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Legal aid: which laws and regulations help or hinder C&D recyclers?

It is no secret that the C&D materials stream is now on a lot of people's radar screens. It is one of the largest waste streams in the United States. The Construction Materials Recycling Association (CMRA) estimates it to be at least 325 million tons of material per year, a number that is expected to be backed up by the U.S. EPA's C&D waste characterization study due to come out later this year.

Among those who are now more interested in C&D are governmental agencies and the green building movement. These two (sometimes together, sometimes separately) have been to some extent pushing for recycling and reuse of C&D material. But sometimes there has been more lip service instead of support for recycling, detractors say, especially on the product demand end.


Examples of this disconnect abound. One of the most prominent and well known governmental regulations that virtually mandates C&D recycling is the Massachusetts Department of Environmental Protections (DEP) requirement that all concrete, asphalt, wood, metals and old corrugated containers (OCC) generated in the state be banned from disposal in landfills. This disposal ban was a long time in development, and to its credit, the DEP included stakeholders such as C&D recyclers, construction and demolition contractors, local government officials and others in that process. The department learned that there were no dependable and consistent outlets for wallboard and asphalt shingles, so it did not include them in the ban.

As the regulation start date of July 1 of this year loomed, several companies put together recycling facilities to handle the material according to the ban's guidelines. But most processors of mixed C&D find that a healthy percentage of fines is created. Depending on the operation, as much as 40 percent of what a plant handles can be this smaller material.

For a long time the main market in New England for those C&D fines was either closure materials for old landfills or as alternative daily cover (ADC). It was successful until some operations did not apply the material properly. There have been multiple nuisance gas issues reported to the DEP regarding sites using the material, likely due to a combination of sulfate content, improper gypsum removal activities and potentially improper landfill management activities. So earlier this year the DEP put out a draft H2S (hydrogen sulfide) policy that will limit the use of C&D fines, or at least put expensive financial assurance mechanisms in place on facilities that used the product that made the use of the fines economically unfeasible.

But not having this market for the fines made most C&D recycling operations economically unfeasible, right before the start of the disposal ban. Yet the material in the C&D waste stream blamed for causing the H2S--gypsum wallboard--was recognized by the DEP as not having enough homes to put it in the disposal ban. Something would have to give--either the market for fines had to be fixed so the recyclers could operate, or the ban would not come to pass.

Currently the DEP is studying a CMRA-backed proposal to find ways to continue to use the material. In the CMRA's opinion, the DEP must realize that without a solution, the ban cannot be lived up to. But this is an example where on one hand a government agency virtually mandates recycling, and then does not support the market.


Indeed, it seems some governments see legislative mandates as the best way to meet the goal of increasing C&D recycling. Examples of that include the city of Chicago, where 25 percent of all material from a jobsite must be recycled, a figure that increases to 50 percent next year; or California, where state law requires all municipalities to draw up a C&D recycling ordinance. Some cities, such as Fresno, Calif., have banned disposal of C&D in landfills until it goes through a recycling plant. Voluntary programs, such as the one employed by the city of Plano, Texas, try to get the contractors to recycle wood, concrete, gypsum and shingles.

But it takes real leadership to figure out ways to use the products made from C&D debris, and to purchase those products. For example, a state or municipality that requires that a material not be disposed of, such as crushed concrete, could help support end markets by buying back the end product, such as for roadbase. Very few do. The CMRA is working on ways to get these governments to buy what they mandate to be recycled.

It is not a new idea. In California there are 11 product categories where state agencies must purchase recycled products instead of virgin products if fitness and quality are equal, whenever recycled products are available at the same or a lesser total cost than virgin product. Those products are paper products, printing and writing paper, mulch, compost and co-compost, glass products, lubricating oils, plastic products, paint, tires, tire-derived products and metal products. (More information about the program is available online at the CIWMB's Web site

Another government initiative to support recycling is a variation on the idea of relaxing sales tax for the purchase of processing equipment to recycle. Indeed, Sen. Jim Jeffords of Vermont has introduced a bill for that at the federal level. The recycling community has supported this well-intentioned idea. Again, that same community also would like to see more support for the entity buying the recycled products, especially for those materials needing more homes.

There can be resistance to legislative and regulatory help for C&D recycling products. Entrenched interests don't want to give away their livelihood, whether that is recycled aggregate against natural aggregate or the diversion of material from landfills. These groups often have strong lobbying capabilities. What the C&D recyclers seem to have going for them is the environmental argument that favors recycling and the fact that it often makes economic sense to recycle. The CMRA has established an advocacy arm that promotes the C&D recyclers' viewpoint to legislators and regulators and is finding a receptive audience.

There will almost certainly be more regulations and legislation introduced to promote C&D recycling. It remains to be seen what effect they will really have on the industry.

RELATED ARTICLE: Railing against the STB.

One of the more closely watched regulatory battles that currently affects C&D recyclers in the northeast United States is jurisdictional questions of the Surface Transportation Board (STB). This federal agency is responsible for the railroad industry in the United States. Companies that are considered railroads are able to receive an exemption under the board's mandate that allows them to ignore virtually all federal, state and local environmental, permitting and zoning laws. The exception is made is to ensure that such governmental entities don't put unfair burdens on moving the nation's commerce.

But in the view of many in the waste and recycling industries, some companies have exploited this exemption by claiming to be railroads when they own at best a few hundred feet of a railroad spur. They then set up waste transfer facilities, mostly moving C&D, and claim to be under the STB exemption.

According to news reports, local legislators and state agencies, some operate these non-permitted sites in a sloppy manner, well below the standards that permitted waste transfer and recycling sites have to meet to comply with the regulations. This can also give the exempted sites an economic advantage if they don't have to follow all the rules. All this can enrage the local populace and legislators.

A coalition of solid waste trade associations, waste and recycling companies and the CMRA Issues & Education Fund has risen up to fight the spread of such non-permitted facilities. Although these sites are currently located mostly in New Jersey and New York, there have been applications to the STB for similar operations in other pasts of the country.

Federal legislators have noticed the problem. In a House hearing last May, federal regulators on the Railroad Subcommittee had hard questions for W. Douglas Buttrey, chairman of the STB. After that hearing, the STB became more willing to look at the situation surrounding the waste sites, something it had steadfastly avoided in the past. In addition, there have been several lawsuits filed over the sites, so a judicial answer may have to settle this question. Reportedly, economics may lessen the number of these facilities. So many are now located in New Jersey that they have driven the tipping fee prices down to 60 percent or less of what they were two years ago.

The author is associate publisher of Construction & Demolition Recycling and executive director of the Construction Materials Recycling Association (CMRA). He can be contacted at
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Author:Turley, William
Publication:Construction & Demolition Recycling
Date:Sep 1, 2006
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Next Article:Up to the challenge: C&D recycling is a major component of the U.S. EPA's Waste Wise Building Challenge Program.

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