Recycling Policy

Flow control a growing hurdle for C&D as local governments use new 90/10 rules to broaden control of disposal revenue

By John Yeasting

What is a recyclable? As new regulations on materials and operations are increasingly impacting C&D recycling across the country, a new more fundamental threat looms. The question of whether comingled construction and demolition debris is a “recyclable,” or should be regulated similar to municipal solid waste. While C&D debris has generally been embraced as a recyclable as our industry has emerged over the past two decades, this is largely defined at the state level, and some government agencies seem to have changing agendas after a prolonged recession that has zapped their budgets. Most local solid waste programs have their funding tied in some way to disposal taxes. The combination of dramatic decreases in total C&D tonnage generated and the increased diversion by C&D recyclers has some local governments in Washington State characterizing C&D recycling as “leaking” solid waste revenue which should be rightfully captured by solid waste “flow control” policy.

During much of the emergence of the C&D recycling industry, flow control was broadly considered unconstitutional following the 1994 C&A Carbone v. Clarkstown decision by the U.S. Supreme Court, so the question of whether or not C&D debris could fall within its grasp was less relevant. However, in 2007, the Court narrowed the impact of the Carbone decision with its ruling on the United Haulers Association v. Oneida–Herkimer Counties case, effectively restoring the ability of some counties with publicly owned infrastructure to pursue flow control policies. Now the question of whether C&D debris, a waste stream that was never traditionally handled through most public transfer stations before 1994, can fall within the grasp of flow control is suddenly relevant again.

The City of Seattle and more recently, neighboring Snohomish County, Wash., have enacted new 90/10 rules to help strengthen their ability to flow control C&D debris. What is a 90/10 rule? A 90/10 rule effectively says that in order to be considered a recyclable, a load must be at least 90 % recyclable, and if it is more than 10% non-recyclable, then the entire load shall be treated as garbage.

On February 16, 2011, the Snohomish County Council revised code sections 7.35 and 7.41 to say that any load containing more than 10% non-recyclable materials, must be hauled to their transfer stations for disposal at $105/ton. In Washington State, this is especially problematic because the state law says that no recycling hauler collecting C&D debris for recycling shall deliver collected loads to a transfer station or landfill for the purposes of disposal, language embraced by the state’s C&D recyclers to help deter sham recycling and push materials into material recovery facilities. Interestingly, all three of the nation’s largest landfill companies vigorously supported the new 90/10 ordinance in Snohomish County, with one regional executive testifying “home owners sort their recyclables to the 90/10 standard with a two can system, and there is no reason contractors can’t do the same.” Perhaps because Snohomish County’s waste is entirely long hauled by rail to one of their private regional landfills?

Snohomish County staff says they recognize a 90/10 load might not be recycled at 90%, and that the MRF recycling rate will not be used to determine whether the load is 90% recyclable, but could not say what method would be used, only that “they’ll know.” This is somewhat ominous because the county has requisitioned two sheriffs’ deputies full-time for this task, and has laid out a schedule of hefty fines to be levied for violations. With the ordinance only just being implemented, it’s still too early to know exactly how enforcement actions will be taken and what the full impact on recycling will be in Snohomish County. However, it seems clear that Snohomish County anticipates capturing a substantial amount of disposal fee revenue for material that has previously been diverted by C&D recyclers, as they have allocated nearly a quarter million dollars just for deputy costs.

Unfortunately, conveying the practical realities of C&D recycling to council members and solid waste agency staff has proven difficult, and the questions and concerns related to the implementation of this ordinance are vast for local recyclers. The ordinance also declared use of C&D fines or residuals for alternative daily cover (ADC) or industrial waste stabilizer does not count as recycling. Without counting ADC, the best C&D recyclers across the country cannot approach a 90% recycling rate, as some 20% or more of most commingled C&D loads consist of fines. This would seem to make meeting the 90/10 standard impossible before they’ve even started. In fact, this new rule will send loads that appear 80% or 85% recyclable, straight back into the landfill, with no opportunity for any recycling.

So this brings us back to what is a recyclable? C&D recyclers are constantly changing the answer to this question through entrepreneurial innovations, to increase their recovery rates and decrease their disposal costs. Whether finding a Pacific Rim export market for baled PVC siding and pipe, or finding an acoustics manufacturer to use fiberglass insulation and old ceiling tiles in making new ones, this dynamic nature of C&D recycling is an inherent part of our industry. Unfortunately, 90/10 rules look backward to determine what is recyclable, and strip the incentive for innovation out of the system, ultimately working against the original policy objectives.

Similar to the way fuel efficient vehicles can reduce DOT budgets through reduced gasoline taxes, expanded C&D recycling can impinge solid waste program budgets by reducing disposal tax revenue. We must find a way to fund solid waste programs without disincentivizing recycling. The solution to DOT funding is not to heap new taxes on fuel efficient vehicles, and the solution to solid waste program funding is not to tax and regulate C&D recyclers out of existence.

The industry must work with local governments across the country to avoid these types of policy train wrecks that can derail real recycling. We need to stop the regressive approach of “presumed garbage until proven recyclable,” and develop a “recycling first” mentality, where materials are presumed recyclable until no other home can be found.

John Yeasting is a member of the board of the Construction Materials Recycling Association and the founding president of its Northwest Chapter (www.greatnwrecyclers.org). He has spent more than 18 years in the industry in public and private sector roles, and currently works with Lautenbach Industries, a C&D recycler in Mount Vernon, Wash.

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