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No, the business would not be held liable if the other tenants in the strip mall are not recycling. However, as part of its monitoring program, the local jurisdiction would notify the businesses in the strip mall that are not recycling of the state requirement to recycle and how they can recycle.
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“Business” means any commercial or public entity that generates four cubic yards or more of commercial solid waste per week, including but not limited to the following groups who are organized as a for-profit or non-profit entity:
These may include:
For purposes of this Chapter, “business” also includes a multifamily residential dwelling of five units or more regardless of the amount of commercial solid waste generated. The regulation does not apply to single-family dwellings, multifamily dwellings of four or fewer units, or those businesses that generate less than four cubic yards of commercial solid waste per week. Local jurisdictions can also establish other specific exemptions.
Commercial solid waste is material generated by businesses, as defined by this question, that is generally disposed of in a solid waste landfill. Commercial solid waste does not include industrial waste.
According to 2008 Statewide Waste Characterization data, the commercial sector generates nearly three-fourths of the solid waste in California. Most of the material disposed from this sector is readily recyclable.
Industrial waste, defined in Section 17225.35 of Title 14 of the California Code of Regulations, is not subject to the requirements of the proposed regulation. However, commercial solid waste generated at an industrial facility or site, for example paper, plastic, metals, cardboard, etc., could be subject to the requirements of the regulation provided the facility/site generates four cubic yards of commercial solid waste or more per week.
It is important to note that many State agencies already operate under a 50% waste disposal reduction mandate under AB 75. AB 341 did not add or change the 50% diversion requirements for agencies subject to AB 75. However, it is important to note that the proposed definition in the regulation of a business includes public entities, including:
Thus, any State facility that generates four or more cubic yards of solid waste per week is subject to these new recycling requirements, if they are not already recycling.
The purpose of regulation is to clarify the statute for the purposes of implementation. Therefore, the definition of business in the proposed regulation includes any commercial or public entity that generates four cubic yards or more of commercial solid waste per week. This provision clarifies that the intent is that the threshold for businesses is “four cubic yards or more,” and not “more than four cubic yards.”
Businesses are required to select from any one or combination of the following activities:
The proposed regulation does not specify how much or what type of materials must be recycled by businesses, nor does it limit the types of materials that could be included in a recycling or composting program. The regulation does require that jurisdictions inform businesses about the state requirement to recycle and how they can recycle in the jurisdiction.
CalRecycle understands that each jurisdiction has its own unique set of circumstances, including different types of commercial generators, and is in a better position to determine what programs will work best to divert material from the commercial sector. The proposed regulation provides flexibility and does not dictate how a jurisdiction must implement a program or specify that a jurisdiction must implement a commercial collection program.
While the regulation does not require that jurisdictions implement a commercial collection program, every jurisdiction in the state already has some type of existing commercial recycling program.
Some communities have commercial recycling programs that collect the same materials that are included in their residential single-stream program. Some communities offer organics recycling and/or construction and demolition debris recycling programs. Other communities offer source-separated commercial recycling programs in combination with mixed waste processing of materials. Rural communities that do not have an on-site commercial collection recycling infrastructure offer drop-off programs. Finally, many businesses utilize self-haul, back-haul and independent recyclers to recycle.
Some programs target specific business materials for recycling while others do not provide this level of detail. The types and sizes of businesses and industry can vary, as can the amount and types of material generated per week.
To the extent that public entities, including schools, school districts and other municipal entities, generate four cubic yards or more per week of commercial solid waste, then they would be required to recycle. The jurisdiction is required to provide information about the recycling requirement to schools, school districts and municipal entities. Complying with the requirement to recycle is the responsibility of the school district, municipal entity, etc. CalRecycle staff can provide assistance to the jurisdiction in working with school districts and other government agencies.
The regulatory definition of a business includes airports. Therefore, airports would be required to recycle solid waste generated on the airport’s premises using one or more of the methods outlined in the regulation.
In addition, airports can require airlines to handle the waste that is removed from the aircraft in California in a prescribed manner. The airlines would be required to comply with the airport’s requirements, provided there is no conflict with federal requirements for solid waste handling (e.g., the United States Department of Agriculture requirement that food waste from international flights be incinerated or sterilized).
In cases of conflict, federal law preempts state, local or private regulation.
The guidance on air carriers also applies to cruise ships.
If the strip mall complex as a whole generates four cubic yards or more per week of commercial solid waste, then the individual businesses in the strip mall are required to recycle. Additionally, the regulation allows the property owner of the strip mall complex to require tenants to recycle and the regulation requires tenants to comply.
AB 341 and the regulation do not specify a minimum amount of recycling. Each business will determine the level of service and materials to be diverted, subject to local requirements. Additionally, a local jurisdiction may implement more prescriptive requirements through ordinances or policies, but this is not required by law.
During the time period that a site generates and subscribes to four cubic yards of waste service, then the business will need to recycle. In addition, if each site has individual waste collection, then each site operated by a business or agency would be considered separately in determining whether the regulation is applicable.
The proposed regulation does not address all waste streams, but it does allow flexibility to businesses and jurisdictions to address issues such as street sweepings in their individual programs. The diversion of street sweepings will depend on if there are diversion programs the business can utilize, such as a taking the material to a compost facility. The business should work with its hauler and the jurisdiction to determine if viable diversion opportunities for any specialized materials are available.
Subsection 18837(a)(2) specifies a method that a business may take to meet the requirement to recycle the business’s commercial solid waste:
by subscribing to a recycling service that may include mixed waste processing that diverts recyclable and/or compostable materials from disposal, yielding diversion results comparable to source separation.
In reality, however, there is not sufficient data or standards available to make a comparison to source separation, and therefore CalRecycle is not establishing such a threshold at this time. The language in the existing statute has been interpreted differently by various stakeholders regarding whether or not it establishes a particular threshold for mixed waste processing. On its face, the statute clearly does not do so. Instead, statute has provided a subjective standard to be evaluated on a case-by-case basis that allows flexibility for compliance. While Subsection 42649.2(b)(2) allows for a recycling service that may include mixed waste processing comparable to source separation as part of that recycling service, by using the term “may” instead of “shall” in this section, it does not require it.
That is, mixed waste processing is not necessarily required and therefore a recycling service can include other programmatic aspects. Thus, the recycling service may include more than just mixed waste recycling (consistent with the “may” in statute), but also emphasizes the need for the overall recycling service to yield comparable results to the other compliance alternative in (b)(1) (source separation). Mixed waste processing is intended here to include a myriad of processes to recover recyclable and/or compostable materials from solid waste. This Subsection is not intended to change marketplace dynamics or express a preference for any particular diversion activity, program or process over another. It is intended to provide local governments with flexibility in designing programs specific to their community.
While no single quantitative recovery rate standard exists, the section does establish an expectation that overall diversion results from a recycling service that includes mixed waste processing, and that may include other programs and activities, will be comparable to the overall diversion results of recycling services that rely on source-separated processing of recyclables, and that may also include other programs and activities. In lieu of a quantitative standard, CalRecycle will review jurisdiction compliance on a case-by-case basis using the “good faith effort” standard as already provided in statute (See PRC 41825(e)).
As part of its evaluation of local jurisdiction program implementation, the diversion performance of a particular facility may be considered by CalRecycle to see if the facility’s recovery appears to be significantly low. In this case CalRecycle would take into account relevant factors such as, but not limited to, the character and composition of the solid waste stream generated in the jurisdiction, the nature of collection systems in the jurisdiction, and the nature and amount of feedstock processed at facilities used for solid waste generated in the jurisdiction. That is, CalRecycle would conduct a case-by-case qualitative evaluation in the context of the entire set of programs in a jurisdiction, whether the facilities involved are mixed waste processing or single-stream material recovery facilities.
Additionally, businesses that choose to subscribe to a recycling service are not required by statute to determine if a mixed waste processing facility that is part of that service is yielding comparable results (e.g., they do not have to survey facilities and ask for recovery data).
As for whether or not CalRecycle should develop a quantitative standard of what constitutes “comparable to source separation” for mixed waste processing, CalRecycle has committed to working on this issue in the future. Prior to the formal rulemaking, this was the subject of considerable discussion and controversy. A working group convened by CalRecycle determined that there is not sufficient information at this time to promulgate such a standard. This is due in part because of variations in feedstock, processing technologies, residuals composition, lack of reporting, etc. However, CalRecycle recognizes that future work is needed on this issue as part of its other work on AB 341 (report on how to meet 75% diversion) and that this may lead to future rulemakings that establish performance requirements for mixed waste processing facilities.
In general, self-haul refers to hauling done outside of a franchise agreement. There may be local restrictions that would pertain to this particular scenario. This level of detail would need to be addressed locally, as it is not specified in the proposed regulation. Current examples of self-haul requirements implemented by California jurisdictions include:
It is an existing right of businesses to donate or sell their recyclable material.
AB 341 and the proposed regulation do not require businesses to keep numerical data about recycled materials, but local jurisdictions may choose to enact more stringent requirements to track recycling activities. Thus, independent of this regulation, information about recycling efforts may be requested from the jurisdiction, or by haulers or other agencies assigned to work with businesses on behalf of the jurisdiction. The information requested will assist the jurisdiction in determining the effectiveness of its education, outreach, and monitoring efforts. The jurisdiction may want to know more about what types of materials the business generates and the materials that are being recycled or otherwise diverted from disposal.
We are a major recycling company in California. We process waste generated on site as well. The remainder of the waste that has no economic value or use is treated and shipped to landfills to be used as ground cover. In essence everything we process is recycled. How do we document our efforts for the jurisdiction? Would we be exempt from the regulation?
There is no formal exemption process at the state level. The jurisdiction in which the business is located makes the determination as to whether to allow exemptions. Additionally, for this example, an exemption would not appear to be necessary as the business already is recycling and therefore would be meeting the requirements of the law.