of our small company paying its appropriate or proportionate share, the scales are tipped very heavily in the opposite direction, to the point where in Washington state, not only are we losing all of our profits but we are paying more than what our profits were for the period in question,” he said.
As these regulations proliferate, it’s getting harder and harder for all companies, but especially the smaller ones, to comply with the laws, noted Ken Stanvick, senior partner and co-founder of Design Chain Associates. The rules vary from state to state, he said, including different products and instituting different processes that manufacturers must follow. Meanwhile, “the federal government has continued to duck the issue,” he noted. “It’s getting a bit ridiculous as to what you have to do to sell a product or to exercise your producer responsibility in the United States.”
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Sounds like it may be time to refine the rules, like proportional support by volume of business, neighborhood dropoff/pickup points, and consumer penalties for not using the system as it is refined.
The Europeans sure aren't slacking off on the hazardous elements of e-waste. Federal blanket coverage shouldn't be far behind.
Philip Barnes-Roberts - 2009-24-10 22:12:00 PDT -
Without a national e-recycling law, we are all forced to deal with a patchwork of state laws that makes it onerous for everyone in the industry. If anyone's interested in seeing the current state laws,check out www.element-14.com
Janice Fleisher - 2009-3-9 12:15:00 PDT -
In Norway customers have to return old electrical equipment back to the store or to a recycling center. All companys producing or importing electrical equipment pay their share in a company called Elretur. Elretur then collect the garbage and recycle it.
We have used this system in Norway for ten years with no major issues.
FroBe - 2009-27-8 00:22:00 PDT -
It's about time we started fighting back. Politicians have no clue what these laws and regulations really mean to our industry. Every company out there should make a stand and tell them to worry about homelessness or crime or the economy for crying out loud, not recycling Jim Smith's old 32" color idiot box...
Jim Smith - 2009-26-8 08:23:00 PDT -
Similar problem in the EU. Too bad US lawmakers didn't learn from them.
What part of COMMON MARKET or INTERSTATE COMMERCE is so hard to understand ? Small companies are willing to pay their share - but this can only work with a single registration valid across the US / the EU.
Pascal Dornier - 2009-25-8 14:15:00 PDT
