In October 2020, the Massachusetts Department of Environmental Protection (MassDEP) released a public hearing notice announcing proposed regulatory amendments to the Commonwealth’s solid waste management regulations (310 CMR 19.000). The amendments would expand the scope of the regulation’s waste restrictions, adding textiles, as well as mattresses, to the list of materials banned from disposal, effective October 21, 2021.

MassDEP has scheduled hearings on the amendments, and their accompanying Revised Guidance for Solid Waste Handling and Disposal Facilities on Compliance with MassDEP’s Waste Bans, for Monday, November 9, at 6:00 p.m. ET, and Thursday, November 12, 2020, at 10:00 a.m. ET, via ZOOM. Those interested may present testimony orally at the hearing, or share written comments via email until 5:00 p.m. ET on December 4, 2020.

This regulatory update is consistent with global trends identifying the high-footprint textile industry as a key target for waste diversion mandates. The U.S. Environmental Protection Agency (EPA) has estimated that 12.7 million tons of textile waste is disposed of in landfills in the United States each year (EPA, Advancing Sustainable Materials Management: 2017 Fact Sheet (2019)). The textile waste disposal stream is likely to increase as countries that historically received the bulk of the planet’s used clothing—such as Kenya and Rwanda—begin to implement restrictions on such imports to avoid further accumulation of textile waste and minimize risks during the coronavirus pandemic.

Background on Massachusetts Waste Disposal Ban

Last amended in 2014, Massachusetts’s solid waste regulations include a waste ban (310 CMR 19.000) that restricts the disposal, transfer for disposal, and contracting for disposal of certain hazardous items and recyclable materials at solid waste facilities in Massachusetts. The regulation specifically dictates that:

• “No person shall dispose, transfer for disposal, or contract for disposal or transport of the restricted material;” and
• “No landfill, transfer facility or combustion facility shall accept the restricted material except to handle, recycle or compost the material in accordance with a plan submitted pursuant to 310 CMR 19.017(6) and approved by the Department.”

Accordingly, every solid waste management facility must remove or divert from disposal  waste ban materials in accordance with a waste ban compliance plan approved by MassDEP, and modify such plans to address newly banned materials.

The law aims to encourage job growth, capture resources, save energy, and reduce greenhouse gas emissions. Restricted materials, to which textiles and mattresses will be added, include:

• Asphalt pavement, brick and concrete
• Cathode ray tubes
• Clean gypsum wallboard
• Commercial food material
• Ferrous and non-ferrous metals
• Glass and metal containers
• Lead acid batteries
• Leaves and yard waste
• Recyclable paper, cardboard, and paperboard
• Single-resin narrow-necked plastic containers
• Treated and untreated wood and wood waste
• White goods
• Whole tires

The regulation allows for limited exceptions to these restrictions, as well as de minimis quantities for disposal, “as determined by the Department.” However, failure to otherwise comply with approved waste ban plans or permit conditions constitutes a violation of 310 CMR 19.000 and may result in enforcement action pursuant to 310 CMR 19.081.

Proposed Amendments

The proposed amendments to the waste ban would add mattresses and textiles as materials for which disposal is restricted, as well as reduce the threshold for prohibited commercial food waste from 1 ton per week to 0.5 tons per week. “Textiles” would include “clothing, clean footwear, bedding, towels, curtains, fabric, and similar products.” The amendments would specifically prohibit the disposal, incineration, or transfer for disposal of textiles, with an effective date of October 21, 2021 for landfills, combustion facilities, and transfer facilities. Per updates to guidance, textiles should be estimated as a percentage of waste load, with an action level of 10% by volume.

Implications and Future Considerations

The waste restrictions are one part of a larger Massachusetts effort to prioritize textiles for diversion, reducing residential textile waste, increasing reuse and donation, and developing local markets for textile recycling, reuse, and management. This broader effort is captured in the Draft 2030 Solid Waste Master Plan, which MassDEP is currently finalizing following the end of its comment period in September 2020. Read more on the Master Plan in B&D’s coverage during the comment period.

Massachusetts is not alone in its focus on the textile industry to address growing waste issues—both in the United States and internationally. In February 2020, France passed an anti-waste law explicitly banning the disposal of unsold clothing, requiring that it instead be recycled or donated. The French law and Massachusetts proposal could serve as models for other jurisdictions seeking to embrace circularity—an expansion that would have material implications for apparel, footwear, and other manufacturers and retailers with limited options for managing waste. These waste restrictions may also present heightened challenges in the wake of the COVID-19 pandemic, where a significant amount of retail goods remain unsold.

Ultimately, these new laws will require stakeholders in the linear apparel and footwear industry —from direct-to-consumer brands to textile manufacturers—to seek new end-of-life solutions or alternative waste streams. Many retailers and manufacturers are responding to mounting pressures by proactively embracing circular models, offering customers take-back programs and options for textile reuse and recycling. Such strategic approaches to end-of-life product management anticipate the likely changes to come and mitigate risk should similar bans on textile waste arise with greater frequency.

With an office in Boston, Beveridge & Diamond's Air, Climate Change; Consumer Products; Product Stewardship, Global Supply Chains; and Waste, Recycling practices work with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. Our Massachusetts waste practice helps clients comply with constantly-changing requirements, minimize exposures to environmental liabilities, develop business opportunities, and enhance profitability. For more information, please contact the authors.