State of the union: the CMRA provides an update on current C&D legislation in six states.

C&D is on the minds of legislators and regulators from one end of the United States to the other. Below are some of the actions being taken in various states and being monitored or acted upon by the Construction Materials Recycling Association (CMRA) Issues & Education Fund, which advocates the viewpoint of C&D recyclers.

Massachusetts: The state's proposed ban on unprocessed C&D going to a landfill is currently in the last stages of administrative review in the state's bureaucracy, i.e., in the budget office to determine the cost impact. It has been through every other requirement, including two public comment periods and legal review. It could be in place before the year is out.

This ban requires that C&D must go through a legitimate recycling center before it is disposed of. In anticipation of this ban, several C&D recycling centers have sprung up across the state, including two large ones by Waste Management Inc. Many of these plants only make alternative daily cover (ADC) after pulling out the metals, some aggregate and the old corrugated containers (OCC). Several other New England states are closely watching to see how this ban will work and whether they should implement similar ones, as those states are so small and so close together there is a fear a lot of C&D will flow across the state's borders.

California: In 2002, SB 1374 was passed, which required counties and municipalities to report how much C&D is generated within their jurisdictions. It also required them to craft and implement a C&D ordinance that would "encourage" recycling of C&D as part of that state's recycling goals outlined in the famous AB 939 legislation of several years ago. This required at least a 50 percent recycling rate out of counties and municipalities or they would suffer financial cuts in state aid.

Two recent bills were relevant to C&D recyclers. AB 1001 would have required CalTrans, the state Department of Transportation, to use recycled aggregates in roadbase for its products. CalTrans does use recycled materials in some parts of the state, but not all over. The bill was written by a member of the Assembly on the Natural Resources Committee, and the CMRA did not know about it until it was about to be voted on. With minimal lobbying by the CMRA the bill received a 7 to 3 approval in the committee, which was one vote short of getting out of the committee and heading for the floor. It will be reintroduced next year.

SB 1106 was designed to "clean up" the state's procurement contract codes regarding the purchase of recycled products. Twelve items are on the list of materials that the state and its counties and municipalities must include recycled as an option when buying products such as paper, oil and others. C&D was not included and has never been on that list. Because of procedural rules, they cannot add C&D material to the list of products, especially recycled aggregates used as roadbase in road projects.

A bill is expected to be introduced next year that would add C&D to the list of materials the state and municipalities must allow for recycled materials in the requests for proposals (RFPs).

New Hampshire: Currently the state has an ad hoc legislative committee looking at whether the state should continue its current one-year ban on burning recycled C&D wood as a fuel in boilers in the state. This ban has hurt legitimate users of C&D wood as a fuel and has put on hold two other projects that would have used the best available technology.

Ohio: The state Environmental Protection Agency (EPA) has begun strict enforcement of its "recognizable C&D" rules that ban the disposal of pulverized material in C&D landfills. The problem was that a few large C&D landfills in the state were accepting large amounts of heavily ground up material via rail from eastern states to the tune of 2,000 tons or more per day. Statute requires that the material be recognizable as construction and demolition debris, and there was a concern that municipal solid waste (MSW) was mixed in there.

On April 15, 2005, a bill went into effect that put a tax of 30 cents per cubic yard or 60 cents per ton on C&D going into landfills. One reason for the bill was to help fund the state EPA and Department of Natural Resources (DNR), both of which had their budgets slashed because of a cost cutting measure. The money was to be used for oversight of C&D activities. Then, in late June, a second bill was passed that increased the amount of tax another 50 cents per cubic yard or $1 per ton, whichever way the facility preferred. Because of this, many facilities will be putting in scales as a cost-effective measure.

Currently, a 13-member committee is evaluating the state of C&D in Ohio and making recommendations on what needs to be done. The committee is made up of six "public" members, largely from industry, six political members appointed by Gov. Bob Taft, and a member of the Ohio EPA. Currently there is a six-month moratorium on the granting of C&D licenses in the state, which might throw a crimp in the industry because technically all licenses come up for renewal Sept. 28. If no decisions are made by then, then all C&D facilities could be considered out of compliance through no fault of their own.

Maine: A bill that would have stopped the importation of C&D from neighboring states went nowhere in the legislature this past year.

Industry observers say the legislation probably would have been unconstitutional under the Commerce Clause.

Florida: In the last legislative session there was a movement to change the state's solid waste definition to remove C&D materials.

There has been for several years a struggle between C&D recyclers and the landfill companies over control of the material, with the waste companies claiming much of it under the franchise contracts. While the bill was not successful, the staff of the House's Transportation Committee has been charged with collecting information on C&D waste, existing solid-waste franchise agreements local governments have with haulers and the potential markets for products made from C&D in response to a bill that was defeated in the last legislative session. This bill would have defined C&D as a "recoverable material" in the Florida Statutes.

Recyclers in the state have reported that intense lobbying by the landfill industry prevented the bill from becoming law, and members were concerned about impacts on existing solid-waste franchise agreements, but that members of the legislature want to promote C&D recycling and want to find a way to make it happen more often in the Sunshine State. This project was designed to provide them the information they need to better deliberate the subject in the next legislative session.

The staff person in charge is Joyce Pugh, and she will be gathering research on C&D from the state's DEP and other sources. From the Florida DOT she will receive design and engineering reports and studies on the use of salvaged concrete and other material in road and bridge projects and pertinent case law on recycling and solid-waste franchise issues.

The project will contain information gleaned form interviews with C&D professionals; representatives of the transportation, energy and construction industries with experience in using recycled C&D products; and relevant state agency personnel. Counties and municipalities will receive a solid waste disposal survey.

RELATED ARTICLE: Riding the rails.

One of the more interesting regulatory developments that has spilled over into the legislative arena is the placing of solid waste facilities along railroad tracks.

Having the company managing the plants and calling them railroad related puts them under the jurisdiction of the federal Surface Transportation Board (STB) and exempts them from all state and local environmental and permitting requirements.

This back-door maneuver saves the operators thousands of dollars on permitting expenses and, because they are exempt from all the other rules that regular haulers and recyclers have to follow, an advantage of as much as $20 per ton handled.

These types of facilities first started to spring up in New Jersey, where local communities have become outraged enough about their lax operations to the point where the state's senators have introduced a bill in Congress to strip the STB of its power over solid waste facilities along railroad tracks. But the biggest setback to the continued expansion of these types of facilities came in mid-2005 when the STB decided to deny New England Transrail's application to place a controversial rail haul operation for C&D debris in Wilmington, Mass. However, the company will be allowed to re-file its application for such an exemption and has indicated that it will.

A group of solid waste companies, C&D recyclers and trade associations, including the CMRA, have banded together to fight that application and plans to contest any additional filings. But the large waste companies and many other entities are also studying how these applications work in hopes of putting in future facilities.

The author is associate publisher of Construction & Demolition Recycling and executive director of the Construction Materials Recycling Association. He can be reached at [e-mail].