Editor – Page 59 – Northern California Recycling Association

Regulating Unstaffed Collection Bins

MOORE’S MUSINGS
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

REGULATING CLOTHES COLLECTION BOXES
Another regulatory action designed to block recycling
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
Oakland has now joined an ever-growing list of cities requiring a clothing bin collection company to obtain the written consent of the property owner, not the occupant, to place the box. I would bet not one staff member or elected of any jurisdiction imposing this law has ever tried to obtain consent of a property owner. These regulators don’t understand how difficult this process is. The result of this kind of ordinance is that there will be fewer clothes collection bins and less textile recycling, all directly in conflict with Zero Waste ordinances, County Measure D, and AB 939.

In my law practice I have negotiated well more than 50 commercial leases, usually representing the tenant/business owner. For a company desiring to place a clothes collection bin on a commercial premises, this is what they would need to overcome to obtain the property owner’s written consent. Please put yourself in the shoes of the clothes bin business and consider:

1. First you have to know who the owner is. The tenant may not know (especially if there is a property manager between the landlord and the tenant) or may not want to tell the box provider, leaving a search of the County assessor’s records as the only option left;

2. Even when you know the name and address of the owner, you don’t necessarily know who the contact person and/or decision maker is in that organization. It can take a lot of phone time to find the right person when you are cold-calling a business. The assessor’s records won’t tell you who to contact. The tenant in possession of where the box is to be placed may or may not know this information and may or may not be willing to provide it. Most commercial tenants want as little to do with their landlord as possible. Once a landlord knows that a tenant wants something (signed consent), it changes the landlord/tenant dynamic, and not for the good of the tenant.

3. Even if the clothes bin company ascertains the contact person for the owner, getting a signed consent is a formidable task. Landlords do not sign consents at will or whimsy. Landlords first wonder about possible liability, whether the tenant has insurance, whether this tenant is following the lease, and a host of other concerns, which often result in consent conditions being negotiated with the tenant, who has no vested interest in the outcome.

4. Even if the bin company finds a contact person willing to have the consent signed, many organizations have decision-making hierarchies that must be followed. Publicly traded REITs (real estate investment trust) own lots of commercial realty. As a publicly traded entity it has internal governance and regulatory rules it must follow before executing a consent.

Let me give one example: On my way to work each morning I pass a Chevron station on Grand Avenue in Oakland that has a box owned by US Again. Let’s say I need to get the owner consent to place that bin. In trying to get the property owner address, I can fairly assume three things right away: 1) the occupant is a franchisee of Chevron; 2) the occupant likely has no relationship with the property owner- leases are typically negotiated directly by the franchisor; and 3) the person on duty operating the Chevron during the day is unlikely to be the franchisee. So, I have to find out the contact information for the franchise holder and ask them to ask their franchisor for the property owner contact information. Why would the franchisee want to help? There is no real benefit to the franchisee in asking for something from the franchisor. Even if I got the franchisor contact information, why would the franchisor want to give me the contact information for the property owner? They wouldn’t. They have no stake in placing a collection box.

It used to be that one could find out the name of the property owner online via the Alameda County Tax Assessor. No longer. You must go to the office in person to do so. I spent 30 or so minutes trying to find ownership information through a private service, giving out my contact information in the process so I could get spammed later, but was unsuccessful and gave up. I could pay a service to find the information or I could go in person to the Tax Collector office to search for ownership but in either case I would not be much closer to satisfying the regulator.

Even if I were to get the owner’s name and billing address for the tax collection (what a private service is likely to find), I would have a long struggle from there to find the business office for the owner and talk my way to a person who could tell me who needs to sign a consent for the placement of the bin. Now the hardest part yet is to convince that person to give a signed consent.

Needless to say, this process of collecting a property owner signature requires a huge time commitment and amount of diligence for a bin company just to place one box. The result will be the placement of fewer boxes. That result means less textiles are recycled and more textiles are landfilled, an outcome that conflicts with established state policy.

I have no quarrel with wanting these collection boxes and commercial premises to be kept clean and clear of blight. I also have no quarrel with regulation of financial responsibility of both the bin company and the tenant in possession. Regulation of these aspects of clothes collection does not require onerous and recycling-diminishing laws that require a paper signature from a property owner as a condition of placement of the bin. Requiring a signed consent from the occupant of the property and permit conditions about blight and insurance should be satisfactory protection for the city.

All the owner-signature requirement does is create a huge barrier to entry of the market, reduces recycling, and grants economic protectionism to the advocates of this law, Goodwill and Salvation Army. This should be off limits to regulators.

Marine Plastics Washed Ashore; An Opportunity?

By John Hanscom, John T. Hanscom Consulting
On a recent visit to Roatan, Honduras, I was staying at a seaside resort. One evening I took a walk along the shore and began to gather plastic along the way. A lot had accumulated so I asked the hotel for large plastic bags to help with my efforts. I collected two bagfuls of plastic that first evening and three more over the following two days.

The main types of plastic that had washed up were beverage bottles, nets, marine foam from buoys and other flotation equipment and, interestingly, a considerable number of sandals and flip-flops. Bottles were a particular problem because some were so brittle that they would shatter with the slightest pressure. I had to put many carefully into the bag with both hands to keep them from crumbling into small, unrecoverable pieces.

The potability of tap water from island wells is variable, so upon check-in guests are given three bottles of water, labeled with the name of the resort as a promotional item. Three more are waiting in the guest room. Every day, housekeeping provides three new bottles. Each of the 80 occupied rooms receives 24 bottles in one week. That’s potentially 100,000 bottles a year!

I brought this problem to the attention of the resort general manager. I made the contrast between his manicured, man-made white sand beach lagoon that is cleaned daily by his staff and the plastic-littered shoreline on the other side of the protective seawall. I suggested that he perhaps dedicate one of his lagoon clean-up staff to walk along the shoreline and gather up plastic twice a week. Furthermore, I encouraged him to challenge his neighboring resorts along the coast to do the same.

The plastic that I cleaned up was mainly in front of the resort where I was staying. But the plastic litter continued on all the way up and down the coast. Where the plastic contamination stopped was at a resort up the coast that does clean its shoreline and, instead of providing water bottles each day, they provide reusable drinking containers to be refilled at water stations around their property.

I mentioned to the general manager the perceived environmental liability that comes from contributing to the contamination of the very shoreline that tourists travel from around the world to enjoy. I acknowledged that the majority of the plastic was not from his resort, and possibly much of it was not even from the island itself.

Collection of these caches of shoreline plastic seems like an opportunity to directly impact marine debris in an effective manner. It would also allow this and other resorts to be part of the solution to reducing marine plastics by demonstrating that they are preserving the very resource/attraction that tourists come to see.

WHOIS: John T. Hanscom is an environmental planner with over 20 years of managing and implementing waste reduction, recycling and organics programs. His experience as an MRF operations manager, public sector recycling program manager and independent consultant includes all levels of outreach and education, discard characterizations, C&D facility assessments and compliance with mandatory recycling ordinances. He is also trained to provide EnergyStar Benchmarking for commercial buildings and evaluate energy conservation measures. He is bilingual in English and Spanish.

NCRA Response To Fortune Magazine

Dear Editor:

The Northern California Recycling Association (NCRA) appreciates that Fortune’s September 3 article

“The American recycling business is a mess: Can Big Waste fix it?” highlighted the challenges posed to the overall recycling industry by the cyclical global downturn in commodity prices. The article also correctly diagnosed the problems with the prevalent single-stream curbside recycling method. We would like to respond to your statement that “the business of recycling is due for a paradigm shift” by proffering ideas that advocate for just that:

Recycling is Not Free: The value of recyclables does not cover the entire cost to collect recyclables at the curb and separate them at a processing facility. This is especially true now that global markets for recyclable commodities are depressed. However, just because curbside recycling isn’t free, doesn’t mean it’s not worth doing. NCRA firmly believes that the benefits of recycling far outweigh the costs, and would encourage customers and communities to keep recycling even when it costs more.

Drop It Off, Take it Back: An alternative to paying hauling companies more to collect and separate recyclables is to develop systems that encourage consumers to separate their own recyclables and transport them to local recycling centers or back to the retail stores where they bought the original products.

More Deposits, More Returns: NCRA supports “bottle bills” and similar legislation that provide consumers with a financial incentive to recycle. Deposit programs can help fund curbside recycling programs and recycling centers and can be applied to many more materials than just bottles and cans.

Beyond Recycling, Zero Waste: Recycling is just one part of the solution. Ultimately we need to strive for Zero Waste. This means designing and managing products and processes to systematically avoid and eliminate the volume and toxicity of waste and materials, conserve and recover all resources, and not burn or bury them.

Re-design, Re-manufacture: As mentioned in your article, one method to improve recyclables commodities markets is to require manufactures to utilize recycled materials in their products. Additionally, Extended Producer Responsibility (EPR), which requires manufacturers to take responsibility for recycling their products after use, has to potential to incentivize product redesign resulting in more easily recycled goods.

Organics Landfill Ban: Another strategy is to ban certain materials from disposal, either at the landfill or the curb, and then allow the market to provide alternatives to disposal. Ultimately, all organic materials (food scraps, yard trimmings, paper, wood, etc.) should be banned from disposal in landfills, in order to prevent leaking methane gas into the atmosphere and to return valuable nutrients to the soil in the form of compost and mulch.

NCRA encourages Fortune to publish follow-up articles on recycling and Zero Waste. As you are aware, many Fortune 500 companies have adopted Zero Waste goals and several have made significant progress towards that goal. When researching future articles on recycling, we encourage Fortune not to rely so heavily on “Big Waste” as a source, and to interview other recyclers, Zero Waste companies, and environmental advocates. I would be happy to serve as a contact for future articles and can also provide references to other experts on this topic.

Sincerely,

Laura McKaughan
President, Northern California Recycling Association (NCRA)
(510) 982-1841
president@ncrarecycles.org

Our Mission: “Engage with stakeholders to promote, expand, and implement Zero Waste programs and technologies.”

Boone: Sorry Mr. Tierney

By Arthur R. Boone, Center for Recycling Research, Berkeley, 10/8/15

Dear Editors:

In the years prior to 1970, the United States spent billions of dollars developing a waste removal system that was comprehensive, relatively inexpensive, and much admired. Recycling existed in scrap industry work, mostly with metals, papers, and some glass, and paid for itself.

In 1970, the first Earth Day brought to the general public’s attention the fact that much of what was treated as wastes were in fact recyclable materials. In the general scheme of things, clean air and clean water issues were more important but a hardy band of do-gooders developed with little government assistance a national network of donation centers (4,000 by 1980) where ordinary folks with small quantities of recyclable cans, bottles and newspapers (also cardboard boxes) could aggregate their materials and feed them into the existing recycling network.

In 1976 the aluminum beverage can hit the market and touted the notable high cash value of its materials and another network, this of cash-for-cans developed. Money, not do-gooding, was in play.

In the same era various operators of do-good operations realized that their market penetration was weak and that the convenience of household pick-ups would be necessary to get the less-committed to participate in the recovery of those cans, bottles, and newspapers. From these people, (mostly in college towns: Berkeley, Boulder, Ann Arbor, Madison, Palo Alto, etc.) curbside collection programs began, but by 1985, only about 20 were operating.

While the federal government acted on Clean Water and Clean Air legislation in 1970, it was 1976 before the Resource Conservation and Recovery Act was adopted and that law, despite its noble intentions, quickly got bogged down in fifteen year battles on the regulations for landfill operations and defining hazardous wastes (which would require designated materials to be segregated from garbage and more expensive management programs).

So, starting in 1984 in New Jersey, an uncoordinated campaign of the states began writing so-called “rate and date” laws, calling on the existing local communities and the existing waste industries to reduce the materials flowing to landfills by a certain amount (the rate) by a certain date (the date). Over the next ten years about 25 states enacted such laws.

The system first thought to deliver these reductions was to be incinerators, now coupled with electrical generation and called waste-to-energy plants. Here in California 38 facilities got to the planning stages but only three were built. The high cost of construction, questionable air impacts, the destruction of materials, etc. led the public to reject these plans in many communities.

Like the early days of the AIDS epidemic where there was only one drug to fight the disease, curbside programs emerged in the late 1980s and early 1990s as the go-to option for local governments to “reduce wastes.” In the ten years between 1984 to 1994, the number of programs sponsored by local governments around the country went from 20 to 2,000.

But it was easy to diss these attempts. Residential wastes were usually 30% of the total (most stuff comes from businesses and industry), participation rates were commonly below 50%, and the targeted materials were at best 30% of weekly discards (none of these early programs looked at yard and food debris, plastics, etc.), so the volume of materials quickly became 30% of 50% of 30% or what to some was a laughable 5% of what had normally been collected as wastes. The cities sponsoring these programs typically did not set up the social infrastructure to support these costly collection programs and public support was weak and poorly reinforced.

Now, twenty years later, these curbside collection program have limped along, battered by their critics as expensive boodoggles for the feel-gooders. But in a number of communities the original curbside collection program was just the beginning of a much more sophisticated program that now looks like three carts, one of cans, bottles and papers, one for all materials that will rot (yard, food and soiled paper, often called “organics”), and the balance going in a trash cart. Two bin collection trucks allow three carts to be served by two routes (cutting collection costs), and in many households over 75% of the weight of the weekly discards go out for recycling and composting. Sorting in the residence is minimal and up to 85-90% of the residents use the system. Here in northern California the compost is desired in ag applications to reduce water use and replace (somewhat) ever-more-costly fertilizers.

Sorry Mr. Tierney doesn’t seem to know about these successful programs.