Producer Responsibility through the Prism of Political Necessity (Part 2)

This is the second part of a two-part series. For part one, go here.

Since the adoption of the New York state law, a number of challenges to success have arisen both operationally for the recovery of e-waste and conceptually for the continued integrity of the original producer responsibility structure and intent of the law. These challenges have played themselves out differently depending on the geographic location within the state. Speaking more broadly, they can be reduced to two basic sets of circumstances, cities of one million or more in population and everywhere else.

New York State Cities and Counties Other Than New York City

Outside of New York City many challenges have arisen for solid waste management professionals since the state law was enacted. Some are inherent in the law itself and some are a consequence of local jurisdiction attempts to ease the burden on consumers by accepting some of the responsibility that should have been fully borne under the law by manufacturers.

Some solid waste management professionals also fell victim to the same commodity trap that many of their predecessors had with regard to traditional recyclables, believing that the initial value attributed to post-consumer electronics at the passage of the new law would be sustained over time. In that regard, they perceived the acceptance of e-waste from the public as a new revenue stream.

At the start of the law in New York State, the various e-waste recyclers, the middlemen between consumers and manufacturers, were more than willing to pay something for the right to source e-waste.

This lead to the belief on the part of many solid waste managers that such a circumstance would likely continue; and as a result the doors of most government-operated solid waste facilities opened to consumers throughout the state to drop off their post-consumer electronics. Manufacturers welcomed this generosity on the part of government-operated solid waste facilities, as it filled a gap in convenience for the public, particularly for large screen TVs. Unfortunately, the willingness on the part of e-recyclers to pay for post-consumer e-waste lasted only so long as market demand exceeded the available supply.

Once the supply exceeded the demand, e-recyclers began charging to remove e-waste. This abrupt change in financial circumstances left solid waste facility operators with a new taxpayer burden to cover with existing operating funds. In New York State, this is particularly a challenge because of the tax cap procedure that has been imposed upon local governments by New York State law.

While not precisely a cap, the law is structured to require local government to go before the public to raise taxes to cover expenses and to achieve a majority vote for approval.

The circumstances at the moment for the municipalities and counties outside New York City and within NY State are that it is no longer possible to find an e-waste recycler that will accept e-waste at no cost or for a nominal return per pound. Most municipalities and county solid waste organizations, if utilizing a reputable and reliable e-recycler, are now paying per pound to have e-waste removed.

The cost to municipal and county facilities includes the packaging of materials to prepare e-waste (Gaylord boxes; pallets and shrink wrap), the labor to prepare the e-waste for shipment, and the transport cost for the e-recycler.

While NYSDEC does provide partial reimbursement for the costs incurred by municipalities and counties, such reimbursements are capped at 50 percent of out-of-pocket expenses and only apply to a portion of the expenses. Obviously this is a less than ideal situation for the outcome of a producer responsibility law, where a significant portion of the responsibility is now back on all taxpayers, rather than manufacturers and the consumers of their products. In fact, the law would be better categorized now as a partial producer responsibility law.

Big Apple Challenges

Bill de Blasio, the original sponsor of the producer responsibility law in New York City when he was a city councilman, is now the mayor.

As with many things in the Big Apple, the biggest challenge to the continued integrity of the producer responsibility intent of the New York State Electronic Equipment Recycling and Reuse Act is politics, which often makes for both strange bedfellows and irrational program design.

While the e-cycle program has been successful in addressing the convenience needs of residents living in apartment buildings and those areas of the city without adequate access to a vehicle, there are parts of New York City where no level of service will be sufficiently adequate to satisfy residents’ expectations, short of curbside service. Ironically, this expectation comes from the portions of New York City most well known for the collective political belief, as demonstrated in the voting booth, in smaller government.

A Mighty Wind from the Hinterlands

A significant increase in the amount of post-consumer electronics, particularly large screen TVs, abandoned at street corners and in empty lots, began with the institution of the disposal ban on post-consumer electronics, part of the New York state law. This phenomenon was most pronounced in the borough of Staten Island, where undefined or undeveloped areas are more common than in the other more densely developed and populated boroughs of New York City.

Staten Island is New York City’s smallest borough by population. It is the borough that, after the David Dinkins administration of the early 1990s, has taken on greater importance in the political life of New York City. Staten Island is often characterized as the Republican political tail of New York City mayoral politics, that close to election time often winds up wagging the Democratic mayoral dog. Staten Island is the political repository of New York City’s Republican majority; an island of Republicans off the shores of a mainland primarily populated by Democrats. Nonetheless, at election time, the Democrats that dominate New York City politics often look to Staten Island for enough crossover swing votes to assure the Democratic mayoral candidate an overwhelming election victory.

So unlike the rest of NY State where solid waste facilities willingly opened their doors to post-consumer electronic waste in search of a new revenue stream, up until 2016 New York City had both retained the integrity of the state producer responsibility law but at the same time provided some additional opportunities for New Yorkers to get rid of their old electronics at no cost to taxpayers.

Beginning in the spring of 2016, Steven Matteo, the Staten Island Republican Minority Leader of the New York City Council, began leading the charge to have DSNY begin collecting curbside electronics covered by the New York state law. He understands that this service, if initiated, is not going to be paid for by the manufacturers of consumer electronics but rather by all New York City taxpayers. Even though it had already been clearly demonstrated, as part of the attempt by

New York City to first pass its own electronics producer responsibility law in 2008, that utilizing sanitation workers to perform such a service was both cost prohibitive and that providing such a service at all was counter to the logic behind the enactment of a producer responsibility law, Mayor De Blasio agreed to pilot the service under the guise of OneNYC, New York City’s sustainability plan. Subsequently, as we advance closer to the upcoming mayoral election campaign, City Hall has announced its intent to further expand the pilot curbside collection program for electronics beyond Staten Island.

The service is being provided as an on-call service to keep costs contained. But even taking that into account, the absurdity of such a service is demonstrated by the given cost of sanitation workers’ salaries; the typical cost per ton for collection; and the amount of ground the collection truck will have to travel to perform its collections.

The “pilot” program’s current cost per ton collected exceeds that of refuse collection, for a material targeted by legislation to reduce the burden upon taxpayers. In some instances, the cost to pick up a particular electronic item will no doubt exceed the item’s original brand new purchase price!

Clearly the history of the New York State Electronic Equipment Recycling and Reuse Act has highlighted the challenges that are faced by government when attempting to hold manufacturers accountable under a producer responsibility law.

Undermining such efforts are some local divisions of government that, in their attempts to be responsive to local constituents’ needs, or desirous of a new revenue stream, have stepped in to take responsibility where they clearly shouldn’t have done so. In addition, the history shows how difficult it is for politicians to explain to their local constituents that providing them with additional service using tax revenues is counter to the logic of a producer responsibility law, when all the constituent cares about is being free of the unwanted item.

In addition, environmental organizations like NRDC, which played a role in the first efforts at penning a producer responsibility law, have been willing to accept this transformation so long as the e-waste continues to be recovered rather than pushing back on these attempts to transfer responsibility back to the general tax base and undermining the intent of the producer responsibility law.

The various electronics producer responsibility laws that have been passed in the U.S. in recent years are the first attempts by governments to share the escalating cost of solid waste management with the originators of the products that must be managed post-consumption.

Based on this first attempt to hold industry accountable, it is clear that greater effort needs to be made on the part of the advocates for producer responsibility legislation to ensure that whatever bill is finally passed into law retains the original intent of a producer responsibility law, wherein disposal costs are borne by the product manufacturer and product consumer rather than simply all tax payers, and at the same time the law ensures that the targeted items are successfully recovered.

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, 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].