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Proposed regulations issued on July 10, 2013 by the Executive Office of Energy and Environmental Affairs (“EOEA”) and the Massachusetts Department of Environmental Protection (“MassDEP”) could impact supermarkets, malls, public schools and college campuses by requiring the separation and alternate disposal of food and other organic waste.

The proposed regulatory changes to the waste disposal regulations at 310 CMR 19.000 would add “commercial organic material,” defined as “food material and vegetative material from any entity that generates more than one ton of those materials for solid waste disposal per week, but excludes material from a residence,” to the list of materials banned from landfill disposal. MassDEP’s draft guidance suggests that food material include, among other items, packaged foods (with the packaging removed at the point of generation), pet food, meats and dairy products.

Waste bans are prohibitions on the disposal, transfer for disposal or contract for disposal of certain restricted materials at solid waste facilities in Massachusetts. The Commonwealth’s goal in restricting such disposal is to promote reuse, recycling and waste reduction.

MassDEP notes in its guidance for the proposed revisions that businesses potentially subject to the ban include supermarkets, colleges and universities, large secondary schools, large restaurants and hotels, food manufacturers and processors, hospitals and nursing homes. MassDEP contends that the ban is tailored to address concerns from small businesses by exempting entities, such as residential uses, most restaurants, convenience stores, small markets, and schools, that dispose of less than one ton of organic material per week.

As of July 1, 2014, solid waste facilities, which are required to monitor, separate or refuse shipments of waste to these facilities that contain banned waste, will not be able to accept such food waste for disposal. While the solid waste facility is required to have a plan to monitor, separate and/or reject disposal of such waste, the regulations impose a duty to separate the banned material on “any person disposing or contracting for disposal or transport of solid waste or restricted materials.” Accordingly, while an entity may contract for the disposal of its waste, it is still required to separate its organic waste where it generates more than one ton per week.

For purposes of the proposed waste ban, MassDEP suggests in its draft guidance that the following types of entities would be regulated under the proposed revisions:

• Supermarket or other chain stores – The application of the one ton threshold would be based on the amount disposed of per location, rather than the entire chain. Therefore, if one location disposes of greater than one ton of commercial organic material per week, that location would be subject to the ban; 
• Campuses and schools – Campuses (educational or corporate) under common ownership that dispose of more than one ton of commercial organic material per week collectively from cafeterias and catering (but not residential sources), are subject to the ban. If all buildings on the campus do not generate more than one ton of commercial organic material per week, then the campus is not subject to the ban. If, however, a small food service company operates at the Campus and contracts separately for disposal, it would not be subject to the ban if it generates less than one ton of commercial organic material per week; 
• Campus with multiple satellite locations – Campuses with multiple locations are not combined for purposes of calculating waste generations. Rather, each location is treated separately; and 
• Shopping Mall – If a shopping mall operator contracts for disposal of all waste at the facility and the facility generates more than one ton of commercial organic material per week, the ban would apply. If waste is contracted for disposal by individual entities, each would be analyzed separately.

Of note, MassDEP suggests in its draft guidance that, in the case of chains, even if each individual location disposes of less than one ton of commercial organic material per week, it may still be worthwhile to divert organics to save disposal costs.

In addition, if a location disposes of greater than one ton of commercial organic material per week at certain times during the year, the ban applies only during those periods. If the waste generation exceeding one ton is only seasonal, during weeks where disposal is less than one ton of commercial organic material per week, the ban does not apply.

Interestingly, MassDEP does provide draft guidance on the potential size of the institution or facility that might generate more than one ton of commercial organic material per week. While not official regulatory thresholds, the following provide some guidance as to the size of certain facilities that may be subject to the proposed waste ban, including: 

• College – 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; and 
• Supermarket – 35 or more full time employees.

In its proposed supporting guidance, MassDEP provides three possible avenues for reducing organic waste. These include reducing the waste stream generated, donating unused food to food banks, soup kitchens or shelter, and offsite processing such as anaerobic digesters, animal feed or composting.

310 CMR 19.017(5) provides a narrow exemption to the waste ban requirements that allow for temporary disposal of restricted materials, with prior notification and approval by MassDEP, where a material is contaminated or otherwise unfit for recycling or composting and the recycling or composting operation that would normally accept the restricted material declines to or is prohibited from accepting the material. The party generating or contracting to dispose of the restricted material in this manner must show that it is taking the necessary action to prevent recurrence of the conditions that contaminated the restricted material.

At the same time, EOEA announced $3 million in low-interest loans available to private companies building anaerobic digestion facilities for the conversion of food waste into renewable energy. The low-interest loans will be administered by BCD Capital through MassDEP’s Recycling Loan Fund, with monies provided by the Department of Energy Resources.

While the comment period for the proposed regulations has ended and some changes may occur, it is expected that the regulations will be adopted and implemented by July 1, 2014. Since there appear to be potential cost and environmental benefits to reducing food waste disposal in landfills, all potentially impacted entities should begin to investigate alternate disposal methods.

The proposed regulations can be reviewed at http://www.mass.gov/eea/docs/dep/service/regulations/proposed/orgdreg.pdf.

This advisory was prepared by Matthew H. Snell and Michael A. Leon of the Land Use, Permitting and Development practice group at Nutter McClennen & Fish LLP. For more information, please contact Matt, Michael or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.