In My Opinion: More than we can chew?

It’s been almost 30 years since the passage of AB 939 in California in 1989. That landmark legislation required all California cities and counties, individually, to achieve a 50 percent level of waste diversion from landfills by the year 2000 – under the threat of up to $10,000 per day in penalties for failure to comply. Most cities and counties were able to achieve that level of diversion.

Now, California is raising the bar significantly higher and embarking on a comprehensive new solid waste and recycling strategy – complete with recordkeeping requirements, enforcement and penalties – to require the recovery of 75 percent of organic discards (about 15 million tons per year) by 2025. By all accounts, the sweep and potential impact of this proposed plan have no parallel elsewhere in the United States.

The problem to be solved, according to California policymakers, is that traditional solid waste management practices are resulting in unacceptable greenhouse gas (GHG) emissions that must be urgently reduced. The emerging GHG of concern of policymakers is not carbon dioxide (CO2) – instead, it’s the gases known as short-lived climate pollutants (SLCPs), a category that includes methane.

In September 2016, California Gov. Jerry Brown signed SB 1383, establishing SLCP emission reduction targets in various sectors of California’s economy. Fugitive methane that is believed to be emitted from landfills was specifically targeted by this legislation: The requirements of SB 1383 and pending regulations are based on the need to immediately reduce the amount of fugitive methane released from California landfills by two-thirds – to less than 3 million metric tons of CO2 equivalent per year.

Because the anaerobic decomposition of organic waste in landfills is what produces methane in those environments, it is the organic component of the waste stream that is being targeted by the state to achieve the goals of SB 1383.

But numerous questions remain about the costs and underlying logic of trying to greatly reduce methane emissions by attempting to make unprecedented steps in organics recovery. It’s worth asking: Are the state’s goals possible, or has California bitten off more than it can chew?

Methane: A potent GHG

To start this discussion, it’s important to understand exactly why methane is receiving so much attention within California policy. A metric called global warming potential (GWP) can help.

The GWP system was developed to allow comparisons of the global warming impacts of different gases.

Specifically, it is a measure of how much energy the emissions of 1 ton of a gas will absorb over a given period of time, relative to the emissions of 1 ton of CO2. The larger the GWP for a particular gas, the more that gas warms the planet compared with CO2 over a given time period.

Methane has a GWP of 28-36 in the 100-year time frame – meaning it is significantly more potent than CO2 over the course of a century. And methane becomes even more of a concern when we constrict the time period. Over a 20-year time frame, methane is believed to have a GWP of over 80 (some say even higher). Thus, it is argued, there is a need to take immediate and drastic action to reduce these emissions.

The question, however, is whether organics recovery mandates are the best place to focus resources.

Currently, methane emissions from the solid waste sector are believed to only represent less than 2 percent of California’s total GHG emissions, according to the most recent edition of the state-issued California Greenhouse Gas Emission Inventory. That’s in part because efforts have already been implemented to help address the issue – for example, virtually all of the “waste in place” at California landfills is treated by active gas collection and methane destruction systems, which are specifically installed to reduce methane and other non-methane organic compounds that may be fugitively escaping from California landfills. Since the 1980s, California has developed landfill methane control regulations that are the most stringent in North America, if not the world. In fact, according to the California Air Resources Board (CARB), landfills contribute less than 25 percent of the total methane emissions from all California sources. Other sources such as the largely unregulated agriculture sector emit much more fugitive methane.

Unfortunately, there are not any accepted methods to accurately measure leaking fugitive methane emissions from landfills (as well as from other sources). The only tools available are relatively simplistic mathematic models that were never designed for accurately determining landfill methane emissions.

These tools were originally created to provide a rough estimate of how soon landfills would be emitting sufficient methane to warrant installation of a gas collection and destruction system.

That lack of precision helps explains why, historically, there has been significant disagreement about the amount of methane that fugitively escapes from California landfills as a whole. The solid waste industry has noted a 95 percent methane capture and destruction rate at certain California landfills using laser monitoring tools. However, environmental advocates have suggested a statewide methane capture and destruction rate that is less than 50 percent. CARB has followed the lead of U.S. EPA and determined the California landfill methane capture and destruction rate to be 75 percent (no credit is given for landfill storage of sequestered carbon in organic materials, such as cellulose, that do not substantially decompose in an anaerobic landfill environment). However, CARB has acknowledged that other estimates of landfill methane emission controls may increase the collection efficiency at regulated landfills to 80-85 percent and further evaluation is needed.

Using that 75 percent number, CARB and the California Department of Resources Recycling and Recovery (CalRecycle) have estimated that California landfills are responsible for emitting about 8.4 million metric tons of CO2-equivalent GHGs per year. As mentioned earlier, the goal of SB 1383 is to cut that number to less than 3 million metric tons.

The proposed path

Most other industries would be celebrated for implementing systems in cooperation with federal and state regulations to capture 75 percent of GHG emissions – but not the solid waste sector.

CalRecycle and CARB believe the highly regulated gas control and destruction systems are not doing enough to control fugitive methane being emitted by landfills to the atmosphere in California. However, rather than find better ways to directly control methane emissions, to date California policymakers have settled on the approach of restricting the amount of organic waste that is allowed to be disposed in California landfills. (This strategy also appears to ignore the fact that organic waste already disposed in landfills will continue to decompose and produce methane for 30 years or more.)

SB 1383 mandates that CalRecycle achieve a 50 percent reduction in the level of the statewide disposal of organic waste from the 2014 level by 2020, and a 75 percent reduction by 2025. The bill gives CalRecycle the regulatory authority required to achieve the organic waste disposal reduction targets.

In May of 2018, CalRecycle released its final proposed regulatory proposal in an attempt to achieve these goals by exacting mandatory recycling and recovery of organic waste by virtually all sectors of the California economy: residents, service providers, businesses and local government. Some form of these regulations is expected to adopted into law by the end of 2018.

By most accounts, the proposed CalRecycle regulations are among the most sweeping and significant solid waste regulations to be proposed at the state level anywhere in the United States. Here are the key points on how the state foresees reaching 75 percent organics diversion:

• Composting, food recovery, anaerobic digestion to produce methane fuel, separated biomass conversion to generate electricity, and limited land application are the principle methodologies that are proposed to be allowed by CalRecycle, although some added technologies may be approved in the future.
• Single-cart systems (mixed-waste processing) can be used, but the receiving mixed-waste processing facility must demonstrate a 50 percent recovery rate starting in 2022 and 75 percent in 2025 – with apparently no credit being given for other recycling programs that a city or county may operate in conjunction with the single-cart system.
• All facilities must measure and report the amount of residual organic waste remaining after processing along with next destination. This will enable CalRecycle to keep track of the total amount of organic waste diversion.
• All generators (residential, commercial, industrial and agencies) in the state must comply, although some flexibility is allowed for rural areas and commercial sites with limited space for containers and carts.
• Every city and county must directly procure products from recycled organic waste at approximately 10 percent of total organic recycling needed. The draft proposed regulations currently limit this procurement to compost, renewable natural gas for transportation, and paper – recordkeeping and reporting are also required in this realm.
• Every city and county must have an edible food recovery program to capture 20 percent of what is currently disposed in landfills by 2025.
• There will be extensive enforcement and penalty requirements imposed on cities, counties and, ultimately, individual waste generators by CalRecycle. Jurisdictions are ultimately liable for up to $10,000 per day for failure to implement an organic waste recycling program consistent with CalRecycle regulations. Households could be fined up to $500 per day for failure to cooperate with the organic waste collection programs.

What it means on the ground

Clearly, the state’s bold proposal will need the development of new organics processing capabilities as well as work by a variety of stakeholders to keep organics out of the disposal stream. These steps will not be easy or low-cost.

For instance, it’s estimated approximately 100 organic waste recycling and processing facilities (each at an average capacity of about 750 tons per day) will need to be designed, permitted and constructed throughout California to achieve the diversion targets. The capital expenditure for these facilities is expected to be on order of $2 billion to $3 billion ($20 million to $30 million per facility of that size).

Operation and maintenance costs would be in addition.

Unfortunately, limited funding is available from the state to underpin such projects. Currently, the state budgets about $25 million from its GHG cap-and-trade program per year to a grant and loan network for the development of needed technologies, but that sum represents less than 10 percent of required expenditures to meet the 75 percent organic waste diversion goal. The rest of the cost will surely fall to rate payers, with early analysis suggesting residential solid waste and recycling rates would increase by $7 to $20 per month and commercial rates seeing even higher boosts.

Also worth noting is the fact that alternative daily cover (ADC) and alternative intermediate cover (AIC) count as disposal rather than beneficial use under new California regulations. Landfills are required to provide such covers to protect human health and the environment – yet organic waste-derived materials for this purpose are not considered to be a beneficial use (although some beneficial landscaping use at landfills will still count as recycling).

Another area of concern about the recent proposal is the seeming lack of attention given to markets. If enormous efforts are devoted to diverting and processing organics in the state, downstream options must be secured or else the entire system risks collapse.

The proposal’s procurement requirement for local governments is an example of a market development strategy, but it also comes with complications. The amount of procurement by each city and county is tied to the number of individual city/county employees. This could impose a significant procurement burden when other sectors, including CalTrans and other state agencies, as well as agriculture stakeholders, have a much greater demand and capability for the use of recovered organic materials.

In addition, markets demand that recovered organic waste be kept clean. In the rush to divert more material to hit state mandates, collection carts could become too contaminated for processors. Agencies will have to address how to effectively handle contaiminated and commingled organic waste, and this will significantly impact the cost of collection and processing to achieve separated organic wastes.

It’s clear that extensive organic facility capacity planning will be required of cities and counties to document to CalRecycle that sufficient processing infrastructure is in the works. But this does nothing to develop markets for all of the recovered organics the state hopes to generate in the coming years.

A ‘command and control’ approach

Can such an organic waste diversion and recycling program as authorized by SB 1383 and proposed by CalRecycle be successfully implemented? CalRecycle representatives say they have no choice, that this is the program that the legislature and the governor have directed them to implement.

Many progressive California cities and counties, such as San Francisco, Berkeley and Alameda, are already implementing programs that, in many respects, are similar to that being proposed by CalRecycle. The difference, of course, is that CalRecycle is proposing a “command and control” program that will emanate from Sacramento and be expected to take hold in virtually every part of America’s most-populous state.

Time, of course, will tell how everything plays out. CalRecycle is on track to adopt these draft proposed regulations by the end of 2018, although further changes and adjustments to the regulations will likely be forthcoming between now and then as part of the formal rule-making process.

If the program cannot be implemented as currently framed, a whole new round of questioning begins.

Will more attention be paid to directly limiting and controlling methane emissions at landfills? How will that be accomplished?

It’s more than likely we will see further clarifying legislation on this matter in the upcoming years to address some or all of the problems and inconsistencies of this newly proposed program.

Chuck White is senior advisor at Manatt, Phelps & Phillips, LLP, a Los Angeles-based firm providing legal services, advocacy and business strategy. He can be contacted at (916) 552-2365 or [email protected].