ANTITRUST ISSUES RAISED OVER NEPSI FINANCING SYSTEM
Industry and govt. stakeholders expressed cautious optimism on reaching agreement on financing model for collection and recycling of electronics waste (e-waste) as they headed into what they acknowledged would be crucial penultimate leg of National Electronics Products Stewardship Initiative (NEPSI) meetings in St. Paul June 24-25. CE industry, faced with prospect of maze of legislative initiatives in states, is hoping meeting will address its concerns over front-end (costs included in purchase price of product) financing system for collection and recycling of e- waste. “From the industry’s perspective, we have many legal and business concerns before we can move forward with that kind [front-end] of model,” EIA Dir.-Environmental Policy Heather Bowman told us. Representatives of state and local govts. that are concerned about bearing the costs of dealing with rising pile of e-waste said failure to reach agreement would mean increased momentum toward legislation. More than 19 states already are considering bills, ranging from collection mandates to disposal bans, and numbers would rise if national agreement isn’t reached.
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Industry faces legal constraints in adopting front-end system, Bowman said. If companies decide to have uniform costs included in price of product, thereby increasing price, they could be in violation of antitrust laws, she said. “Companies cannot collude to increase the price of products and will also be exposed to price-fixing charges.” Referring to push for front- end model in Europe, Japan and other countries, Bowman said situation in U.S. couldn’t be compared with those countries because they had different laws. At last NEPSI meeting, stakeholders agreed to examine whether front-end system would work in U.S., she said. One way of doing it would be to set mandates through federal law, Bowman said, but in “current economic conditions and political climate I don’t know whether it’s politically viable.” Industry is opposed to state-by-state solution to management of e-waste, Bowman said, and was looking for comprehensive solution. She disputed arguments that industry had agreed to look at front-end model only after momentum for legislation gathered in states. Asked whether NEPSI target of achieving nationwide plan for e-waste management and enabling legislation by last meeting in Sept. was realistic, she said it was “optimistic target and we hope that we can have something by then. We have made a lot of progress so far and hope that our next meeting [June 24] will take us a step closer to understanding what a viable [financing] model is.”
Industry’s legal and business concerns over front-end system need not be stumbling block in movement toward national agreement, said Scott Cassel, dir. of Mass.-based Product Stewardship Institute. If there isn’t significant movement toward such agreement at next meeting, “we will continue to see movement toward legislation” at state and local levels, said Cassel, who represents govts. in NEPSI. Business and legal concerns shouldn’t hinder progress if it could be determined what federal legislation needed to do and how antitrust concerns were to be addressed, he said. Main issue is whether fee should be “visible” to consumer, he said, and reason why industry wants fee to be visible is that it wants to recover costs. “The key here is that the industry should be given a comfort level in terms of cost recovery and government groups provided assurances on what products will be covered and performance standards,” he said. “Both sides will have to be given comfort levels in different areas,” Cassel said: “We hope to have a semblance of an agreement [at June 24 meeting].”
“I think it is an honest issue,” said Sego Jackson, principal planner for Snohomish County, Wash., when asked about industry’s antitrust concerns about front-end system. But industry should take steps to address concerns instead of merely raising them, said Jackson, who represents local govts. on NEPSI. “They have lawyers and trade associations” who should help them deal with issue, he said. Much good work had been done by NEPSI subgroups, which gave rise to hope that outlines of agreement would emerge by Sept, he said. Asked whether there was provision for extending NEPSI process beyond Sept., he said not many govts. wanted extension and that’s why there was pressure for getting something in place by Sept.