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Burn Them, Burn Them All

Burn Them, Burn Them All [1]

By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.

CA Department Of Public Health Enjoined From Enforcing Restriction On Medical Waste Crossing State Lines. Does new ruling impact Al Co drug take back ordinance?

The Commerce Clause of the US Constitution (Art. I, Sec. 8) has an odd relationship to the field of solid waste. In 1978 the US Supreme Court issued its first decision since 1905 that related to garbage and found that solid waste was an “article of commerce” covered by the Commerce Clause [2] .

The Commerce Clause reserves to Congress the right to regulate interstate commerce; the purpose being to preserve a “Union” and guard against state “protectionist” laws. The 1979 case involved a state (New Jersey) passing a law forbidding the importation of solid waste into that state; a law passed because of dwindling landfill space there, a situation then existing in many East Coast states. The Supreme Court struck down the New Jersey law finding that “solid waste” is an “article of commerce” that New Jersey improperly regulated. The Court did not say exactly what about the nature of solid waste makes it an “article of commerce”. [3]

By labeling “solid waste” an article of commerce, the Court later struck down laws where local government commanded that solid waste be disposed of only at a facility directed by the local government. [4] The Court later modified its holding to allow local government to direct solid waste to facilities owned and operated by the local government. [5]

The Commerce Clause was applied to Alameda County’s pharmaceutical take back ordinance, and held constitutional by the Ninth Circuit Court of Appeals. [6] An intrastate limitation on the import of solid waste was held constitutional by the Solano County Superior Court. [7] A state case found that the Commerce Clause did not preclude an exclusive solid waste franchise arrangement in Pleasant Hill, CA. [8]

Last week the Ninth Circuit Court of Appeals struck down a portion of the state of California’s laws, as applied by Cal DPH, regulating the disposal of medical waste, on Commerce Clause grounds. Again, the Court did not examine why medical waste is an “article of commerce” and both it and the parties assumed that it was.

Under California law, medical waste collected within the state must be incinerated, and, if transported out of state, must be “consigned to a permitted medical waste facility in the receiving state. [9]

The plaintiff in the case operated a permitted medical waste transfer station in Fresno, where it received medical waste collected by an affiliated company. Because there was not a permitted medical waste incinerator in California, the plaintiff transported the medical waste first to an incinerator in Maryland. Then, to reduce disposal expenses, the plaintiff began transporting the medical waste to facilities in Kentucky and Indiana for “autoclave” and “thermal deactivation” treatment permitted in those states. Both of these processes involve heating the medical waste; it does not appear that anyone argued that these processes are de facto incineration under state law.

Cal DPH then threatened the plaintiff with fines, taking the position that medical waste shipped out of state still must be incinerated. The only statutory support for this position is when the “receiving state” does not have a permitted facility, in which case the medical waste must be incinerated. (Where that could be is an unresolved question.) But the plaintiff’s medical waste was taken to permitted facilities in Kentucky and Indiana.

Plaintiff filed suit in US District Court and obtained a preliminary injunction against the state, forbidding imposition of penalties or other regulatory action by Cal DPH. The Ninth Circuit affirmed the preliminary injunction stating

“Were it otherwise, California could purport to regulate the use or disposal of any item—product or refuse—everywhere in the country if it had its origin in California. The district court did not abuse its discretion when it determined that Daniels was likely to succeed on the merits and enjoined the Department officials from “enforcing the MWMA against Daniels’s out-of-state waste disposal.”

The Ninth Circuit treated this as a clear case of violating the Commerce Clause, as it considered Alameda County’s pharma ordinance to not impair interstate commerce. The Ninth Circuit did not comment on the difference between the statute requiring out of state treatment of medical waste at a permitted facility and Cal DPH’s interpretation of this statute. From experience I can relate that there often are facts in a case on appeal that the parties deem pertinent, where the Court does not share this view.

Hopefully the technology for safe disposal of medical waste will provide a solution besides incineration, possibly by the field of fungi-based  mycoremediation. Please continue looking to this column to report on new applications of the Commerce Clause to solid waste and recyclable material.

And if you have read all the way to the end, please send me an email at jmoore@recyclelaw so I can tell if these legal articles are worth publishing in the NCRA News.

[1] Game of Thrones quoting the last words of Aegon Targaryen, King of Westeros

[2] Philadelphia v. New Jersey (1978) 437 US 617, 622-623

[3] Indeed, if the California Supreme Court was right in saying that “solid waste” was something valueless that an owner paid to dispose, how could something valueless, like solid waste, be an “article of commerce”. See Waste Management of the Desert v. Palm Springs Recycling Center (1994) 7 Cal.4th 478

[4].C & A Carbone v. Town of Clarkstown (1994),511 U.S. 383

[5] United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344 (2007)

[6] Pharm. Research & Mfrs. of Am. v. County of Alameda (9 Cir. 2014) 768 F.3d 1037

[7] NCRA v. County of Solano case no. FCS03687 Judgment entered May 30, 2009

[8] Waste Mgmt. of Alameda Cty. Inc. v. Biagini Waste Reduction Sys., Inc. (1988) 63 Cal. App. 4th 1488

[9] Health and Safety Code Section 118000(c)

 

2018 Recycling Update – Speaker Video Presentations

We are pleased to offer you the video presentations for the 2018 Recycling Update conference; more will be added weekly, so please check back and spread widely!

Allie Lalor , Greg Dudish , Alina Bekkerman , Dennis Uyat, “Lessons Learned from Zero Waste Youth Brazil”

Terry McDonald , Executive Director, St. Vincent de Paul of Lane County, Inc.

Nicole Tai , CEO, GreenLynx

David Allaway, Senior Policy Analyst, Oregon Department of Environmental Quality

Jeff Denby , Co-Founder of The Renewal Workshop,“Enabling a Circular Economy for Apparel”

Jerame Rentaria , Zanker Materials Processing, “DM Reduction System at Zanker Facility”

Hilary Gans , Manager, SBWMA

Michael Lok, Asian Health Services

Kevin Kumataka, SF Green Business Program

Sharon Daraphonhdeth, UC Berkeley

Jennifer Acton & Erin Cooke, San Francisco International Airport

Kelly McBee, Californians Against Waste

Mikhail Davis, Interface

Will Bakx, Sonoma Compost Company

Patrick Mathews, Salinas Valley Recycles

Ken DaRosa, Chief Deputy Director, CalRecycle

Ruth Abbe, President, Zero Waste USA

David Allaway, Senior Policy Analyst, Oregon Department of Environmental Quality

Kerry Parker, Recycling Specialist, City of Alameda and Samantha Sommer, Waste Prevention Program Manager, Clean Water
Action

Sara Fuentes, Sustainability Program Manager, Commercial Industrial Waste Applications, Inc. (CIWA, Inc.)

Zoe Heller, Assistant Director of Policy Development, CalRecycle

Kate O’Neill, Associate Professor, Department of Environmental Science, Policy and Management, UC Berkeley

Monica Wilson, Policy & Research Coordinator, GAIA

Jack Macy, Commercial Zero Waste Senior Coordinator, San Francisco Dept. of Environment

John Moore, Legal Counsel, NCRA

Tim Dewey-Mattia, Public Education Manager, Napa Recycling & Waste Services

 

Annual Members Meeting! Thursday April 19th at StopWaste Office

Please join us for our annual meeting where we will brainstorm our focus for 2018.  Meeting will be held at the StopWaste office at 1537 Webster Street, Oakland 94612. Email us at ncrarecycles at gmail.com to RSVP, or with any questions you may have.

Tentative Agenda is as follows:

6:00pm Food and Group Sharing

6:30pm Annual Membership Address

7:00pm Group Activity: Priority-setting for committees

7:30pm Groups come back together for report out

7:45pm Screening of STRAWS with brief Q&A after

8:30pm Meeting adjourns & off to green drinks!

New Horizons In Food Rescue Around California

By Food Waste Reduction Committee Members, Susan Miller Davis, Infinite Table and Susan Blachman, Blachman Consulting
In 2016, Governor Brown signed SB 1383 which, among other things, requires 20 percent of edible food that is currently disposed in landfills and incinerators to be recovered for human consumption by 2025. CalRecycle is holding workshops on May 7 and 8 to share draft regulatory language with which local jurisdictions will have to comply, to discuss the implementation process and solicit feedback. Although the regulations will not take effect until 2022, they will be adopted in 2019 to allow regulated entities approximately three years to plan and implement necessary budgetary, contractual, and other programmatic changes.

Local jurisdictions are beginning to mobilize resources – here are a few examples of local efforts underway:

Los Angeles: The City of Los Angeles has incorporated food recovery into its new franchise agreement. Under the agreement, the haulers are required to partner with local non-profit organizations to set up Food Rescue and Materials Reuse Programs. In exchange for recovery services and estimates of tonnage recovered, each hauler is obligated to donate to their subcontracted reuse organizations at least $1,000 per 100 customers in their service zones.  The exact amount given to each organization and the tonnages recovered or services provided in exchange is negotiated between each hauler and nonprofit individually. The program began January 2018.

Alameda County: ALL IN Alameda County is an innovation incubator within county government, a multi-stakeholder collaborative, working together to end poverty. One goal of All In is to establish a professionalized, paid food recovery sector, including job training. Towards that end, All In will be rolling out a 3 month food rescue pilot using two refrigerated vehicles purchased by the county.  Drivers will be recruited and hired from Peralta Service Corporation (PSC), the Unity Council’s social enterprise, and trained by the County Environmental Health Department on safe food handling. The program will recover food (fresh produce) from local farmers’ markets and deliver it to two recipient organizations: the Unity Council and Satellite Affordable Housing Associates. The plan is to continue the program once the three months is up, and including evaluating how the project can be sustained.

Silicon Valley: Silicon Valley Food Rescue (SVFR), a joint venture initiative of Santa Clara County and Joint Venture Silicon Valley, is working to supplement existing food recovery and hunger relief efforts with its planned “A La Carte” pilot, which will recover prepared food from currently untapped sources and also deliver food to insecure residents in new, more convenient ways.   According to SVFR, A La Carte, which will pilot in the summer of 2018, is “a trendy looking food truck that will rescue surplus pre-packaged food from corporate and university campuses and deliver the food directly into neighborhoods where people in need have limited access to food.”  SVFR hopes to expand the pilot to cover the entire county.  The trucks do not contain cooking and washing facilities, so are designed to distribute pre-packaged food only.  According to SVFR, “the program is designed to offer a normal, dignified experience to those struggling to feed themselves and their families, always free of cost.”

City of San Diego: In order to help achieve the City of San Diego’s goal of achieving “Zero Waste” by 2040, the City has established a Food Waste Diversion Program which has diverted approximately 8,000 tons of food waste from the City’s landfill to date. Under this program, the 34 largest food providers donate food to local food banks; donors include the San Diego Convention Center, Airport, Zoo and Safari Park, and SeaWorld, along with several schools and universities. Many other sites also donate their surplus food. Donations represent approximately 8,000 meals per week. City staff’s experience indicated that the best way to overcome barriers to source reduction and food donation is to show businesses how much and what types of food they were sending to organics diversion via composting.

And…Food for Free provides out-of-state inspiration
Food for Free is a food rescue and redistribution non-profit operating in the Boston area since 1981.  Recently, in response to growing demand from local businesses seeking to donate prepared foods to comply with the 2014 statewide commercial food material disposal ban (similar to SB 1383), Food for Free introduced a prepared meals program.

The Food for Free kitchen processes about 900 lbs of donated, bulk frozen food per week, mostly from local university campus kitchens.  The team has developed a process for breaking down the frozen food into individual meals, similar to tv dinners, which are packaged, sealed and labeled, and then distributed to a number of recipient hunger relief agencies.  The meals have the advantage of being convenient for families and other food insecure residents – those living in SROs, hotels or couch surfing; the elderly; students – who have limited kitchen access or other barriers to cooking, as they can be easily heated in a microwave.

Program manager Fiona Crimmins describes the challenges of working with frozen product – the team has developed methods of breaking down the food that involves chisels, and can only work with food that separates in a manageable and appetizing way – but also the benefits in terms of extending the timeline for distributing the food.  Similar programs on the Tufts and Harvard campuses, fueled by student volunteers, are processing surplus campus cafeteria food into individual, refrigerated meals for easy distribution.

Zero Food Waste Forum – Coming Fall 2018
To learn more about model food recovery programs and prepare for compliance with Senate Bill 1383, consider attending the NCRA 2018 Zero Food Waste Forum this fall in the Bay Area.

If you are interested in serving on the steering committee or becoming a sponsor, contact Ruth Abbe at Ruth.Abbe@gmail.com.

2018 Recycling Update – Speaker PDF Presentations

Thanks to our outstanding speakers at the Recycling Update Conference!

Video presentations are being edited and will be featured on our YouTube Channel when they are ready in mid-April, so please check back!

Ruth Abbe – Save the Albatross Zoe Heller – CalRecycle
David Allaway – Part 1 & 2 – Oregon Department of Environment Kevin Kumataka – San Francisco Green Business Program
Will Bakx – Sonoma Compost Michael Lok – Asian Health Services
Erin Cooke & Jennifer Acton – San Francisco Intl Airport Jack Macy – San Francisco Department of Environment
Sharon Daraphonhdeth – UC Berkeley Patrick Mathews – Salinas Valley Recycles
Ken DaRosa – CalRecycle Kelly McBee – CAW
Mikhail Davis – Interface Terry McDonald – St. Vincent de Paul
Jeff Denby – Renewal Workshop John Moore – Recycle Law
Tim Dewey-Mattia – Napa Recycling Kate O’Neill – UC Berkeley
Sara Fuentes – CIWA Kerry Parker & Samantha Sommer – City of Alameda and Clean Water Action
Hilary Gans – ABAG Jerame Renteria – Zanker
Adam Gendell – Sustainable Packaging Coalition Nicole Tai – GreenLynx
Iain Gulland – Zero Waste Scotland Monica Wilson – GAIA
Allie Lalor, Greg Dudish, Dennis Uyat, Alina Bekkerman – Zero Waste Youth International