Real issues: lawmakers giveth and they also taketh away when it comes to providing boosts to mixed C&D recycling.

When the Construction Materials Recycling Association (CMRA) established its Issues and Education Fund in 2003, it was aware that legislators and regulatory agencies could alternatively make life easier or more difficult for operators of mixed C&D plants.

This decade, agencies and legislative bodies in a number of states have passed rules and laws directly affecting the way C&D recyclers operate.

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In many cases, the intentions behind such laws are in favor of recycling, though some of these laws can have unintended consequences. In other cases, rules and laws have been established that are decidedly unwelcome.

In one noteworthy case, an arcane federal exemption is providing an unwelcome counterforce to the establishment of a solid mixed C&D recycling sector.

SETTING GOALS. Although the federal government has largely avoided any effort to set C&D recycling rate targets, smaller jurisdictions have been far more willing to set firm goals and guidelines.

California adopted legislation (AB 939) in 1989 that requires counties to recycle 50 percent of their waste streams. With C&D material making up such a hefty percentage of those streams (especially in counties with healthy construction markets), it did not take long for county and city officials to begin devising C&D recycling initiatives.

By early this decade, cities such as Oakland, San Jose and Palo Alto had mandatory and optional systems in place to improve the flow of C&D material into recycling plants.

Oakland's system requires contractors to submit a job-site recycling and waste reduction plan along with their initial bids to the city. The contractor that wins the bid must also submit required reports prior to receiving the final payment.

In San Jose, contractors have the option of bringing material to one of more than 20 city-certified facilities (per the city's Web site at www.sjrecycles.org) that are expected to meet pre-determined recycling rates. Ideally, facilities that have this certification become an attractive option for contractors and haulers, because the burden of following the ordinance then falls to them.

The commonwealth of Massachusetts has chosen another route--banning certain materials from its landfills--to obtain higher C&D recycling rates and its ultimate goal of an 88 percent statewide recycling rate.

In mid-2006--after a good deal of delay and a lengthy comment period--a ban on the disposal, or transfer for disposal, of specific construction and demolition materials became the rule in Massachusetts.

Materials barred from the landfill include asphalt pavement, brick, concrete, wood, metals and old corrugated containers (OCC) from construction and demolition sites.

The state's Department of Environmental Protection (DEP) singled out those materials based on a belief that healthy recycling markets existed for all of them. "The challenge will be in adding additional C&D materials such as gypsum wallboard, asphalt shingles, carpet and ceiling tiles in the future," James McQuade, regional planner for DEP, said in late 2005.

"It is anticipated the C&D reuse and recycling market infrastructure for these materials will be enhanced as the C&D Subcommittee and other stakeholders continue to divert more C&D material from disposal, allowing Massachusetts to reach its Solid Waste Master Plan goal of 88 percent non-municipal solid waste reduction in 2010," McQuade added.

CMRA Executive Director William Turley praised the materials selection and fine tuning that occurred before the ban was put into place. "The DEP is to be applauded on two fronts here. First, for including industry in the development of the ban. So many states enact regulations like this unilaterally without industry input, before getting all the facts. Second, this will promote C&D recycling in a state that has a solid infrastructure to make sure this ban works."

The second point is an important one and has already reared its head in New England.

ERECTING BARRIERS. Much like the C&D industry, the paper recycling industry has been through its share of mandatory recycling laws affecting the private sector.

Interviewed for the June 2007 issue of Recycling Today magazine, Kevin Duncombe, president and COO of California's Western Pacific Pulp & Paper (WPPP), notes that requiring material to be diverted without researching whether end markets exist is a common government error.

Governments, says Duncombe, "tend to regulate the recovery side and not the [end] market side. So you end up with additional tonnage in the marketplace and nowhere to go with it."

The lament may sound familiar to C&D recyclers in New England right about now.

Ideally, if governments are going to require that material be collected for recycling, at the very least they should help ensure a free flow of the collected secondary commodities as well as providing encouragement for in-state markets.

For the recycling companies that have made the investment to handle the C&D materials that Massachusetts requires to be recycled, some events in the past three years have been discouraging.

Within Massachusetts, the use of processed mixed C&D as alternative daily landfill cover (ADC) has drawn intense scrutiny and, at some locations, outright bans because of odor complaints. (The culprit is widely considered to be the presence of too much gypsum wallboard, particularly at certain moisture levels.)

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In an interview with Construction & Demolition Recycling magazine for a late 2006 article ("Theory of Evolution," Nov.-Dec. 2006, ps. 18-22), Gil Lopes of New England Recycling, Taunton, Mass., predicts that recycling facilities face dying markets for fines that used to serve as ADC.

"We eventually will have to rail that material out of state to get rid of it," Lopes said at the time. "The tipping rates for [mixed C&D recycling] facilities will have to adjust themselves to allow for the costs."

If Massachusetts recyclers had been hoping to ship additional material to the adjacent state of New Hampshire, events there have also conspired against them.

In June, New Hampshire's Gov. John Lynch signed House Bill 428 into law, permanently banning the burning of wood fuel derived from the C&D material stream starting Jan. 1, 2008.

The law replaces a moratorium that had support from many state officials. Lynch had long been in favor of the ban, and a legislative committee had recommended it by a 13-1 vote.

The CMRA's Turley has said the ban could slam the door shut on an important market for recycled C&D debris in New England. "Currently, there are no wood fuel power plants, except for some that use residues from the logging industry, in New Hampshire, so there is nobody using C&D wood fuel now in the state, although a couple such facilities have been proposed," said Turley. "We might see these ideas that C&D wood is in some way unsafe spread to other states, and we don't want this untrue concept to take hold."

Keeping the avenue to burning C&D wood open is not only important to New England's C&D recycling industry, but to the country as a whole as it tries to find alternative ways to meet energy demands, said Turley. "These plants are the future--a way to wean ourselves from dependence on coal and foreign oil," he says. "Emissions from these stacks can be much cleaner than coal. We are looking for a way to get our message out there and we're hoping that the science will carry the day."

RUNAWAY TRAIN. One more threat facing mixed C&D recyclers comes courtesy of the federal government--or more accurately one small sub-agency that regulates the nation's freight rail network.

In Northeast states such as Massachusetts and New Jersey, solid waste haulers have been setting up transfer stations--often for C&D material in particular--that because of a loophole in federal law allows them to operate in defiance of state and local solid waste and recycling regulations.

The Surface Transportation Board (STB), a federal agency that regulates the nation's freight rail network and companies, claims to have an exemption that allows facilities under its auspices to operate outside of state and local permitting and zoning laws.

Recyclers and competing waste haulers are increasingly concerned that some waste companies are exploiting this exemption by conducting solid waste transfer and shipping operations while being enrolled with the STB as railroads.

In most cases, such companies do own a railroad spur, but what they set up is a waste transfer facility that ships out waste to landfills--often by truck.

Legislators, regulators and competing haulers and recyclers in some states have attempted to address the situation, but federal jurisdiction is a difficult thing to combat.

Again, the CMRA's Issues & Education Fund has become involved, joining a coalition of solid waste trade associations, waste and recycling companies bringing the problem to the attention of Congress in particular.

House hearings, including one that included contentious questions for STB Chairman W. Douglas Buttrey, may have helped alert the STB to its looming public relations and legal problem.

A late April STB "oral arguments" review in a particular case involving New England Transrail, Woburn Mass., may well set the tone for how the STB regulates the transfer stations within its own agency.

Should the STB begin conducting a little more scrutiny of the waste transfer companies portraying themselves as railroads, it could represent the elimination of one less challenge for mixed C&D recyclers attempting

to build up their industry.

BANNED IN BOSTON

On July 1, 2006, the Massachusetts Department of Environmental Protection (DEP), Boston, began enforcing its ban on the disposal of select materials in the waste and recycling stream.

Part of the ban focused in particular on materials generated at construction and demolition sites, including:

* Asphalt pavement;

* Brick;

* Concrete;

* Wood (with an exemption for municipal waste combusters); and

* Metals from work sites.

Existing regulations also cover old corrugated containers (OCC) and leaf and yard waste.

To what extent the DEP will be able to enforce the ban remains a source of speculation. In January of 2007, however, the agency did issue a news release announcing the issuance of several haulers as well as generators of OCC (including retailers) for violating the ban.

Haulers cited included regional and national firms, while generators receiving citations included national retailers, local retailers, a nonprofit group and a university.

THE SAN JOSE WAY

The City of San Jose has attempted to rein in the C&D stream for recycling (as a way for the city to meet its state-mandated diversion rate) by implementing a system that gets contractors involved but lets traditional recyclers do the work.

The city's Construction & Demolition Diversion Deposit (CDDD) program is billed as an incentive program to encourage the recovery of C&D debris."

In the program, the city of San Jose collects a deposit from contractors up front and fully refunds it if the C&D debris is processed for landfill diversion to the city's satisfaction.

According to the city's Web site, the city will "assess a deposit based on the square footage and type of project you plan to undertake. The amount of your deposit is listed on your permit receipt."

To meet recycling requirements, materials can be taken to a CDDD-certified facility for recovery and recycling. (The city lists more than 20 on its Web site.) Also, materials can be re-used or donated, with accompanying documentation necessary.

"The easiest method is to take the materials to a CDDD-certified facility," says the city's Environmental Services Department on its Web site. "These facilities have been audited by the city to verify that at least 50 percent of the material accepted is diverted from burial in landfills."

Again, documentation is critical. "Refund applicants must provide documentation to demonstrate that the C&D debris and other project materials were adequately diverted from burial in the landfill," according to the Web site.

After a project is complete, the contractor organizes applicable documents and follows instructions given on a CDDD Refund Request Form to receive the refund.

The author is editor in chief of Recycling Today and can be contacted a [e-mail].