Recology Will Get New CRV Trial

By John Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to wasting and Zero Waste.

On June 17, 2014, a San Francisco jury found that Recology made a false claim for CRV funds to the City and County of San Francisco and owed it $1,366,938.45. In a new twist to the case, on October 30, 2014, Judge James McBride of the Superior Court in San Francisco, who presided over the trial, vacated the jury verdict in granting Recology’s motion for new trial.

Judge McBride ruled that there was insufficient evidence to support the jury verdict and explained that “[t]he claim required proof that some City money was part of the Diversion Incentive Account from which the false claim was paid. No such evidence was presented at trial nor was there any evidence presented from which a reasonable inference that the account included City money could be drawn.”

NCRA News attempted without success to obtain the court filings on this motion from plaintiff Brian McVeigh’s counsel. They are not available online. This author, having not observed the trial or being familiar with the evidence can offer no opinion on the result. As one who has tried many civil cases, it is very unusual for a judge to vacate a jury verdict.

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Board Meeting Agenda, 11/20/14


Board of Directors Meeting, 11/20/14

5:30pm Food served
6:30pm Meeting called to order, all presumed to be present
6:32pm Approval of Minutes (McKaughan)
6:34pm Approval of Agenda (McKaughan)
6:40pm Report by Committee: (15-20 mins each)

  1. Zero Waste Advocacy (Brooms/Boone to report)
    • Report out from ZWAC Committee mtg on Wed Nov 12
    • Compost outreach in apts (Brooms)
  2. Food Recovery outreach in Berkeley/Oakland (Moore)
    Activities (Figueiredo, Chair Substitute while we find replacement)

    • Debrief from ZFWF & Feeding 5K: venue, food, speakers, topic, should NCRA host ZFWF again?
    • RU & NZWW: Coordinator for RU? Confirm date/location? What other activities/committees?
    • RU at 20 – how do we capitalize on this? Also how to decide how much we should charge?
    • Call for speakers for CRRA – mini-RU again?
  3. Update on Race to Zero (McKaughan)
    Membership (Connolly, Shapira)

    • Debrief Green Festival booth – effective at outreach for new members? What should we do differently if anything?

Annual members mtg in Jan – ideas for how to attract new members and engage current membership?
Newsletter Committee (Sinnott)
7:55pm Treasurer’s Report (Robinson/Sinnott)

  • Status of 2014 Budget
  • Update on finances & taxes for 2013 & 2012

Are we up to date on issuing reimbursements and donations?
8:15pm Actions Requiring Expenditures

  • NCRA getting a loan to take it to the next level? (McKaughan)
  • Request to donate to CAW for bag ban fight?

Payment for Sinnott for accounting support (Sinnott)
8:30pm Actions Requiring Discussion/Policy Decisions:

Having meetings at the David Brower center? (McKaughan)
8:35pm Administrative Activity:

  • Update on new website roll-out (Sinnott)
  • Update on elections – board members need to submit ballot statements

Status of hiring new Admin Coordinator – discussion about role of Admin Coordinator (McKaughan)

Serve on The NCRA Board!

Want to be at the heart of a thought-leading recycling organization? Other organizations are working for Zero Waste now, but NCRA has been leading in that direction for many years, is still out front, and is still on the move. You can help develop the cutting edge by serving on the Board of Directors.

NCRA will have six board positions open in the January election. It’s a two-year working post. Attendance at nearly all ten meetings a year is important, as is between-meeting work on at least one committee. Meetings move around the greater Bay Area. Phone participation is possible at some but not all locations especially at tour sites. Directors discuss issues, hear debates, and influence regional and national recycling thinking. They track and comment on legislation; listen to leaders in the regional industry; work on behalf of colleagues who need a boost; tackle issues that can’t be ignored; tour facilities; and talk business with operators. Benefits include free entrance to the annual Recycling Update.

Read about NCRA’s large vision in its bylaws, Article III: Purpose, Principles, Policies and Objectives. (Need Bylaws link)

You can be a part of the action! To run for the board, submit a campaign statement of up to 200 words. Say who you are and why you’d like to serve. Here are last year’s statements and 2013’s.

By midnight December 6, notify NCRA that you want to run. By midnight December 10, send in your statement with contact information to It will be presented to the members electronically. Voting will be conducted electronically from January 5-14. Results will be announced at the Members’ Meeting on January 15.

So help build your industry! Have fun with your colleagues! Get your statement in!

Federal Court Upholds Alameda County Pharma EPR Ordinance

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

Not unexpectedly, a 3 judge panel of the Ninth Circuit Court of Appeal unanimously agreed that Alameda County’s pharma EPR ordinance is constitutional in the case of PRMA v. County of Alameda, rejecting claims by drug manufacturers and their allies that the ordinance violated the Commerce Clause. The Court affirmed a Judgment to the same effect by Judge Richard Seeborg of the Northern District of California.

According to the Court, “pursuant to the Ordinance, manufacturers must set up disposal kiosk sites throughout (Alameda County). The kiosks will consist of disposal bins located in areas ‘convenient and adequate to serve the [disposal] needs of Alameda County residents.’ Manufacturers must also promote the stewardship program to the public via ‘educational and outreach materials.’ After collection, the prescription drugs must be destroyed at medical waste facilities. The manufacturers are free to individually operate separate product stewardship programs or to jointly operate a program with one or more other manufacturers. If manufacturers choose to operate a program jointly, the Ordinance requires that the program’s costs be spread fairly and reasonably among the manufacturers. The manufacturers may run the stewardship program themselves, or they may pay a third-party to operate the stewardship program on their behalf. Assuming the manufacturers jointly operated a stewardship program, the start-up costs would approximate $1,100,000.”

County estimated that, “a total annual cost to each manufacturer between $5,300 and $12,000.” The Court accepted that County-wide sales of prescription drugs in 2010 were $965 million and that sales have not declined since then.

The Commerce Clause of the US Constitution has been the lynchpin of many cases involving flow control- the lawfulness of a local jurisdiction commanding that solid waste be disposed at specific facilities. The test for whether a law violates the Commerce Clause generally is “When a state statute directly regulates or discriminates against interstate commerce, or
when its effect is to favor in-state economic interests over out-of-state interests, [the Court has] generally struck down the statute without further inquiry.

When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the Court has] examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.”

The Ninth Circuit found that the Ordinance did not implicate either test. Although the Court analyzed each test carefully as applied to the Ordinance, most telling was the Court’s dismissal of most of the challengers’ arguments as not supported by any legal authority. Nor did the Court doubt that the Ordinance legitimately furthered the County’s interest in safe disposal of post-consumer prescription drugs. Interestingly, while prescription drugs sold across state lines clearly are part of interstate commerce under the Commerce Clause, the Supreme Court has never clearly stated why “solid waste” is an article of interstate commerce.

From the vantage of this author, this was a frivolously-filed case doomed from the start designed to impose cost and delay on the County. The Ninth Circuit should sanction the plaintiffs in this case and order them to pay all of the County’s fees and costs in this litigation.

Among the amici supporting the County were the League of California Cities and NRDC.