Legal Alerts Oct 11, 2019

Another Set of Organic Waste Regulations Revisions Released by CalRecycle

Changes to Proposed Regulations Could Impact Local Agencies that Collect or Generate Organic Waste

Another Set of Organic Waste Regulations Revisions Released by CalRecycle

The California Department of Resources Recycling and Recovery released its second set of revisions to the proposed regulations to reduce organic waste in landfills.
 
The revisions are in response to Senate Bill 1383, passed in 2016, which 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.
 
The revised regulations incorporate the feedback from the 45-day public comment period to the a first set of revised regulations issued June 17. A summary of the original proposed regulations and the June 17 revised regulations were discussed in earlier Legal Alerts. Below are some of the key revisions affecting local agencies.
 
Fines
The revised regulations delete the table of minimum fine amounts that local agencies would have been required to impose against noncompliant generators and haulers. Instead of minimum fine amounts based on the level or severity of an offense, the revised regulations simplify the fine schedule based on whether the offense is a first, second or subsequent violation. The revised fine amounts are: $50-$100 for the first violation, $100-$200 for the second violation and $250-500 for the third or subsequent violation.
 
The revised regulations also delete the table of penalties CalRecycle can impose on local agencies for noncompliance with CalRecycle regulations. Instead of fines based on the level or severity of an offense, the revised fines are based on whether the offense is a minor, medium or major violation. The revised penalty amounts per violation per day are: $500 to $4,000 for minor violations, $4,000 to $7,500 for moderate violations and $7,500 to $10,000 for major violations. Major violations include the failure of a local agency to:

  • adopt any ordinance or enforceable mechanism for organic waste disposal reduction and edible food recovery,
  • include a provision in an agreement that requires a hauler to comply with CalRecycle regulations,
  • adopt an edible food recovery program,
  • have any implementation record,
  • enforce a policy that prohibits the recovery of organic waste or edible food and
  • report on its compliance with CalRecycle regulations.

 
Container Color Requirements
The previous version of the regulations required blue, brown, gray/black and green containers to include a lid in the same color. The revised regulations allow for an alternative method to satisfy the container color requirements when the body of a container is in the same color and the lid is in a specified color. For example, the following container color pairings are allowed:

  • The body is blue and the lid is blue, gray or black,
  • The body is brown and the lid is brown, gray or black,
  • The body is gray/black and the lid is gray/black and
  • The body is green and the lid is green, gray or black.

 
The revised regulations allow a local agency with a two-container collection service to separate organic waste in a blue container, with an additional container or a split container, by using a darker blue for organic recyclables and a lighter blue or other color not already designated for other materials for non-organic recyclables.
 
Minimizing Container Contamination
The proposed regulations allow for violation notices to a generator to be placed on a container. The revised regulations also allow for notices to be emailed to the generator or placed on the generator’s door or gate. Local agencies that provide a three-container or two-container waste collection service must conduct two waste composition studies each year in two distinct seasons. Local agencies that use a performance-based source separated collection service (as an alternative means to satisfy the minimum standards for organic waste collection services) must conduct two waste composition studies each year for blue and green containers, and once per quarter for gray containers. The revised regulations deleted the requirement that a waste composition study must include 0.5 percent of the weekly tonnage collected by the local agency.
 
Rural Jurisdiction Waiver
Eligible jurisdictions can obtain waivers from organic waste collection requirements from CalRecycle. A rural jurisdiction can obtain a waiver if its governing body adopts a resolution that includes a finding of the purpose and need for the waiver. The previous version of the regulations specified that a rural jurisdiction waiver is valid until Jan.1, 2025, or 5 years after CalRecycle determines that the statewide disposal of organic waste has not been reduced to 50 percent of the disposal level during the 2014 calendar year, whichever is later. The revised regulations change the date of Jan. 1, 2025 to Dec. 31, 2026.
 
Mandatory Outreach Materials
Local agencies must provide education and outreach information to organic waste generators. The prior version of the regulations stated that the information must be provided in another language in various mediums depending on the population size of “non-English speaking residents.” The revised regulations specify that the materials must be translated into any non-English language spoken by a substantial number of the public who are provided organic waste collection services by the local agency.
 
 Organic Waste Recycling Capacity Planning
The 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. However, the revised regulations specify that jurisdictions that have obtained a waiver from CalRecycle do not have to conduct organic waste recycling capacity planning for the first reporting period that covers Jan. 1, 2022 through Dec. 31, 2024.
 
Recovered Organic Waste Product Procurement Target
A local agency must annually procure a certain quantity of recovered organic waste products to meet a procurement target. The revised regulations require CalRecycle to recalculate the procurement target by Jan. 1, 2022 and every 5 years thereafter. Mulch was added to the list of products that count toward a jurisdiction’s recovered organic waste procurement target. Rural jurisdictions do not have to comply with the procurement targets until Jan.1, 2027.
 
Local Agencies May Also Have to Satisfy Requirements as a Commercial Edible Food Generator
A “large venue” that annually serves an average of 2,000 people per day of operation, such as an airport, fairground or other public facility, and a “large event” that serves more than 2,000 people per day of the event, such as a sporting event or flea market, are defined as Tier Two commercial edible food generators. Tier Two generators must comply with food recovery and recordkeeping requirements beginning Jan. 1, 2024. A local agency that is Tier Two must contract with food recovery organizations or services to recover edible food that would otherwise be disposed of, for human consumption. If the local agency is a large venue or food operator that does not provide food services, but allows for food to be provided, the agency must require food facilities operating at the event or venue to comply with edible food recovery requirements.
 
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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