Massachusetts Sets The Table For An Organics Ban

The state recently issued final rules amending its solid waste site assignment and wastewater regulations, streamlining permitting of facilities needed to process materials generated by an expected disposal ban on commercial and institutional organics. Part I

Zoë Neale
BioCycle December 2012, Vol. 53, No. 12, p. 30

Massachusetts, a state long considered to be a national leader in progressive environmental policy, recently approved a much anticipated set of revised regulations governing facilities that process organic waste. The overarching purpose of the changes is to eliminate regulatory uncertainty, with the intent of providing a clear pathway for development of anaerobic digesters and other processing approaches that will divert organics from landfills and combustion facilities. The timing of the changes is in anticipation of Massachusetts’ regulators’ plan to apply a ban from disposal to large (>1 ton per week) institutional and commercial organic waste generators in June 2014.

Formal announcement of the ban occurred in November 2011 with the launch of the Clean Energy Results Program (CERP; www.mass.gov/dep/public/press/1111cean.htm) by the Executive Office of Energy and Environmental Affairs (OEEA), although the original concept was part of the Beyond 2000 Solid Waste Master Plan: A Policy Framework, issued in December 2000. The CERP, designed to encourage clean energy projects in Massachusetts by streamlining technical and regulatory barriers, has several goals that, if met, will enhance the state’s standing as the most energy efficient in the country.

Organics diversion and processing play an important role in CERP with specific goals that relate to organics. These include: 1) Three anaerobic digestion (AD)/Combined Heat and Power (CHP) projects in operation by 2014; 2) Increased energy production from aerobic composting and AD to 50 megawatts (375 GWh/y) by 2020; and 3) Diversion of an incremental 350,000 tons/year of organic material from landfills and incinerators by 2020. The launch of CERP represented several years of work across multiple state agencies with the Massachusetts Department of Environmental Protection (MassDEP) responsible for the bulk of the organics section. (Other state agencies included Department of Energy Resources, Massachusetts Clean Energy Center, Division of Capital Asset Management and Department of Agricultural Resources).

As MassDEP staff work to achieve these targets, they have run a structured process that incorporates the concerns of many different constituencies into the regulations while remaining acutely aware of the challenges that implementation potentially poses to generators, haulers and processors. This article describes both the regulatory changes as well as other elements of the plan, all of which are critical components of “setting the table” for the upcoming organics ban.

An integral part of CERP involved development of an action plan that identified and addressed obstacles and barriers to implementation of the state’s organics diversion goals. The action plan sets out initiatives for the state to pursue over the next few years in four areas: Data analysis, collection infrastructure, processing capacity/market development and regulatory reform/waste ban. Aside from the recent regulatory revisions, progress to date includes updating a statewide food density map, conducting waste characterization surveys of state facilities, technical assistance programs, low interest loans to assist with organics collection, and grants for municipal and technology feasibility studies. The MassDEP has continued to refine and update the plan, which is comprehensive in scope. However, despite best efforts to date, private development of the necessary processing infrastructure has been relatively slow. The implications, challenges and opportunities presented by the changing organics landscape in Massachusetts will be discussed in a companion article in an upcoming edition of BioCycle.

Organics In Context

The approach taken by Massachusetts regulators to encourage building of new organics processing capacity is based on the key assumption that by clarifying and defining the permitting pathway, private facilities will be built to accommodate the high volumes of source separated organics expected to be subject to the ban. This assumption is based on past successes MassDEP has had utilizing bans to divert waste streams from landfills and incineration. Starting in 1991 with lead batteries, multiple bans have followed including: leaves, tires and white goods (1992); yard trimmings, aluminum containers, metal or glass (1993); single polymer plastic, recyclable paper (1995); cathode ray tubes (2000); asphalt pavement, brick and concrete, metal, wood (2006); and most recently, clean gypsum wallboard. All of these bans and the experience gained in implementing them have led MassDEP to conclude that an organics ban is the most effective way to ensure compliance with the goals set by the state.

The MassDEP estimates that approximately 1,000,000 tons/year of food and other organic waste are currently generated in Massachusetts. This estimate is derived from a decade-old report written for MassDEP by a New Hampshire based consultant (Draper and Lennon, 2002), which utilized generalized Standard Industry Code (SIC) mapping for its primary conclusions. Despite its age, the report forms the basis of MassDEP’s waste characterization assumptions — including that approximately 100,000 tons/year are currently being source separated and diverted away from landfill and/or combustion. These conclusions have been integrated into the Massachusetts Draft 2010-2020 Solid Waste Master Plan, which, despite its draft status, represents the state’s formal plan for organics diversion and development of anaerobic digestion and other organics conversion facilities.

With Massachusett’s intent of more than tripling the amount of organic waste currently being diverted, the most obvious short-term impediment is that there is not adequate processing capacity within an economically feasible hauling distance from generators to deal with the incremental material. The amended regulations have been crafted with the explicit intent to create a clear pathway for developers. This essentially replaces a current structure that does not address many of the unique characteristics of an organics processing facility, especially anaerobic digestion. The MassDEP believes that the previous lack of clarity has hindered project development due to regulatory uncertainty making an already challenging development climate even more so.

The current roster of organics processors include 23 facilities with a cumulative 560 tons/day of permitted capacity. Currently 60 percent (13) of the sites and 40 percent of the permitted capacity are farm-based composting operations that fall under the authority of the Massachusetts Department of Agriculture (DAR), not MassDEP, and as such are not subject to the new regulations. It is important to note that DAR is updating its composting regulations, which may require the farms to utilize 50 percent of the compost produced on that farm. Although this change will not impact many of the farms currently permitted to process food residuals, it will impact several farm-based facilities that, importantly, provide organics processing capacity to the greater Boston metro region. It is a stark reality that the distances necessary for haulers to travel to tip organics is a major impediment to market development and as such, to substantially increasing overall diversion rates by the state’s major population center.

The New Regulations

Until this point, the sole regulatory pathway for organics facility developers (composting and AD) was via a Determination of Need (DON) — a generalized permit characterized by MassDEP as “banging a square peg in a round hole” — which inhibited project development, especially for larger, more technically complex anaerobic digesters. The MassDEP began the formal process of regulatory reform several years ago, leading to draft amended regulations that were submitted for public hearings across the state in late 2011 into early 2012.

Three specific areas of organics processing are impacted by the amended regulations — site assignment, solid waste and wastewater treatment. Although there have been revisions in all three, the major changes recently enacted primarily deal with site assignment as the solid waste regulations will be amended next year to accommodate the waste ban itself. The MassDEP believes that the new rules will have a substantial impact on advancing organics processing capacity by addressing critical inadequacies in the permitting framework for organics management approaches other than recycling and composting — especially wet and dry anaerobic digestion but inclusive of “other” technologies such as conversion via enzymatic, thermal or chemical degradation. This latter category of technologies is new and somewhat controversial due to the combustion moratorium currently in effect.

The amended regulations create an entirely new category of facilities (a “carve out”) that are exempt from MassDEP’s traditional municipal solid waste (MSW) site assignment requirements for facilities that process MSW. The carve-out for organics processors utilizes a three-tiered permitting structure depending on volume. The three tiers are conditional exemptions; general permits; and recycling, composting and conversion (RCC) permits (Table 1). The tiers cover facilities managing progressively higher amounts of organics with increasing levels of oversight and permitting required. The revised regulations are specifically applicable to on-farm composting (regulated by DAR), off-farm (stand-alone) composting and anaerobic digestion/conversion technologies, including installations at wastewater treatment plants.

Public Hearings

The public hearings in late 2011 and early 2012, along with Solid Waste Advisory meetings, monthly Organics Subcommittee meetings and several breakout groups, generated multiple revisions to the original draft. Comments focused on several areas of the regulations that caused concerns, including: Site assignment exemptions; impacts on the community of managing source separated organics; defining limits and controls on operations; extent of public participation in the permitting process and the ability to appeal; enforcement; and how existing operations would be transitioned.

These meetings led MassDEP to establish a set of underlying assumptions to the regulations:

1. Facilities managing MSW must go through site assignment.

2. Materials (anything recyclable, including organics) that are presorted are not considered MSW (residuals remaining after separation from the waste are MSW).

3. Publicly Owned Treatment Works (POTWs) managing source separated organics in addition to sludge in an AD unit are “adequately regulated” under Bureau of Resource Protection regulations and exempt from solid waste regulations.

4. Facilities must ensure quality of both incoming presorted materials and outgoing products.

5. Standards of public health and environmental protection must be maintained.

6. Adequate public review and comment on permits must be provided.

Major revisions were made to the RCC permit after the public hearings, reflecting the industrial size and nature of the facilities that will fall under this tier. Application, permit and review details that were added included specific measures to address incoming toxics (e.g., heavy metals), site information, design and operational information (including vector and odor control plans), contingency plans to address management of materials and products and information on products and residuals. There is also a well defined and extensive public review process associated with the RCC permit, which includes public notice of the draft permit decision, a 30 day public comment period, a group of 10 mandatory adjudicatory hearings and a public hearing when requested by the municipality or when MassDEP determines there is sufficient public interest. Unlike the MSW facility site assignment, these hearings are not mandatory but may be a result of the public review and are discretionary. These measures have been put in place to assuage any concerns that public input is not heard and addressed as part of the siting process.

Removing site assignment for organics facilities represents, without a doubt, significant progress towards a streamlined process vis-à-vis the state regulatory framework. However, the amended state regulations do not remove local municipal oversight powers regarding what gets built in their jurisdiction. Town leaders continue to have sole discretion regarding all zoning decisions. Bearing in mind that stand-alone facilities (i.e. not located at existing POTWs or existing on-site locations) will most likely be considered industrial use, zoning relief will be necessary. One other potential element for developers to consider is the noisome trade statute that could potentially be enacted before or after a facility is built and would trigger the local Board of Health to require full noisome trade site assignment (not a MassDEP site assignment). Therefore, despite the fact that solid waste permitting lies solely within the jurisdiction of MassDEP, the local Board of Health retains the authority to grant or deny its own site assignment.

Beyond these regulatory changes, the state is also pursuing other strategies to encourage anaerobic digestion. These include: 1) Identifying state owned properties appropriate for expedited privately built and operating digesters; 2) Seed money in the form of grants, loans, tax exempt credit bonds, tax exempt financing and production incentives; and 3) Allowing POTWs to accept source separated organics. The state has set a goal to site one to three stand-alone anaerobic digesters sized to process 20,000 to 50,000 tons/year on state land by 2014. The facilities are expected to generate 1 MW to 3 MW of electricity, utilize a public/private partnership structure and a have a long-term license or lease agreement. RFP solicitations are expected to go out for prescreened state facilities in spring 2013, with contract awards in December 2013 and facilities operating by December 2014. Funding opportunities are offered by MassDEP, Massachusetts (MA) Department of Energy Resources, MA Clean Energy Center, MA Division of Capital Asset Management, and MA Department of Agricultural Resources in a variety of forms(www.mass.gov/dep/energy/funding_organics.htm). Regulations have also been changed to explicitly allow addition of source separated organics to anaerobic digesters located at a wastewater treatment facility. All of these measures have been put into place to leverage the regulations and the upcoming ban to ensure the highest probability of success.

The Ban

Ultimately, DEP believes that the most effective way to remove organics from the mixed waste stream is via an organics ban. The ban starts in 2014 with commercial and industrial operations generating over 1 ton per week of organic waste. The specific regulations that will apply are still being developed and are expected to be finalized in the spring of 2013. Now that the regulations have been finalized, the meetings conducted by the MassDEP of the Organics Subcommittee will focus on the ban itself. A framework, subject to revision, is summarized in the box above.

Massachusetts is taking bold steps to help create an infrastructure for organics diversion, a new form of renewable energy and better, more efficient utilization of existing public and private facilities. There are substantial opportunities created by these initiatives as well as significant challenges presented by market dynamics, a myriad of special interests and funding gaps, to name a few. The impact across the three main groups that play the primary role in implementation — the generators, haulers and processors — all have their own unique perspective which will be detailed in Part II of this series.

Zoë Neale has spent the bulk of her career as an equity mutual fund manager and advocate for socially responsible investment. She currently works as an independent business consultant and is a founder and director of Save That Stuff Organics, an organics solutions affiliate of Save That Stuff Inc. Zoë is also the Treasurer of MassRecycle and chairs the Organics Committee for that organization.

Reference

Draper D. and M. Lennon. (2002). Identification, characterization, and mapping of food waste and food waste generators in Massachusetts. Boston, MA. Massachusetts Department of Environmental Protection.

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