Bernie Meyerson, 1932 – 2018

The Bay Area Recycling Community Has Lost One Of Its Long Time Heroes
By Kevin Drew, Residential Zero Waste Senior Coordinator, San Francisco Department of the Environment

Bernie Meyerson slipped away in May, following his lifelong partner Marion by 7 years, an eternity after their over 60 years together, starting out as teenagers in the neighborhoods of Brooklyn just after the end of WWII.

Bernie was “present at the creation” of many aspects of what we now take for granted in Bay Area and California resource recovery, such as: curbside recycling in Fresno in the 1970’s, opposition to incinerators in the Berkeley and San Francisco, supporting reform of SF’s 1932 Refuse Ordinance and Norcal’s (now Recology) monopoly, supporting recycled content industries as the only real solution to sustainable materials management. Bernie not only advocated for, but got into the business of, recycling: putting his time and money where his mouth and brain were, helping to create Multi Material Management & Marketing in Oakland.

Bernie was a mentor to many of us in the recycling movement. Always willing to spend some time discussing the intricacies of recycling and materials management. “It’s all about the markets” was Bernie’s common refrain and he’d go on to explain what was happening in China, Viet Nam, India or Los Angeles, where ever material was moving or not moving. For good measure, Bernie could be counted on to add a dose of thoughtful exposition on the connection back to local, state and national policies and politics. He was a powerful intellect, able to hold forth persuasively and accurately on our industry, and many other topics.

Bernie could also be counted on to “be there” for the environment and fellow recyclers, even decades down the road on important matters and little issues. Most recently he helped protect San Francisco’s waterfront from over-development by helping to passing Prop B. He provided long hours of thoughtful consideration as a member of San Francisco’s Peak Oil Task Force. He saved my butt with wise counsel on handling the DOC Enforcement actions being levied at the HANC Recycling Center shortly after I started work there in 1988, and early in the AB2020 implementation.

I really never stopped listening to Bernie wax on, wax on about . . . whatever. I miss that repartee already.

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Rinsing Plastics at Events

By Arthur R. Boone, Center For Recycling Research and Total Recycling Associates
In its 12 years of operation, the First Friday Street Fair on lower Telegraph in Oakland had never had a recycling program; running from 5 to  p.m. on, guess what, the first Fridays of each month, it had escaped attention from the regulators. The sponsoring organization’s exec had used the Sierra Club tree team to plant trees in the area, so Boone asked her if she needed a little help getting started. He got referred to John Eric Henry, FF event manager, and on the first Friday of May, Boone and four other NCRA-based volunteers – Brooms, Hanscom, Krueger, and McKaughan, did their magic on assorted trash bags and some three-sort bagged materials out of Clearstreams to see what’s happening.

Most pleasing was how little EPS (Styrofoam) there was in the mix with lots of molded pulp food plates and the paucity of glass, paper and OCC. Most astounding to Boone was the high percentage of plastic cups, cutlery, and film, most of it too covered with goop of various origins to be immediately usable.

Anybody know of ways to rinse discarded plastics to make them clean enough to go in a drop-off location as in Berkeley and El Cerrito?; this stuff didn’t go to China then and doesn’t now. Resin sorters seem to have the resin of origin solved but not the goop. Any leads?  ARBoone

Boone/Stein v. Alameda County Waste Management Authority

What Happened and Why
By John D. Moore, NCRA Vice President and Legal Counsel, and Alameda County Source Reduction and Recycling Board Environmental Organization Member

Editors note: The opinions expressed in this article are the author’s own and do not reflect the view of NCRA or the Recycling Board.

In 2011, Waste Management (WM) obtained a permit from the City of San Leandro for expanded composting and anaerobic digestion at its Davis Street Transfer Station (DSTS). For California Environmental Quality Act (CEQA) compliance in 2011, San Leandro issued a negative declaration. As part of the 2011 permitting process WM obtained an amendment to the County Integrated Waste Management Plan (CoIWMP) that describes its 2011 plans. In 2017, WM decided it wanted to perform mixed waste composting at DSTS instead of what was approved in 2011. WM needed another amendment to the CoIWMP that described its 2017 plans and needed the Alameda County Waste Management Authority (ACWMA and StopWaste) to approve that amendment. In conjunction with this proposed CoIWMP amendment, the ACWMA was required to consider CEQA again and decide whether or not to require environmental review resulting from the project changes since 2011 and whether these changes posed significant potential adverse environmental impact. Stopwaste found that there had been no changes to the project since 2011 so that no further CEQA review was required. Arthur Boone and Dr. Toni Stein objected to the CEQA determination before the ACWMA, hired private counsel at their own expense and filed suit under CEQA for the ACWMA’s refusal to perform further environmental review.

First, the Court tentatively ruled in favor of Boone and Stein although its tentative ruling did not read like much of an endorsement of their suit. After oral argument the Court changed its mind and ruled in favor of the County and WM. Then, Boone/Stein asked Judge Ronni McLaren to reconsider her ruling, which she did. In Judge McLaren’s reconsidered ruling she again tentatively ruled in favor of Boone/Stein; this time in a more committed fashion. But, after oral argument, Judge McLaren changed her mind yet again and ruled in favor of the County and WM.

Why did Judge McLaren change her mind so much? There is no way to know for sure. At the start of the first hearing Judge McLaren announced that this was the first CEQA case that she had ever decided. That said, it appeared that Judge McLaren spent a lot of time and effort reviewing and considering the law. CEQA has two competing underlying policies: one is for full public transparency and disclosure of potential significant environmental impacts of proposed projects; the other is finality of public agency decisions about the project. CEQA requires the Court to give a lot of deference to public agency fact finding concerning CEQA evaluations. Stopwaste found that there had been no change in the project since 2011. I think Judge McLaren realized that this was just untrue and that the current proposed project never had a full CEQA review, but could not see what potential environmental impacts would result from the project changes that had been raised before the ACWMA. Judge McLaren had to follow the law requiring deference to Stopwaste’s determination of no project changes. The Court’s review was also limited to objections actually made at the agency hearing which focused more on air emissions than zero waste issues. .

Boone and Stein could appeal and argue that Judge McLaren applied the wrong legal standard in her decision. Courts of Appeal likewise give much deference to a trial court’s factual finding, i.e. that the administrative record before the ACWMA did not show potential significant environmental impacts from the changes in the project. Statistically, I think that the odds are very high that Boone/Stein would lose in a court of appeal.

Any other ways to challenge the WM project? WM has a 2011 permit from the City of San Leandro. The DSTS is also bound by a master plan including the site, which was approved by the City of San Leandro in 1998. If the current project violates either of these approvals, a possible challenge exists but a very quick statute of limitations is running on such a challenge.

What sort of further environmental review should have occurred? Recognizing that the project did change from 2011 and that mixed waste composting had not yet been tried in the US, potential environmental impacts of poor quality of output compost and the possible negative impact on source separation are things I think should have been studied. After the ACWMA hearing there was media coverage of the dissatisfaction of several European countries with mixed waste composting because of claimed poor quality of the output. A press release in connection with these reports coined the phrase “Compost-like output” or CLOs when discussing compost made from mixed waste.

Would that have made any difference, if known by the ACWMA? To me that seems unlikely. The ACWMA is a joint powers agency made up of all of the cities within the county plus two sanitary districts that provide for solid waste and recyclables collection. As a political body, its decisions are sometimes made for political reasons and it is possible under CEQA for a public agency to approve a project no matter how bad the disclosed environmental impacts would be. That said, one member of the ACWMA, the City of Oakland, was heavily invested in the approval of the mixed waste composting facility at DSTS because it is part of its franchise agreement with WM. Do I think that a majority of the ACWMA members would have voted to deny approval of a project so important to the largest city within the County? I think that is unlikely. The realistic best outcome would have been to impose some quality requirements in the compost output. WM told the ACWMA that its compost would meet certification requirements of one of the NGOs that certify compost. But this promise is not stated in any of the permits.

In hindsight, NCRA should have appeared at the ACWMA CoIWMP amendment hearing and raised concerns about source separation and compost quality, if only to ask the ACWMA to impose permit conditions relating to these concerns. I feel like in hindsight I should have pushed more in that direction. These concerns might ultimately have convinced Judge McLaren to insist upon more environmental review of the mixed waste processing component. But in the end I think the ACWMA would have approved the project anyway.

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Fodder For Thought: Recovering Food and Feeding Animals

By Food Waste Reduction Committee Members, Susan Miller Davis, Infinite Table and Susan Blachman, Blachman Consulting
According to the US EPA food recovery hierarchy, after prevention and feeding humans comes feeding animals. Below are some places in Northern California that accept food for animals.

 The Oakland Zoo, home to more than 700 animals and dedicated to conservation, is a unique local resource for food recovery in Alameda County.  The Zoo has the potential to use a large quantity and variety of foods, including meat, bones, excess bread and bakery goods, and imperfect produce, which may not be suitable for human consumption.

According to a 2012 article, the zoo spends over $300,000 annually on feed.  A single tiger eats 10 bones and 15 pounds of meat daily, and an 11,000-pound bull elephant eats 100 pounds of “browse” or vegetation each day.  The park is about to expand significantly, opening the new “California Trail” exhibit which will feature several large species like bison and bears and scavengers like condors, which could open up new donation possibilities.  The Zoo currently works with a number of donors according to specific donation guidelines, and hosts an annual  Feast for the Beasts event, this year on July 28, inviting the public to feed the elephants breakfast using donated produce.

Tiny Farms is an agricultural technology company headquartered in San Leandro. The company is building high-efficiency modular cricket farms, and producing cricket powder for human and animal food. They are currently hatching about 1 million crickets per month in their San Leandro facility and are experimenting with substituting recovered food such as stale bread and sturdy vegetables (e.g. root vegetables such as carrots, potatoes, sweet potatoes etc. that may be softening or sprouting but are not yet rotting), for some of their animal feed as a way to reduce their business’ environmental impact.

They believe there is the potential to replace as much as half of their cricket feed with recovered food. And they’ve just recently begun supplying Oaktown Crickets with seasoned fried crickets in snack packs and as a salad topper at the Oakland Coliseum.

O2 Artisans Aggregate, O2AA, an eco-industrial park located in West Oakland, is home to a network of artisans and enterprises working collectively to develop and promote environmentally progressive projects. The systems created at O2 enable tenants and the community to utilize alternative energy and reduce and up-cycle various waste-streams.

The Perennial Farming Initiative has an aquaponic greenhouse facility which uses organic material, other than wood chips, compostable utensils and putrid material.  In the closed-loop system, that organic material is fed to fish, the fish waste is then used to fertilize plants on hydroponic rafts and the plants are harvested for consumption.  Other organic material, not easily composted (onions, citrus, bones), is fed to worms that in turn feed the fish.  O2 Feeds is a new on-site initiative upcycling food waste, including wet and dry grains, okara (a waste by-product from a local tofu manufacturer) and tortilla chips, to create a sustainable animal feed.

Livestock farming is concentrated in the eastern part of Alameda County – for more information see the Alameda Farm Bureau.  There are several large operations in nearby counties that accept excess food.

M-R Ranch is a 200-cow operation near Sacramento that takes material from the Alameda County Community Food Bank, including stale bread, spent grain, chocolate, oatmeal and old produce such as onions, potatoes, and cilantro.

Devil’s Gulch Ranch, a diversified family farm located in Nicasio, Marin County, within California’s North Coast region, raising rabbits, pigs, sheep, premium wine grapes and asparagus for retail customers and direct sales to restaurants. They accept donations of brewer’s grains, milk, bread and tortillas for their pigs.

To find other farms in and around Alameda County that will accept food waste:

  • Post material on CropMobster, an online community-based exchange system for trade and exchange within the food and agricultural space. CropMobster SF Bay is focused on providing a locally based community for hunger relievers, tackling food waste and building a “farm-to-fork” economy in the San Francisco Bay Area.
  • Talk to animal farmers at Alameda County farmers markets

Please let us know if you are aware of other animal operations that accept recovered food.

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)