Legal Alerts Jul 01, 2019

CalRecycle Releases Revisions to Organic Waste Regulations

Local Government Agencies Have Until July 17 to Comment

CalRecycle Releases Revisions to Organic Waste Regulations

The California Department of Resources Recycling and Recovery released revisions to the proposed regulations to reduce organic waste in landfills. Senate Bill 1383 directed CalRecycle to adopt regulations to reduce organic waste by 50 percent from its 2014 baseline level by 2020 and 75 percent by 2025. SB 1383 also requires the regulations to recover, for human consumption, at least 20 percent of edible food that is currently thrown away.
 
Although the proposed regulations would not take effect until Jan. 1, 2022, cities, counties and special districts providing solid waste handling services should review the revisions to the proposed regulations and provide public comment during the comment period that ends July 17 at 1 p.m. All related rulemaking documents and information on how to submit public comment can be found here.
 
Local agencies must implement programs requiring organic waste generators (those who initially create organic waste) and haulers (those who transport solid waste to a solid waste facility) to comply with CalRecycle regulations, or else face hefty penalties or enforcement action.
 
The revised regulations incorporate the feedback from the 45-day public comment period to the original proposed regulations issued on Jan. 18. A summary of the original proposed regulations were discussed in an earlier Legal Alert. Below are some of the key revisions affecting local agencies.
 
Performance-Based Source-Separation
A local agency can satisfy the minimum standards for organic waste collection services through performance-based source separation instead of transporting mixed organic and non-organic waste to a facility that processes and recovers organic waste content. The local agency would have to:

  • provide a three-container waste collection service to 90 percent of waste generators,
  • provide automatic enrollment for new customers,
  • transport the separated waste to a designated source-separated organic waste facility and
  • ensure that the organic waste in the gray container does not exceed 25 percent annually.

 
Local agencies that use performance-based source separation are exempt from requirements that apply to mixed waste, such as: organic waste recovery, contamination minimization requirements, recordkeeping, annual reporting, education and outreach, and other specified requirements. Local agencies would still have to comply with edible food recovery requirements.
 
Minimizing Container Contamination
The revised regulations provide that local agencies must randomly inspect waste containers for prohibited container contaminants for each collection route on an annual basis instead of a quarterly basis. Alternatively, local agencies can instead conduct two waste evaluations annually that are six months apart. Each evaluation must include 0.5 percent of the weekly tonnage and 25-40 samples, depending on the number of waste generators on the collection route, from all container types except for gray containers.
 
Container Color Requirements
The revised regulations change the latest date to comply with container color requirements. Containers purchased before Jan. 1, 2022 do not have to comply with color requirements until the end of their useful life or Jan. 1, 2036, whichever is earlier. The revised regulations modified the colors allowed for a two-container collection service to include either a green and gray container or a blue and gray container. The revised regulations also modified the colors allowed for a three-container collection service when a local agency adds another source separated container for organic waste:

  • the food waste container color changed from yellow to brown,
  • a split blue container for recyclables must use a darker blue for organic recyclables and a lighter blue for non-organic recyclables and
  • for any other container, any color not in conflict with other requirements may be used.


Acceptable Organic Waste
The revised regulations specify that local agencies may authorize collection of compostable plastics and/or plastic bags with organic materials inside green containers. The revised regulations clarify that local agencies can still also collect yard waste without a container, such as in street piles.
 
Waivers
Eligible jurisdictions can obtain waivers from organic waste collection requirements from CalRecycle. The revised regulations expand the coverage of low population waivers to include incorporated cities with a population of less than 7,500 (instead of 5,000) people and counties with unincorporated areas of less than 75 (instead of 50) people per square mile. The revised regulations extend the period a population waiver is valid from 2 to 5 years. A population waiver is renewable up to 180 days before its expiration. The revised regulations add an elevation waiver that allows a city or county located at an elevation at or above 4,500 feet to obtain a waiver from food waste separation requirements.
 
Emergencies
In emergencies, local agencies are not required to comply with organic waste recovery requirements. The revised regulations provide that a local agency is not required to separate or recover organic waste removed from homeless encampments or illegal disposal sites, but must record the amount removed when it exceeds 100 tons. In addition, a local agency is not required to recover organic waste subject to quarantine by the California Department of Food and Agriculture.
 
Mandatory Outreach Materials
Local agencies must provide education and outreach information to organic waste generators. The revised regulations state that the information must be provided in another language in various mediums depending on the population size of “non-English speaking residents.”
 
Organic Waste Recycling Capacity Planning
The revised regulations provide that cities that fail to respond to a county’s request for information within 120 days for capacity planning are subject to penalties.
 
Fines
The proposed regulations require local agencies to impose fines against noncompliant generators and haulers. Originally, the base penalties ranged from $50 to $500 per violation, per day. The revised regulations delete the “per day” language and limit the base penalty to each offense. In contrast, the administrative penalties CalRecycle can impose on local agencies for noncompliance with CalRecycle regulations still range from $500 to $10,000 per day, for each type of violation.
 
Revised Reporting Dates
The revised regulations state that counties shall report to CalRecycle on Aug. 1, 2022 (instead of Feb. 1, 2022) on capacity planning for the period covering Jan. 1, 2022 through Dec. 31, 2024. Local agencies shall report to CalRecycle on April 1, 2022 (instead of Feb. 1, 2022) regarding their adoption of an enforceable ordinance and compliance with organic waste requirements.
 
Implementation Record
Local agencies must maintain all records for compliance, in addition to ordinances, contracts and agreements. Records must be updated within 60 days (instead of 30 days of a reporting period) and made available to CalRecycle within 10 business days upon request (instead of 1 business day upon request). Records still must be retained for 5 years.
 
CalRecycle Oversight of Local Agencies
Under the revised regulations, if a local agency’s ordinance is inconsistent with CalRecycle regulations, the agency has 180 days (instead of 90 days) to cure the deficiency or face enforcement action. If a Corrective Action Plan is issued due to inadequate capacity of organic waste recovery facilities, CalRecycle may extend the Plan by 12 months if it finds that the local agency demonstrated substantial effort to comply.
 
For more information about these regulations, please contact the authors of this Legal Alert listed at the right in the firm’s Municipal Law practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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