California’s Short-Lived Climate Pollutants organic waste and food collection regulation[1] (SLCP) becomes enforceable on January 1, 2022. This alert outlines the portion of the regulation that applies to businesses with California locations that generate organic and/or food waste. 

Summary of Upcoming Requirements

On or before January 1, 2022:

1. Persons who generate organic waste must comply with local requirements for collection and recovery of organic waste onsite and with use of collection services or through self-hauling. Organic waste includes food and green waste, but is also broadly defined to include organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges.
    
2. Commercial businesses that generate organic waste must also comply with specifications for use and placement of collection containers, employee education, prohibition from placing organic waste in an incorrect container, and periodic inspection.
    
3. Certain commercial edible food generators (supermarkets, large grocery stores, food service providers, food distributors, and whole sale food vendors) must arrange to recover the maximum amount of edible food that would otherwise be disposed by entering written agreements with food recovery organizations or services to collect and recover the food, or accept self-hauled food. 

Background

Senate Bill (SB) 1383 was passed in 2016 as part of California’s broader climate strategy. It is intended to build on existing organic waste reduction laws (i.e., AB 1826 Mandatory Commercial Organics Recycling Law, requiring covered businesses that generate 2 cubic yards or more of solid waste to arrange for organic waste recycling) and in conjunction with the California Air Resources Board regulations of methane emissions. The purpose of SB 1383 is to divert and reduce the disposal of organic waste and thereby reduce the amount of methane emissions from landfills.

SB 1383 required the California Department of Resources, Recycling and Recovery (“CalRecycle”) to adopt the SLCP implementing regulation by January 1, 2020, in consultation with the Air Resources Board. The SLCP regulation is implemented through a progressive schedule, and local jurisdictions are required to adopt consistent ordinances. CalRecycle enforcement goes into effect on January 1, 2022, and local enforcement begins January 1, 2024. 

Key Organic Waste Collection Requirements

Summary of Requirements

Any person that is responsible for the initial creation of organic waste must collect and divert that waste and comply with the local requirements for organic waste collection and recovery. CalRecycle can begin enforcing these requirements on January 1, 2022. Local jurisdictions may also perform waste evaluations to check for compliance. 

Commercial businesses, except for multifamily residential dwellings, that are organic waste generators have additional requirements for placement and labeling of collection bins, inspection, and training. Businesses are expected to prohibit employees from disposing of organic waste in the wrong bins. 

Owners must provide new tenants organic waste collection information within 14 days of occupation.

Applicable Exemptions

The SLCP regulation defines a handful of waivers. Local jurisdictions may grant several waivers to organic waste generators for de minimus organic waste generation, physical space limitations, or collection frequency limitations. Local jurisdictions may also pursue waivers or exemptions from their requirements due to low population, rural location, or higher elevation location. The SLCP regulation and related local ordinances should be consulted for specific eligibility requirements.

Key Edible Food Recovery Requirements

Summary of Requirements

The SLCP regulation phases in additional edible food collection and recovery requirements for two tiers of commercial edible food generators, which applies to any food intended for human consumption.

Tier One includes supermarkets with gross annual revenues of $2 million or more, grocery stores with a total facility size equal to or greater than 10,000 square feet, food service providers, food distributors, and wholesale food vendors. 

Tier Two includes restaurants with 250 or more seats or a total facility size equal to or greater than 5,000 square feet; hotels with an on-site food facility and 200 or more rooms; health facilities with an on-site food facility and 100 or more beds; large venues or events; state agencies with a cafeteria with 250 or more seats or a total cafeteria facilities size equal to or greater than 5,000 square feet; or local education agencies with on-site food facilities.

Covered commercial businesses that generate edible food must arrange for collection and recovery of the edible food that would otherwise be disposed and must avoid intentionally allowing food to spoil. The businesses have recordkeeping requirements and are required to either enter into written agreements with food recovery organizations or services for the collection of the edible food, or with food recovery organizations for the acceptance of self-hauled food.

Tier One commercial edible food generators must comply with these requirements by January 1, 2022, and Tier Two must comply by January 1, 2024.

Applicable Exemptions

The SLCP regulation places the ultimate burden of meeting the edible food waste reduction goal on local jurisdictions that are required to increase local food recovery capacities. A commercial entity may be excused from the edible food recovery requirements if it can demonstrate that compliance is impracticable because the local jurisdiction failed to increase the food recovery capacity or if compliance was impracticable due to acts of God.

Implications and Next Steps

Organic waste generators and Tier One commercial edible food generators have until January 1, 2022 to comply with the SLCP collection and recovery requirements summarized above. For now, businesses subject to the regulations should consider preparing compliance strategies and evaluating waivers. It is imperative that covered businesses also track how local jurisdictions are updating collection services and adopting related ordinances in order to fully evaluate requirements. 

Organic waste generators who generate more than 2 cubic yards of organic waste per week can also anticipate local jurisdiction inspections for organic waste collection compliance, in harmony with AB 1826 Mandatory Commercial Organics Recycling Law. Commercial edible food generators can anticipate local jurisdictions reaching out with educational materials after the New Year. 

CalRecylce may seek penalties for noncompliance and local jurisdictions are authorized to adopt additional penalties that become enforceable on January 1, 2024. Meanwhile, Tier Two commercial edible food generators should stay up to date on the implementation and enforcement of the edible food recovery requirements for Tier One generators to benchmark compliance strategies before Tier Two compliance becomes enforceable on January 1, 2024. 

Businesses with facilities located outside of California should also be aware of existing and potential new organic and food waste regulations in these other jurisdictions. Several other jurisdictions have mandatory organic waste recycling or landfill ban laws. Additional jurisdictions will likely pass similar laws in the coming years as local capacities to collect and manage organic waste outside of landfills continue to grow. And while California is the first with a statewide edible food recovery regulation, New York is also implementing a statewide mandatory food donation and recycling law beginning January 1, 2022.[2] Other states will likely consider implementing similar food collection laws in the near future.

Beveridge & Diamond's Waste and Recycling practice group and Waste Treatment, Recycling, and Disposal Services industry group advise companies and municipalities on organic waste issues, including compliance counseling, litigation, and regulatory advocacy under federal and state law. We help clients comply with constantly-changing requirements, minimize exposures to environmental liabilities, develop business opportunities, and enhance profitability. For more information, please contact the authors.