TERU Focus Report - CalRecycle's Regulatory Clean-Up

California Code of Regulations Titles 14 and 27 - Part 1: Issues 1 through 4
December 30, 2011 -- Michael Theroux

When California's Governor dumped the Integrated Waste Management Board and extricated its operations from the California Environmental Protection Agency, the functions were planted as a department within the state's Resources Agency with the mandate to coordinate "Resources Recycling and Recovery". Thus named and to comply with its mandate, the Department of Resources Recycling and Recovery (CalRecycle) has begun a process of regulatory reform focused on marrying recycling oversight with the rest of the state's waste management purview.

In an overt attempt at sanity, CalRecycle staff chose to identify issues rather than simply layer on more regulations. Staff invited public input through three public workshops and many side meetings. The process developed and vetted a number of key Issues, defined problem areas, and offered a variety of solution-oriented approaches for open discussion. This report organizes the first four Issues with current problem statements, descriptions of the agency's offered approaches, and summaries of the many and often conflicting public comments received by CalRecycle through the December 21, 2011 workshop.

The initial list presented by CalRecycle staff included 12 Issues. CalRecycle has asked stakeholders to suggest additional key issues throughout the process.

Issue 1:   Food waste definition

Issue 2:   Land application: disposal or beneficial use

Issue 3:   On-site storage and 12,500 cubic yard limit

Issue 4:   Odor complaints: beyond zero tolerance

Issue 5:   POTW Acceptance of Food Wastes, Fats, Oils and Grease (FOG)

Issue 6:   Green waste contamination

Issue 7:   Anaerobic Digestion facility permitting

Issue 8:   Meat Waste Management and Regulatory Purview

Issue 9:   Maximum metal concentrations consistency with federal regulations

Issue 10: Agricultural Material definition and relation to "Processing"

Issue 11: Small-scale composting exclusions

Issue 12: Clarification of term "Maximum Daily Tonnage" for Solid Waste Facilities

Issue 13: Vermiculture (added at the request of the vermiculture industry to address standardization of this form of organics management)

Issue 14: Cessation of Waste (Teru recommendation: develop a suite of criteria for formal regulatory recognition of the amount of processing that must occur for a material to be removed from the "waste" designation)

High on the list is the need to untangle the regulatory relationship between what is Composting, what should be managed as Transfer / Processing, and where these existing permit structures might be reasonably merged for function without a full rewrite. Specific articles within Title 14 and 27 of the California Code of Regulations are certainly impacted; CalRecycle's rulemaking webpage for Compostable Materials, Transfer / Processing identifies these and provides web links and a thorough enumeration of the issues.

Issue 1. Definition of Food Waste

Problem Statement: The current food waste definition is general and does not distinguish between various food waste types that are generated and handled as separate waste streams. All food waste composting requires a full permit.

CalRecycle Potential Approach: Define sub-categories of food waste that have unique characteristics, such as vegetative and animal-derived food waste, and establish varying degrees of handling protocols that will continue to prevent public health and environmental issues at compost sites, but will allow some types of food waste to be co-composted at Notification tiered sites if specified handling protocols are followed.

Public Comment: Although an understanding of the many types and sources of pre- and post consumer food wastes, agricultural processing residues, and other forms of "putrescible" (quick to rot) waste is clearly needed, the general agreement seems to be that the state should err on the side of flexibility. Instead of regulating by bits and pieces, provide Best Management Practices (BMPs) based on the state of our current global knowledge, guidance that can be amended as new methods and tools arise. Permitted waste haulers and process operators should be left to their creative best to figure out how to safely and cost-effectively collect and process whatever organics are generated within their region. Recology: Once a categorical bracket is established, it changes management. CAW: Follow Directive 6.1, and drive toward recycling goals first with other recovery following; don't just aim for the permitting structure. Teru: work within the existing permit structure and the BMPs, and avoid creating new regulations and learn from facility examples operating in other global regions. San Diego: develop a Research tier. Edgar: up to 20% food waste can be effectively mixed with green waste, but percentages should be left to operators and informed by BMPs, not made prescriptive standards.

Issue 2: Beneficial Use and Land Application

Problem Statement: Current regulations identify application of compostable materials and ash to agricultural land as beneficial use if the use meets California Department of Food and Agriculture (CDFA) requirements. There is a need to better determine when application of compostable materials, compost, and ash should be considered "use constituting disposal" and its associated problems instead of a true beneficial use. Title 27 Section 21565 allows an exemption to permit requirements if a facility that disposes of cannery wastes, ashes and residues, agricultural wastes, and wastewater treatment sludge on agricultural land meets explicit criteria, but Local Enforcement Agency (LEA) staff have not been able to collaborate effectively.

CalRecycle Potential Approach: Work with the CDFA and other agencies to clean up interaction and to establish management protocols, but make this a flexible basis over time with case by case assessment and determination allowed. Coordinate with the State Water Resources Control Board (SWRCB) and Air Districts to establish specific measurable criteria for determining when use of compostable material, compost, and ash is considered disposal. Focus criteria on parameters required to prevent odor, fire, litter, and dust, and to protect public health and safety. Criteria could include size of plot, maximum application depth, frequency of application, incorporation times, pre-application storage time, inorganic contaminant limits, and 503 CFR requirements. Criteria could also allow LEA staff to make case by case determinations after consultation with other regulatory agencies and/or experts, such as Regional Water Quality Control Boards (RWQCB), the California Department of Forestry (CDFA), agronomists, certified crop advisors, and local air districts. Revise Title 27 Section 21565 so that it is consistent with Title 14 regarding disposal activities.

Public Comment: Major disparity in oversight allows "chip/grind" mulch management to operate essentially without oversight, resulting in uncontrolled dumping of coarsely-ground green waste onto land with no regard for environmental impacts. Edgar: With Puente Hills Landfill closing in two years, another 1,000 tons per day of green waste will be generated and collected without a way for the material to be beneficially used. Santa Barbara: There is reason to be concerned regarding transmission of pests and diseases with poorly processed and transported mulch and other organics. The CDFA has policies but not well defined standards for what constitutes beneficial use versus disposal, and clearly does not want to have purview. CAW: Is there a "tipping fee" involved, and if so, does paying for land application constitute disposal? CalRecycle: partnering between generators and land owners is common and complicates questions of payment, not a simple equation. CAW: At what point is a waste material no longer legally a "waste"? Teru: Time and loading rates must be part of criteria; do anything long enough and it can become a problem. California needs "Cessation of Waste" regulations similar to those found in New York. Recology: aim for "highest and best use".

Issue 3: Organics Storage Times and Quantities

Problem Statement: Agricultural material and green material composting operations are limited to 12,500 cubic yards of off-site-generated green material being stored on-site at any one time. These limits include stable compost stored on-site

CalRecycle Proposed Approach: Exclude stable compost from calculation of the 12,500 cubic yard storage limit for all agricultural material and green material composting operations if specific storage criteria are followed, including pile size and others measures that prevent fire, odor, and cross contamination. Ensure criteria are not in conflict with controls for the prevention of water and air pollution.

Public Comment: Consider extending the exemptions for storage of stabile organic materials to all facility sizes, not only the small scale operations. It is difficult and rarely accomplished for an agency staff inspector to accurately judge actual volumetric of organics on the ground; it is however easier to determine subjectively when there is more than can be effectively handled by an operator, given plot size and available equipment. There need to be simplified tools developed for reliable inspection volume determinations. Duration of storage is also problematic: some operators accept and quickly move huge volumes of materials, sometimes in one day, complicating permit determinations. High through-put rates and rapid turnover of materials need special considerations for risk reduction.

Issue 4: Odors and Complaints

Problem Statement: Two difficulties - (1) Nuisance odor complaints tend to be a common method of harassment from the public against in-compliance waste management facility owner/operators, and (2) Documentation of odors has been subjective only. Approaches to verification of odor complaints relative to compost sites are not consistent statewide.

CalRecycle Potential Approach: Analyze, set standards, and then consistently document compliance. Develop odor verification and complaint protocol for operators to be included in Odor Impact Minimization Plans (OIMP). Use protocols that are similar to existing methods employed by other regulatory entities and include verification and complaint protocols. The protocols could also utilize odor measuring technologies. Odor complaint verification protocol steps: establish an "odor baseline" per site; develop a monitoring plan that facilitates response to complaints by documented changes to operations. See website for "Baseline and Monitoring" protocol. Use C-Corp report. Need to separate "Bogus Complaints" from "Process Controls".

Baseline and Monitoring - Operator monitors and logs the following:

1.Complaints: (a) Number and summary of complaints within given time frame (day, month), and (b) Date, time, complaint was received and complaints were investigated

2. Intensity of odors: (a) Site specific methods and scale, and (b) Odor instruments

3. Odor characteristic spectrum: Floral Fruity Vegetable Earthy Medicinal Chemical Fishy Offensive (Putrid, Rancid, Fecal, Garbage)

4. Duration of odors (hours, days, weeks, months)

5. Changes to design and operation during monitoring and data collection: (a) LEA staff and operators use same criteria to evaluate and document odors and complaints, and (b) Operator provides data and proposed operational changes quarterly to LEA, or other designated timeframe in OIMP.

Source: This diagram is part of a slide presentation by CalRecycle staff and the Acrobat file can be accessed from the Public Notice for the December 21, 2011 Informal Workshop.

Public Comment: Discussion on value of odor monitoring as compared to process control in that odors are symptoms, not the problem. Recology: Mal-odors are indicative of improper operations. Yet what can an operator do when the process is in compliance, yet odor complaints persist? Edgar: Create a nexus between the approved OIMP and the validation of odor complaints. Perhaps, develop a "Right to Compost", similar to national "Right to Farm". CAW: Even bogus complaints still need to be addressed, respecting the public's right to react to impacts, perceived and/or real. San Jose: The concept of what is "Reasonable and Feasible" needs more work; suggest a full workshop on just this topic. Cotton: OIMP process works, leave it alone except for "upper edges" - but understand that the process is weighted toward the resident. Need industry/LEA engagement.

Conclusion

This first Focus Report covers the first four Issues; subsequent reports will address the remaining topics as CalRecycle works through the process. Together, the series is intended to help keep you current with the discussion and perhaps encourage your engagement in helping reshape the regulations. Questions about CalRecycle's on-going process of regulatory revision should be addressed to the project leader, Ken Decio at (916) 341- 6313, or via email:.