Governor Signs Off on Amendments to New Jersey’s Electronic Waste Management Act
On January 9, 2017, Governor Christie signed into law a bill aimed at fortifying New Jersey’s existing Electronic Waste Management Act, by ensuring that manufactures of certain consumer electronics shoulder the burden for recycling all such devices actually collected in the state during a calendar year. While this new law is technically a recast of the existing statutory scheme, the changes it affects are, in many ways, transformative. This blog provides a broad description of the previous law, the apparent conditions which prompted its revision, and the key innovations of the new law.
Under the previous law, in effect since 2008, manufacturers of covered devices were obligated to provide for the collection, transportation, and recycling of their “return share in weight” of certain consumer devices collected throughout the state. Devices covered under the law were personal and desktop computers, monitors, and televisions. A manufacturer’s “return share in weight” was determined by the Department of Environmental Protection (“DEP”) who would estimate the weight of collected devices attributable to a particular brand for the coming year using a “statistically valid,” annual-sampling of devices collected in the preceding year. There was, however, a distinction for manufacturers of televisions; their obligation was quantified on a “market share” basis, using the “best available public data” to express their individual national sales as a percentage of overall national sales and applying that percentage to the weight of televisions collected.
While the earlier program was designed to hold manufacturers responsible for recycling their share of discarded electronic waste in a given year, many lawmakers and advocates believed it had proven ineffective, pointing to overburdened municipalities and counties facing growing stocks of unrecycled devices. The statement accompanying the bill explained of its predecessor that, “[t]he data required to perform the return share calculation [was] not widely available,” and the DEP’s determinations had generally “underestimated the actual amount collected.” Targeting such concerns, the new law modifies the state’s approach to recycling electronic waste in certain key ways.
First, it broadens the scope of qualifying waste by: (1) adding desktop printers and fax machines to the existing list of “covered electronic devices”; and (2) expanding the definition of “consumer” to include state entities, school districts, and local governmental units. Notably, however, the previous law’s exclusion of certain telephones has actually been replaced with an even broader exclusion for “any handheld device used to access commercial mobile data service or commercial mobile radio service.”
The new law’s second key feature is that it eliminates the distinction between televisions and other covered devices and calculates a covered manufacturer’s obligation using a single, “market share in weight” approach, irrespective of device. Put simply, this means the DEP will assign all covered manufacturers a “market share.” A manufacturer’s market share will be determined yearly, using “the best available public data” to express their individual national sales of covered devices as a percentage of total national sales of all covered devices. That percentage will then be applied to the total weight of covered devices collected in the State during the preceding year in order. Importantly, however, the resulting figure will only constitute an estimate of that manufacturer’s “market share in weight” for the coming year; that estimate is subject to adjustment by the DEP based upon the total weight of covered devices actually collected by year’s end. This flexibility, proponents believe, will ensure that all covered waste actually collected will be fully accounted for.
One of the most significant additions of the new law is that it empowers the DEP, if it so chooses, to establish a “Statewide standard program” to collect, transport, and recycle covered electronic devices. If the DEP exercises this power, any covered manufacturer whose market share is less than 10% would be required to fulfill its obligation by participating in the program. Manufacturers with a market share exceeding 10% would have the choice to either participate in the Statewide standard program or submit their own plan for approval by the DEP. Until the DEP opts to establish such a program, however, all covered manufacturers issued a market share greater than .01% are expected to submit a statutorily compliant plan to the DEP (either individually, or as part of a group) to satisfy their obligation.
Finally, in addition to certain provisions aimed at streamlining the DEP’s ability to monitor and track collection data, the new law allows the DEP to assess a per pound fee for any failure of a covered manufacturer to collect, transport, or recycle covered electronic devices in accordance with the law’s provisions. Any such penalties assessed, along with all revenues raised, will be deposited into an “Electronic Waste Management Fund” and used to support the costs of the program.
While it remains to be seen if the revised law will meaningfully address the apparent shortcomings of its predecessor, there can be no question that it constitutes a significant shift in the state’s approach to electronic waste. We will continue to monitor the program as it begins to take shape.