Newest waste ban in Massachusetts: commercial organic material

July 19, 2013

Environmental Alert

Author(s): Ruth H. Silman

As of July 1, 2014, Massachusetts will prohibit the disposal of commercial organic material, defined as food material and vegetative material, from any entity that disposes of one ton or more of those materials for solid waste disposal per week. The proposed regulations exclude residences but will cover supermarkets, colleges and universities, large secondary schools, large restaurants and hotels, food manufacturers and processors, and hospitals and nursing homes.[1] The Massachusetts Department of Environmental Protection (“MassDEP”) has estimated the following calculations to assist businesses in determining whether they dispose of one ton or more of food waste per week:

  • College or university
    • Residential – 730 students
    • Non-residential – 2,750 students
  • Secondary school – 1,600 students
  • Hospital – 80 beds
  • Nursing home – 160 beds
  • Restaurant – 35 or more full-time employees
  • Resort/conference property – 475 seats
  • Supermarket – 35 or more full-time employees

Regulated entities will need to separate and divert food waste at their business. Possible diversion options include donating servable food, installing an on-site system which can then produce electricity, or working with a waste hauler to send separated food waste to an anaerobic digestor facility or compost site. The proposed regulations do not affect management via wastewater systems such as garbage disposals.

Massachusetts began waste bans in 1990 to advance recycling, conserve limited disposal capacity, and support recycling markets, jobs, and economic development throughout the Commonwealth. This latest proposed ban is intended to divert food waste from disposal to anaerobic digestion and composting facilities, benefitting those types of entities and helping to reach the Clean Energy Results Program’s goal of 50 megawatts of anaerobic digestion in place by 2020. Readers should be aware that the Commonwealth is promoting anaerobic digestion facilities and has financial and technical resources available, including grant, loan, and other programs available to assist developers.[2]

By way of background, the 2010–2020 Massachusetts Solid Waste Master Plan[3] aims to reduce the quantity of waste disposed of in Massachusetts by 30% (2 million tons) by 2020, with an additional reduction of 80% (5.2 million tons) by 2050. MassDEP estimates that approximately 100,000 tons of organic material is currently diverted from the solid waste stream; the goal is to increase that to 450,000 tons diverted by 2020. According to MassDEP, organic materials, including food waste, compostable paper, leaves, and yard waste represent more than one quarter of the municipal solid waste disposed of in Massachusetts—approximately 1.3 million tons annually. Just under half of that total is disposed of by businesses and institutions. The Commonwealth has set these aggressive targets to be consistent with the 2010 Massachusetts Clean Energy and Climate Plan for 2020, which established the goal of reducing greenhouse gas emissions by 25% by 2020 and 80% by 2050.[4]

The proposed regulations grew out of discussions with MassDEP’s Organics Subcommittee of the Solid Waste Advisory Committee and the Organics Study and Action Plan.[5] The stated benefits of the new waste ban include: increased opportunities to create energy by anaerobic digestion or to create fertilizers and other soil additives through composting; additional management solutions for dairy manure and wastewater residuals; greater ability to generate power at farms, wastewater plants, and other locations; cost-effective materials management for businesses and institutions; and an overall reduced reliance on disposal capacity.

Like its predecessors, the proposed Commercial Organic Material Waste Ban will apply to the permitted facilities (disposing of over one ton per week of commercial organic material), haulers, and generators. MassDEP believes that those disposing of large amounts of food waste can typically divert such waste from disposal for the same or less cost than other materials currently disposed of through their solid waste management system. Focusing on the larger food waste generators will spur the development of cost-effective infrastructure for collection and processing of the organic wastes. MassDEP promulgated helpful guidance and background information regarding the proposed regulations.[6]

Waste bans are monitored and enforced at the solid waste facilities, including landfills, combustions facilities, and transfer stations throughout the Commonwealth. These facilities are required to submit a Waste Ban Plan to MassDEP for review at least 90 days prior to the effective date of the ban, or by April 1, 2014. With respect to commercial organic material, a solid waste facility must take action if the facility believes that there is more than 10% by volume of such material in any load.

Public comments will be accepted until August 23, 2013. MassDEP is also accepting informal comments on its proposed guidance document. Public hearings will be held as follows[7]:

  • August 1, 2013 – Boston
  • August 6, 2013 – Lakeville
  • August 8, 2013 – Springfield
  • August 12, 2013 - Worcester

For additional information, please refer to the following:

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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