Proposed Changes to New Jersey E-Waste Law Could Expand DEP’s Reach, Increase Manufacturers’ Burdens
Product Stewardship & Sustainability Report
On December 17, 2015, the New Jersey General Assembly passed a number of controversial amendments1 to the state’s Electronic Waste Management Act (E-Waste Law)2 that could impose significant additional burdens on manufacturers of a wide range of consumer products and allow for an unprecedented expansion of the New Jersey Department of Environmental Protection’s (DEP) authority over end-of-life product stewardship in the state. Consumer product manufacturers and trade associations lined up to criticize the legislation after it was introduced in the Senate earlier this year, and it appears that some, but not all, of the most objectionable provisions were removed by the General Assembly Appropriations Committee when it took up the legislation, Assembly bill A4763, on December 10.3 These changes followed those made on December 7 during a second reading on the Senate floor of an identical Senate bill, S2973 Senate Substitute.4 Below is a short summary of the existing E-Waste Law and some of the key provisions in the bills that are causing so much heartburn in Trenton and elsewhere.
Background on New Jersey’s E-Waste Law
Like many states, New Jersey’s E-Cycles program requires manufacturers of “covered electronic devices” (CEDs) to register with the state, pay annual registration fees, and submit a plan to the state showing how they will provide consumers with the opportunity to recycle CEDs free of charge. Under the current New Jersey E-Waste Law, CEDs include only televisions, computer monitors, laptops, telephones, and a few other electronic devices. Each manufacturer is obligated to provide for the recycling of a minimum amount of CEDs, by weight, in a given year, and ensure that there is at least one collection location in each county in the state for consumers to drop CEDs off for recycling.
The Proposed Legislation
As most recently reported out of the Senate and the Assembly, S2973/A4763 continues to contain a number of important changes to the current E-Waste Law, and a key theme throughout continues to be the expansion of the reach of DEP’s E-Cycles program. This expansion would be achieved in at least four ways:
1. Expansion of definition of “consumer.” The legislation proposes to expand the definition of “consumer” to include any “State entity, school district, or local government unit.”5 Such entities could potentially increase the volume of CEDs deposited at collection sites and increase manufacturers’ costs of running their programs. In addition, the proposed expansion shifts the emphasis of the E-Waste Law from providing New Jersey residents and households with a convenient means of disposing of their CEDs—a means that would otherwise not be readily available to them—to requiring manufacturers to bear more of the burden of the state’s electronic waste management operations.
2. Expansion in number of collection locations. The legislation would replace the one county/one collection site requirement with the requirement that manufacturers provide a “sufficient” number of collection locations throughout the state.6 The legislation does not provide any metric to cabin the scope of DEP discretion in determining what constitutes a sufficient number of collection locations, thereby imposing potentially onerous requirements on manufacturers and potentially weakening the efficiency of existing collection networks.
3. Authority to create state-run program. The legislation would give DEP the authority to establish a state-run CED collection and recycling program.7 The program would have specific convenience requirements (e.g., 90% of consumers must be within 15 miles of a collection location), and small CED manufacturers (those whose national market share of CED sales is less than 10%) would be required to join unless they participate in a private recycling program with other manufacturers whose market share collectively is greater than 10%. A state program would potentially be more expensive to operate, and manufacturers would likely have little control over recycling costs and the quality of the recycling vendors and little contractual protections regarding potential liability should anything go awry during collection, recycling, and/or disposal of CEDs.
4. Expansion of definition of “covered devices.” The legislation proposes to add printers, fax machines, and cell phones to the list of products governed by the Act, but it deleted a provision in an earlier version that would have given the DEP discretion to add to the list of “covered electronic devices” those devices that: (1) are “used in conjunction with a covered electronic device”; (2) “contain materials that may harm the environment or the public health if disposed of as solid waste”; or (3) that “may have economic value or its collection and recycling may have a positive impact on the economics of electronics recycling.”8 The provisions quoted above could have included a wide range of items, including batteries and even items that would not ordinarily be considered “electronic” devices at all. At the end of the day, the only requirement would have been that the product potentially poses environmental concerns upon disposal. Outside of the exclusions noted above, DEP would thus have had very wide latitude to add more products to be covered under its purview and to require additional plan submissions, require additional fees, and impose additional agency oversight.
Perhaps most importantly, however, and despite all of these expansions to the current E-Waste Law, both the Assembly and the Senate nevertheless rejected a provision in their respective bills that would have greatly expanded DEP’s enforcement authority by allowing DEP to recover costs for the cleanup of any CEDs that are “improperly abandoned, discarded, or otherwise disposed of on the lands or waters of the State,” regardless of whether the manufacturers are responsible for the CEDs or not.9 This provision would have been problematic because it basically would have put manufacturers on the hook for cleaning up CEDs illegally dumped by bad actors anywhere in the state.
A4763/S2973 is sure to continue to attract a lot of attention from manufacturers, recyclers, and others who have a stake in the ongoing success of the E-Cycles program. Manufacturers in particular are likely to resist many of the bills’ changes as unworkable, impractical, and overly burdensome. The latest amendments suggest that the Legislature is becoming somewhat more sensitive to industry concerns. Whether this sensitivity continues remains to be seen. Stay tuned.
1 A4763, First Reprint, passed by General Assembly on third reading (A4763).
2 N.J. Rev. Stat. § 13:1E-99.94 et seq.
3 A4763, First Reprint (reported out of the Assembly Appropriations Committee December 10, 2015).
4 S2973 Senate Substitute, First Reprint (reported out of the Senate December 7, 2015) (S2973).
5 A4763/S2973, Section 2.
6 Id., Section 5.
7 Id., Section 6.
8 Id., Section 2.
9 Id., renumbered as Section 10(b).