New Organic Waste Processing and Food Waste Recovery Rules Moving Forward

May 10, 2020

On April 20th CalRecycle released what it expects to be the final regulations implementing SB 1383, California’s groundbreaking law to reduce disposal of organic waste at landfills by 75 percent from 2014 levels by 2025. The law is an important part of the State’s strategy to reduce methane and greenhouse gas emissions. Instead of focusing on emissions at landfills, SB 1383 directed CalRecycle to develop regulations requiring residents and businesses statewide to reduce the amount of organic materials delivered to landfills; the regulations are to be administered and enforced by local governments. 

The release of the final draft regulations is an important reminder that local agencies must plan to comply by January 2022. That deadline is mandated by statute and thus far CalRecycle has not given any indication it will defer the deadline due to the COVID-19 public health emergency. (On April 29 the League of Cities and local government organizations asked CalRecycle to extend the comment period for this and other rulemakings and to delay implementation of any new major regulations until at least six months after the state declares the COVID-19 emergency is over.)  

The new rules, formally known as the Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations, are extensive and touch on topics too numerous to fully enumerate here. The most far-reaching of the rules will require local governments to: 

• Ensure that all residents and businesses have and properly use organic waste collection service complying with specific rules for container types/labeling, collection procedures, and post-collection processing; 

• Establish edible food recovery programs for specified commercial edible food generators (such as supermarkets and large restaurants and cafeterias) and food recovery organizations (such as food banks) so that at least 20 percent of currently disposed edible food is recovered for human consumption by 2025; 

• Procure compost and other materials generated from organic waste in amounts to be periodically determined by CalRecyle based on the size of the local jurisdiction; and 

• Draft and enforce ordinances, franchises and other agreements, plans, and education programs to implement the regulations and demonstrate compliance to CalRecycle. 

In addition to the regulatory requirements, CalRecycle has estimated that that the State will need 50 to 100 new or expanded facilities to compost or otherwise process organic waste. Many cities or counties should therefore expect to process applications for facilities proposed in their jurisdiction or plan to review applications for facilities proposed in nearby jurisdictions.   

Organic Waste Collection

The SLCP organic waste collection requirements are designed to ensure that all residents and businesses in California have and properly use collection service for organics. This includes not only materials such as food, yard, and wood waste, but also fibers such as paper and cardboard. Local governments must adopt a plan from a menu of options to comply. In some cities and counties these rules may require relatively minor changes from current practices, but in other jurisdictions residents and businesses will face new source separation programs and other requirements. 

Food Recovery Programs 

Food waste accounts for approximately 17 percent of total landfill disposal, according to CalRecycle. In recent years there has been an increasing focus on food recovery at a small scale through the non-profit sector. The SLCP regulations create a new set of responsibilities for local governments in food recovery efforts. Local governments must now evaluate their local food recovery capacity and increase that capacity if insufficient. They are also tasked with building connections between edible food generators, such as supermarkets or large restaurants and food recovery organizations, and with monitoring the generators’ compliance with regulations requiring them to arrange for recovery of the maximum amount of edible food that would otherwise be disposed. Counties are to take the lead in assessing food recovery capacity in collaboration with cities. Accordingly, cities should begin assessing their own infrastructure and consult with counties regarding their plans for compliance.   

Procurement Requirements 

Diverting organics from landfills will lead to a large supply of useful materials produced from processing those organics. These include compost, mulch, biomass derived electricity, and renewable gas. The SLCP regulations seek to bolster the market for those materials by setting a procurement target for each jurisdiction based on its population. These targets will be released before January 1, 2022. Jurisdictions should begin reviewing current procurements to determine how existing purchases could be replaced or augmented with qualifying procurements once the target is established.  

Implementation and Enforcement 

The SLCP regulations place implementation and enforcement squarely on the shoulders of local government, providing that “By January 1, 2022, a jurisdiction shall adopt enforceable ordinance(s), or similarly enforceable mechanisms … to mandate that organic waste generators, haulers, and other entities … that are subject to the jurisdiction’s authority comply with [the regulations].” Jurisdictions must establish education and outreach programs and then begin imposing penalties for non-compliance in January 2024. CalRecycle, in turn, has a broad suite of tools at its disposal to penalize local governments that do not carry out the enforcement mandates of the regulations. 

Expanded Organics Processing Capacity 

Central to the success of reducing methane and other emissions from organic waste will be developing the capacity to sustainably transform those wastes to productive uses. Food recovery programs do so in the most efficient way by reducing the amount of waste generated in the first instance. Nonetheless, there will likely be a considerable amount of organic waste to be processed once these regulations go into effect. Moreover, China’s “National Sword” policy has taken away fiber markets for recyclables, many of them organic, that were widely assumed to be available and effective when SB 1383 was adopted. 

As with the assessment of food recovery capacity, the SLCP regulations direct counties to work in cooperation with cities and other affected agencies to determine (1) their capacity to process organic wastes generated in the county and (2) the amount of new or expanded capacity that will be required to process organic wastes generated in the county.  Following the model of the State’s regional housing needs allocations, where there is a shortfall of capacity jurisdictions will be required to provide CalRecycle with an implementation schedule demonstrating how they will ensure that sufficient capacity will become available. These efforts will require creative partnerships among cities and counties and collaboration with public and private providers of organics processing services. These new or expanded facilities will need permits and related regulatory reviews and in some cases may require amendments to General Plans and zoning ordinances. 

Next Steps and Additional Resources 

The rules place a range of new education, enforcement, purchasing, and recordkeeping responsibilities on local agencies; staff will need to be assigned to these functions and trained accordingly. No State funds are being provided for implementation. CalRecyle has suggested that local governments fund the program through increased rates, franchise fees, administrative fees, and other local funding mechanisms. These revenue sources require advance planning and will require careful consideration, particularly as local governments work to resolve the financial problems arising from the COVID-19 health emergency and conform to Constitutional limitations on the ability to generate funds (e.g., Propositions 218 and 26). 

If your agency would like to comment on the rules you can find more information here. In light of the COVID-19 public health emergency, interested parties will have 30 days (instead of the normal 15) to comment on the rules; comments are due May 20, 2020. 

CalRecycle has a webpage with background materials and educational resources for agencies seeking additional information. A copy of the April 29 local government letter to CalRecycle is here. 

For more information on SB 1383 and the SLCP regulations please contact Richard Taylor at rtaylor@smwlaw.com.  

This article is intended for information purposes only and is not legal advice. This article is not intended to be a source of solicitation. This article is intended, but is not promised or guaranteed, to be correct, complete, and up-to-date. This article does not constitute a guarantee, warranty, or prediction regarding the outcome of any legal matter. Readers should not act on the information provided in this article without seeking professional legal counsel.