Agenda for SWRR II Recycling Subgroup Meeting #3
12/7/11
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Mr. Steve Cheatham of the Recycling Foundation will attend to discuss recycling markets, incentives,
disincentives, etc.
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Time permitting, continue discussing the Woodwaste Management below. Please read the proposal and be
prepared for discussion.
How best to allow persons to divert, transport, & use valuable wood or other vegetative components salvaged from
solid waste, provide unambiguous regulatory applicability, and adequately protect human health & environment.
A. Is there a problem with how wood waste and/or yard trash is currently regulated?
1. Yes
2. No
3. Analysis of current situation:
a. Regulations lack clarity
b. Regulatory interpretation is not correct or consistent
B. How can wood waste regulations be improved to explicitly allow beneficial salvage?
1. Change definitions in the regulations:
a. Define discard,
b. Revise wood waste,
c. Revise yard trash
d. Define speculative accumulation?
2. Provide exemption to solid waste in Section 301
3. Provide exemption to permitting or processing or disposal standards in Section 303
a. Exempt materials salvaged from wood waste
b. Exempt wood waste altogether
C. How can regulatory interpretation be improved?
1. DEQ needs to develop a policy
2. DEQ needs to communicate that policy
D. Are there other regulations that might need to be changed?
1. Movers of Section 303 exempt wastes are still subject to transporter requirements
2. Movers of 303 wastes are subject to transporter requirements per 401 A and 509 A.3
3. Generators of 303 wastes are prohibited from offering solid waste to un-authorized transporters
per 315 O
A. Is there a problem with how wood waste and/or yard trash is currently regulated?
1.
Yes. According to current regulations, anything discarded is a solid waste, (including wood waste which
includes yard trash per 115 definitions of all three) which can only be offered to an authorized transporter
(per 315.O) who can only deliver it to “facilities permitted to receive such waste” (per 505.D). No one can
legally divert or remove from the waste stream anything of perceived value such as tree trunks, tree limbs,
ornamental shrubs, flower bulbs, collected leaves or grass clippings, etc. if it is discarded. Therefore, many
well-intentioned people are subject to confrontation as lawbreakers if a neighbor’s complaint prompts a
DEQ investigation.
The problem appears rooted in what constitutes discard - who makes discard determinations, when, and
whether discard determinations are permanent (once a waste, always a waste, to point of disposal?) or
flexible (generator can ‘change his mind’, or anyone along the waste chain-of-custody toward disposal can
un-discard or salvage all or part of collected discarded waste?).
2.
No. Materials not discarded are not solid waste (per 115 definition of solid waste). Discarded materials
awaiting collection (on curb, with or without containment) are exempt from SW regulations “while they are
stored at residences or commercial establishments and regulated by local ordinance” (per 301.A.1.e). A
residential generator who does not self-transport can only offer discarded material to a regulated transporter
for off-site removal (per 315.O), but can offer non-discarded material to whomever he pleases. Nondiscarded material can be transported by anyone to anywhere. Regulated transporters may accept a mixed
stream of discarded and non-discarded materials, but they are only obligated to deliver discarded material
“to facilities permitted to receive such waste” (per 505.D). Non-regulated transporters can only accept nondiscarded materials, and may become waste generators at a later point after value has been extracted from
collected non-discarded material.
In effect, therefore, only discarded materials that arrive at permitted waste facilities are regulated solid
waste, from point-of-generation to disposal, even if they move in a mixed stream with non-discarded
material diverted for legitimate use. However, non-discarded material speculatively accumulated and not
utilized for any perceived value can be determined by regulators to be disposed-in-place and therefore
regulated solid waste subject to enforcement, unless otherwise managed under an LDAF-approved best
management practices plan (BMP) or specific DEQ administrative action (beneficial use permit or
petitioned exemption).
3.
Analysis:
Currently, many innocent people violate some aspect of solid waste regulation, but only referrals to DEQ
get much scrutiny. ‘Selective enforcement’ becomes a weapon in the hands of plaintiffs bearing grudges.
Perhaps a problem exists because either
a. Regulations lack clarity. Solid waste regulations do not explicitly allow salvage of wood waste or
yard waste for legitimate purposes (clear loophole provisions hard to identify by anyone) and therefore
definitions/regulations must be added/changed, or
b. Regulatory interpretation is not correct or consistent. DEQ personnel do not consistently interpret
current solid waste definitions/regulations to condone legitimate diversion or salvage (no agreement on,
or knowledge of provision loopholes) and therefore interpretive policy must be implemented within
DEQ.
B. How can wood waste regulations be improved to explicitly allow beneficial salvage?
1.
Change definitions in the regulations. Revising definitions may be the best approach to distinguish
materials claimed to have perceived legitimate value from waste that should be regulated, and so avoid reengineering the existing text of waste regulations that follow the definitions in 115. Per the definition of
solid waste, discarded material is waste, so a clear definition of discard could set apart non-discarded
materials as non-waste, whether physically segregated or in a mixed stream of waste and non-waste
materials. Mixtures are a very common scenario where the term ‘salvage’ is often applied to someone
segregating non-discarded from discarded materials. Who has authority to make or even countermand
discard determinations?
a.
Define discard. Defining ‘discard’ may best clarify when material becomes solid waste, but not
necessarily where the determination begins or how securely the determination ‘sticks’ if a nongenerator wants to re-determine material as non-waste for legitimate use. Consider the following:
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If a home-owner or business places tree limbs and shrubs (for example) on a curb spot
generally recognized for trash pick-up, are they discarded?
Are curb-placed materials (in containers or otherwise) not yet regulated as solid waste, per
301.A.1.e?
If a day later someone wants all or part of what is placed on the curb for regular waste pick-up,
does he need the generator’s permission?
Can a generator declare something discarded one day, and change his mind the next?
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Can a registered transporter pick-up a mixture of discarded and non-discarded material, and
only deliver the discarded material to a permitted processing/disposal facility?
Can a registered transporter determine that some of his curb pick-up load is non-discarded
without generator permission, or even countermand a generator’s ‘implied’ discard
determination (‘if its on the curb for pick-up, generator considers it waste’)?
The definition of discard from Part V Hazardous Waste is as follows:
Discarded – a material is discarded if it is abandoned (and not used, re-used, reclaimed, or recycled)
by being disposed of; or burned or incinerated, except where the material is being burned as a fuel for
the purpose of recovering usable energy; or physically, chemically, or biologically treated (other than
burned or incinerated) in lieu of or prior to being disposed of.
A proposed definition of discard for Part VII Solid Waste is as follows:
Discarded – a material is discarded if it is abandoned with no apparent value, or in transit to a disposal
facility, or received by a disposal facility, and not otherwise purposed for use, re-use, reclamation,
recycling, fuel for energy recovery, permitted beneficial use, beneficial use in accordance with a Best
Management Practice Plan approved in writing by the Department of Agriculture, or treatment
(physical, chemical, biological) in lieu of or prior to being disposed of. Speculatively accumulated
material may be deemed discarded if it loses value or presents potential harm to human health and
environment, as determined by the Administrative Authority.
b.
Revise wood waste. If these mixed material streams cannot avoid being defined as discarded, perhaps
their definitions can be qualified to exclude components commonly perceived to have value.
Woodwaste—yard trash and types of waste generated by land and right-of-way clearing operations,
sawmills, plywood mills, and woodyards associated with the lumber and paper industry, such as wood
residue, cutoffs, wood chips, sawdust, wood shavings, bark, wood refuse, wood-fired boiler ash, wood
ash, and plywood or other bonded materials that contain only polyurethane, phenolic-based glues, or
other glues that are approved specifically by the administrative authority. Uncontaminated, un-treated
or un-painted lumber or wooden pallets are considered woodwaste under this definition. Woodwaste
shall not include valuable materials salvaged with permission from the generator for private or
commercial uses such as construction lumber, residential firewood, food preparation, pulp wood,
landscaping mulch, and decorative art.
c. Revise yard trash.
Yard Trash—vegetative matter resulting from landscaping, maintenance, or land-clearing operations,
including trees and shrubbery, leaves and limbs, stumps, grass clippings, and flowers. Yard trash shall
not include valuable materials salvaged with permission from the generator for private or commercial
uses such as construction lumber, residential firewood, food preparation, pulp wood, landscaping
mulch, decorative art, cuttings for propagation, and live ornamental or food-producing plants.
d.
Define speculative accumulation. This is not an easy task, but some provision should be made to
allow gathering and storage of marginally valuable material for beneficial use – within limits of
causing environmental harm, public nuisance, or public liability for disposal.
Speculative Accumulation – storage of materials diverted from or otherwise discarded as solid waste,
intended for recycling, re-use, or beneficial use opportunities, up to such time that these materials
present unacceptable risk to human health or environment, public nuisance, or public financial liability
for disposal, as determined by state or local administrative authorities.
2.
Provide exemption to solid waste in Section 301. If amending definitions is not advisable, salvaged
material from wood waste and yard trash may be exempted from solid waste in Section 301, which would
avoid regulatory complications for generators, transporters, receivers, and processors. Section 301.A.1
exempts wastes regulated under other authorities, while A.2 addresses wastes exempted by the
Environmental Quality Act. Herewith is a proposed new exemption category A.3 for ‘recycled’,
‘beneficially re-used’, or ‘salvaged’ materials diverted from solid waste, as underlined:
301 Exempted Waste
A. All solid wastes, as defined by the Act and these regulations, are subject to the provisions of these
regulations, except as follows:
3. Materials separated and diverted from solid waste and therefore not processed or disposed of in
solid waste facilities permitted under these regulations, including but not limited to, the following:
a. Valuable materials salvaged from wood waste or yard trash with permission from the generator
for private or commercial uses such as construction lumber, residential firewood, food
preparation, pulp wood, landscaping mulch, decorative art, cuttings for propagation, and live
ornamental or food-producing plants.
This proposed paragraph provides a place to amend for other materials identified in the future, (such as an
A.3.b for used cooking oil and grease waste, A.3.c for salvaged construction/demolition materials, A.3.d
for discarded articles such as furniture/appliances/fixtures/metal/hardware, etc.).
3.
Provide exemption to permitting or processing or disposal standards in Section 303. If exempting
salvaged materials from solid waste by re-definition or Section 301 inclusion is unacceptable, perhaps they
can be acknowledged as solid waste, but exempt from some regulation in Section 303 “when processed or
disposed of in an environmentally sound manner”.
a.
Exempt materials salvaged from wood waste The following proposal is underlined – but does not
need to be numbered 14 if a better placement is before 10. (Again, 303 might be a good place to
exempt used cooking oil & grease waste et al if 301 is inappropriate.)
303
Wastes Not Subject to the Permitting Requirements or Processing or Disposal
Standards of These Regulations
A. The following solid wastes, when processed or disposed of in an environmentally sound
manner, are not subject to the permitting requirements or processing or disposal standards
of these regulations:
10. woodwastes that are beneficially-used in accordance with a Best Management
Practice Plan approved in writing by the Department of Agriculture and submitted to
the Office of Environmental Services, provided that the generator notifies the Office
of Environmental Services of such activity at each site in accordance with LAC
33:VII.401.A. Woodwastes not being properly managed in accordance with the Best
Management Practice Plan approved by the Department of Agriculture do not meet
this exemption.
11. solid wastes reused in a manner protective of human health and the environment, as
demonstrated by a soil reuse plan or beneficial use plan prepared in accordance with
LAC 33:VII.Chapter 11 and approved by the administrative authority;
12. other wastes deemed acceptable by the administrative authority based on possible
environmental impact; and
13. spent blasting sand generated from the preparation of unpainted surfaces. ; and
14. valuable materials salvaged from wood waste or yard trash with permission from the
generator for private or commercial uses such as construction lumber, residential
firewood, food preparation, pulp wood, landscaping mulch, decorative art, cuttings for
propagation, and live ornamental or food-producing plants.
b.
Exempt wood waste altogether. 303 A.6 already exempts “brick, stone, reinforced and
unreinforced concrete, and asphaltic roadbeds” which present nearly the same visual nuisance
and animal vector risks to the public as wood waste & yard trash if processed or disposed in
an environmentally un-sound manner (except perhaps termite colony incubation). Nature
drops wood waste on undeveloped land every day for natural, biodegradable recycling, so
why must the state (LDEQ) regulate transport, beneficial use, recycling, processing, or land
abandonment disposal of wood waste & yard trash? Instead, why not leave regulatory
oversight of wood waste and yard trash management to parish & local governments which
can best protect citizens from nuisance activities and conserve property values? Besides, the
state (LDEQ) can always exert enforcement authority if 303 materials are ever managed in an
environmentally un-sound manner (too subjective?), and thus revert to fully regulated solid
waste. State law already regulates air emissions (no burning or processing without permit)
and water quality protection (no discharge or dumping into water bodies without permit).
Otherwise, it’s a stretch to argue that beneficially using, recycling, processing, or land
abandonment disposal of wood waste & yard trash presents any substantive threat to human
health & environment. The following proposal has additions underlined or deletions struck
out:
303 Wastes Not Subject to the Permitting Requirements or Processing or Disposal
Standards of These Regulations
A. The following solid wastes, when processed or disposed of in an environmentally sound
manner, are not subject to the permitting requirements or processing or disposal standards of
these regulations:
1.
wastes resulting from land and right-of-way clearing (trees, stumps) and disposed of on the
site where generated; woodwastes and yard trash whether beneficially used, recycled,
processed, or land abandonment disposed, and which remain fully subject to state and/or
federal air & water regulations and notwithstanding any parish or municipal ordinance
control.
10. woodwastes that are beneficially-used in accordance with a Best Management Practice Plan
approved in writing by the Department of Agriculture and submitted to the Office of
Environmental Services, provided that the generator notifies the Office of Environmental
Services of such activity at each site in accordance with LAC 33:VII.401.A. Woodwastes not
being properly managed in accordance with the Best Management Practice Plan approved by
the Department of Agriculture do not meet this exemption.
C. How can regulatory interpretation be improved?
1.
DEQ needs to develop a policy
2.
DEQ needs to communicate that policy
D. Are there other regulations that might need to be changed?
1.
Movers of Section 303 exempt wastes are still subject to transporter requirements. Section 303
wastes are still solid wastes, exempt only from the permitting requirements or processing or disposal
standards of the regulations. Per definition of transporter, movers of any solid wastes are subject to
transporter requirements only when they move solid waste off-site to a permitted facility, but exempt when
moving solid waste anywhere else, or moving their own residential solid waste to a permitted facility.
The definition does not exclude from transportation requirements persons or businesses who move their
own non-residential waste (commercial, industrial?). The definition appears to exclude from transporter
requirements any person who moves any waste anywhere off-site except to transfer stations, or processing
facilities, or disposal facilities. Therefore movers of 303 exempt wastes are not transporters unless they
deliver to regulated facilities and non-regulated commercial processors. Therefore, per definition, anyone
who picks up a bag of curbside leaves for mulch, or salvages a load of curbside branches for firewood (with
generator permission) and takes it to his home is not a transporter. If the same person moves the same
salvaged material to any ‘processing facility’ (composter of leaves, cutter of firewood) then he is a
transporter. Perhaps the transporter definition can be clarified to exclude movers of 303 solid waste
(salvaged material) who deliver to un-regulated commercial processors.
Proposed new language is
underlined below:
115 Definitions
Transporter - any person who moves solid waste subject to the permitting requirements or processing or
disposal standards of these regulations, off-site to a non-processing transfer station or a collection,
processing, or disposal facility, excluding individuals who transport their own residential waste to a
collection facility, non-processing transfer station, or permitted processing facility and/or solid waste
landfill.
2.
Movers of 303 wastes are subject to transporter requirements per 401 A and 509 A.3. These should
be changed to exclude movers of 303 exempt waste materials being transferred off-site to non-permitted
facilities. Proposed new language is underlined below:
401 Notification
A. Persons who generate industrial solid waste and/or persons who transport, process, or dispose of solid
waste subject to the permitting requirements or processing or disposal standards of these regulations,
shall, within 30 days after they become subject to these regulations, notify the Office of Environmental
Services in writing of such activity. A form to be used for notification shall be obtained from the
Office of Environmental Services or through the department's website.
509 Permit System
A. Scope
3. Transporters that are not processors or disposers of solid waste are not required to secure a permit.
Transporters of solid waste subject to the permitting requirements or processing or disposal
standards of these regulations, shall notify the Office of Environmental Services in accordance with
LAC 33:VII.401.A and B. Transporters of solid waste are subject to the applicable standards
provided in LAC 33:VII.505.
3.
Generators of 303 wastes are prohibited from offering solid waste to un-authorized transporters (per
315 O). This rule taken alone plainly disallows generators from granting permission to non-regulated
transporters to move their 303 exempt waste. Without clarification, any waste mover is a transporter and
therefore subject to transporter requirements. This should be changed to allow generators to offer 303
exempt waste materials for off-site transfer to non-permitted treatment, processing or disposal facilities.
Proposed new language is underlined below:
315 Mandatory Provisions
O. Generators shall not offer solid waste, subject to the permitting requirements or processing or disposal
standards of these regulations, to transporters, processing facilities, or disposal facilities that have not
received authorization and/or the required permits necessary to receive and/or manage the generator’s
solid waste.