California – Mandatory Commercial Organics Recycling

Seeking to further California’s waste diversion rate and thereby preserve landfill capacity for the future, Governor Jerry Brown signed Assembly Bill (AB) 1826 into law on September 28, 2014. Also known as the Mandatory Commercial Organics Recycling (MORe) program, AB 1826 requires commercial generators of organic waste to have their food waste, landscape and other green waste, food-soiled paper, and nonhazardous wood waste composted or anaerobically digested. The law’s staggered dates of enforcement will allow adjustment time to develop greater capacity in California’s existing organic waste processing infrastructure.

Compliance Requirements for Jurisdictions

Section 42649.82 of the law set forth requirements for Californian jurisdictions to implement new, or expand existing, organic waste recycling programs by January 1, 2016, in order to facilitate the compliance of businesses. However, the law gave leeway for a jurisdiction to design the organic waste recycling program in a manner appropriate to its local context. Beginning August 1, 2017, jurisdictions subject to MORe were required to send an annual report to the CalRecycle on their progress in implementing their organic waste program, detailing efforts in education, outreach, rationale for exemptions, and any enforcement activities. Jurisdictions in rural counties of California were able to choose whether they would like to be exempt from the law.

Compliance Requirements for Businesses

As of April 1, 2016, businesses generating eight cubic yards or more of organic waste per week were required to recycle those materials. The threshold for organic waste produced lowered to four cubic yards per week on January 1st, 2017, thus becoming applicable to a greater number of businesses. Two years thereafter, on January 1, 2019, any business generating four or more cubic yards of commercial solid waste per week, is required to contract services for organic waste recycling.

In Section 42649.81, the law contains several clauses with specific stipulations for certain entities and kinds of waste:

• Businesses may recycle organic waste onsite, self-haul their own waste, or contract others to recycle their waste.
• A business must require its landscaping or gardening service to recycle any green waste generated.
• In order to comply with the law, businesses that are property owners are legally able to require a lessee or tenant to source separate their organic waste.
• Exempt Parties:
  • Businesses residing in rural jurisdictions are exempt from complying with this law.
  • Multifamily residential buildings with less than five units are not considered businesses.
  • Although multifamily residential buildings with five units or more are identified as businesses, and thus are required to recycle their organics, they do not have to have a food waste diversion program like other businesses.

Requirements for CalRecycle

The law obliges CalRecycle to coordinate with local agencies and industry to facilitate the expansion of California’s organic waste processing infrastructure. The department’s range of support includes helping jurisdictions with the permitting of new facilities, promoting the development of new infrastructure and end-use markets, and identifying on its website financing mechanisms and state funding available for in-state development of infrastructure.

CA Public Resource Code – Chapter 12.9

Section 42649.82
(a) (1) In addition to the requirements of Section 42649.3, on and after January 1, 2016, each jurisdiction shall implement an organic waste recycling program that is appropriate for that jurisdiction and designed specifically to divert organic waste generated by businesses subject to Section 42649.81, whether or not the jurisdiction has met the requirements of Section 41780.

(2) (A) A county board of supervisors of a rural county may adopt a resolution, as prescribed in this paragraph, to make the rural county exempt from the requirements of this section. If a rural jurisdiction is a city, the city council may adopt a resolution, as prescribed in this paragraph, to make the rural jurisdiction exempt from this section. If a rural jurisdiction is a regional agency comprised of jurisdictions that are located entirely within one or more rural counties, the board of the regional agency may adopt a resolution, as prescribed in this paragraph, to make the rural jurisdiction is exempt from the requirements of this section.
(B) A resolution adopted pursuant to subparagraph (A) shall include findings as to the purpose of and need for the exemption.
(C) A resolution to exempt a rural jurisdiction pursuant to subparagraph (A) shall be submitted to the department at least six months before the operative date of the exemption.
(D) On or after January 1, 2020, if the department determines that statewide disposal of organic waste has not been reduced to 50 percent of the level of disposal during the 2014 calendar year, all exemptions authorized by this paragraph shall terminate unless the department determines that applying this chapter to rural jurisdictions will not result in significant additional reductions of disposal of organic waste.

(b) If a jurisdiction, as of January 1, 2016, has in place an organic waste recycling program that meets the requirements of this section, it is not required to implement a new or expanded organic waste recycling program.
(c) The organic waste recycling program required by this section shall be directed at organic waste generators and may include, but is not limited to, one or more of the following:

(1) Implementing a mandatory commercial organic waste recycling policy or ordinance that addresses organic waste recycling.
(2) Requiring a mandatory commercial organic waste recycling program through a franchise contract or agreement.
(3) Requiring organic waste to go through a source separated or mixed processing system that diverts material from disposal.

(d) (1) The organic waste recycling program shall do all of the following:

(A) Identify all of the following:

(i) Existing organic waste recycling facilities within a reasonable vicinity and the capacities available for materials to be accepted at each facility.
(ii) Existing solid waste and organic waste recycling facilities within the jurisdiction that may be suitable for potential expansion or colocation of organic waste processing or recycling facilities.
(iii) Efforts of which the jurisdiction is aware that are underway to develop new private or public regional organic waste recycling facilities that may serve some or all of the organic waste recycling needs of the commercial waste generators within the jurisdiction subject to this chapter, and the anticipated timeframe for completion of those facilities.
(iv) Closed or abandoned sites that might be available for new organic waste recycling facilities.
(v) Other nondisposal opportunities and markets.
(vi) Appropriate zoning and permit requirements for the location of new organic waste recycling facilities.
(vii) Incentives available, if any, for developing new organic waste recycling facilities within the jurisdiction.

(B) Identify barriers to siting new or expanded compostable materials handling operations, as defined in paragraph (12) of subdivision (a) of Section 17852 of the Title 14 of the California Code of Regulations, and specify a plan to remedy those barriers that are within the control of the local jurisdiction.
(C) Provide for the education of, outreach to, and monitoring of, businesses. The program shall require the jurisdiction to notify a business if the business is not in compliance with Section 42649.81.

(2) For purposes of subparagraph (A) of paragraph (1), an “organic waste recycling facility” shall include compostable materials handling operations, as defined in paragraph (12) of subdivision (a) of Section 17852 of Title 14 of the California Code of Regulations, and may include other facilities that recycle organic waste.

(e) The organic waste recycling program may include any one or more of the following:

(1) Enforcement provisions that are consistent with the jurisdiction’s authority, including a structure for fines and penalties.
(2) Certification requirements for self-haulers.
(3) Exemptions, on a case-by-case basis, from the requirements of Section 42649.81 that are deemed appropriate by the jurisdiction for any of the following reasons:

(A) Lack of sufficient space in multifamily complexes or businesses to provide additional organic material recycling bins.
(B) The current implementation by a business of actions that result in the recycling of a significant portion of its organic waste.
(C) The business or group of businesses does not generate at least one-half of a cubic yard of organic waste per week.
(D) Limited-term exemptions for extraordinary and unforeseen events.
(E) (i) The business or group of businesses does not generate at least one cubic yard of organic waste per week, if the local jurisdiction provides the department with information that explains the need for this higher exemption than that authorized by subparagraph (C).

(ii) The information described in clause (i) shall be provided to the department with the information provided pursuant to subdivision (f).
(iii) This subparagraph shall not be operative on or after January 1, 2020, if the department, pursuant to paragraph (4) of subdivision (a) of Section 42649.81, determines that statewide disposal of organic waste has not been reduced to 50 percent of the level of disposal during the 2014 calendar year.

(f) (1) Each jurisdiction shall provide the department with information on the number of regulated businesses that generate organic waste and, if available, the number that are recycling organic waste. The jurisdiction shall include this information as part of the annual report required pursuant to Section 41821.

(2) On and after August 1, 2017, in addition to the information required by paragraph (1), each jurisdiction shall report to the department on the progress achieved in implementing its organic waste recycling program, including education, outreach, identification, and monitoring, on its rationale for allowing exemptions, and, if applicable, on enforcement efforts. The jurisdiction shall include this information as part of the annual report required pursuant to Section 41821.

(g) (1) The department shall review a jurisdiction’s compliance with this section as part of the department’s review required by Section 41825.

(2) The department also may review whether a jurisdiction is in compliance with this section at any time that the department receives information that a jurisdiction has not implemented, or is not making a good faith effort to implement, an organic waste recycling program.

(h) During a review pursuant to subdivision (g), the department shall determine whether the jurisdiction has made a good faith effort to implement its selected organic waste recycling program. For purposes of this section, “good faith effort” means all reasonable and feasible efforts by a jurisdiction to implement its organic waste recycling program. During its review, the department may include, but is not limited to, consideration of the following factors in its evaluation of a jurisdiction’s good faith effort:

(1) The extent to which businesses have complied with Section 42649.81, including information on the amount of disposal that is being diverted from the businesses, if available, and on the number of businesses that are complying with Section 42649.81.
(2) The recovery rate of the organic waste from the material recovery facilities that are utilized by the businesses, all information, methods, and calculations, and any additional performance data, as requested by the department from the material recovery facilities pursuant to Section 18809.4 of Title 14 of the California Code of Regulations.
(3) The extent to which the jurisdiction is conducting education and outreach to businesses.
(4) The extent to which the jurisdiction is monitoring businesses and notifying those businesses that are not in compliance.
(5) The appropriateness of exemptions allowed by the jurisdiction.
(6) The availability of markets for collected organic waste recyclables.
(7) Budgetary constraints.
(8) In the case of a rural jurisdiction, the effects of small geographic size, low population density, or distance to markets.
(9) The availability, or lack thereof, of sufficient organic waste processing infrastructure, organic waste recycling facilities, and other nondisposal opportunities and markets.
(10) The extent to which the jurisdiction has taken steps that are under its control to remove barriers to siting and expanding organic waste recycling facilities.