Mandates Without the Pain

Cities in California are trying contractor-friendly methods to promote C&D recycling.

With jurisdictions in the U.S. and Canada adopting minimum waste diversion requirements, public agencies are constantly looking for programs to increase recycling rates. Cities in California have been working toward the current 50 percent diversion goal since the state adopted California Assembly Bill 939 (AB 939) in 1989, and lately many have been turning to construction and demolition (C&D) debris.

Most cities have not taken advantage of this opportunity to improve recycling. For example, a 2001 list from the County of Los Angeles indicated that only 25 of the county’s 88 cities had any form of a city-sponsored C&D program in place. After working with cities to develop C&D debris diversion programs and reviewing several ordinances already in place, the consulting firm of Hilton, Farnkopf & Hobson, LLC, Newport Beach, Calif., has summarized options for cities to consider when putting together their own plans.

C&D diversion programs can range from providing a how-to-brochure and list of processing facilities, to strong enforcement of a minimum diversion level by ordinance. In some cases, C&D generators, typically contractors, can actually save money and may appreciate the public agency’s help. C&D debris is frequently hauled by self-haulers, who are often exempt under traditional solid waste ordinances and do not typically have contractual arrangements with public agencies. Focusing on a C&D diversion program will help public agencies to educate, and to increase diversion by, the generators and haulers who may otherwise be overlooked.

Starting Out

Once a community has decided to increase its jurisdiction’s waste diversion through a C&D debris program, there are several questions to answer:

1. What projects will the ordinance cover?

2. What will the contractors need to do?

3. What will happen if they do not comply?

Why doesn’t one jurisdiction simply adopt an ordinance directly from another jurisdiction? Why are there so many options to consider? Each jurisdiction has its own unique needs and infrastructure. No two programs or ordinances are identical. In order to develop the right ordinance for a jurisdiction, ordinance authors will need to determine which of many available options will work in the jurisdiction and which may not.

The answers to the following questions will help determine which of the following program elements fit a particular jurisdiction:

• How much does the jurisdiction hope to increase its diver-
sion through C&D recycling?

• How aggressive does the jurisdiction wish to be in dealing
with contractors?

• What are the processing facilities and disposal options
available in the area and how do the costs compare?

Ordinance authors should be aware that the processing facilities, contractors and haulers in the area can provide a wealth of information and are worth consulting before adopting an ordinance that will affect them.

Defining the Focus

A jurisdiction may choose to apply C&D diversion requirements to all construction, demolition and remodeling projects in its jurisdiction. With unlimited staff time and restrictions that work with all sizes of projects, this could work.

However, a jurisdiction may be able to divert the majority of the recoverable C&D debris by focusing staff efforts on a smaller number of projects. The jurisdiction should determine which types of C&D debris generators account for most of the weight generated and which have reasonable means of diverting the debris generated.

If contractors with little C&D debris to dispose of must be monitored for enforcement of requirements that are too onerous to meet, or the enforcement agency’s staff is too overwhelmed to assure that requirements are being met, then the jurisdiction may be left with irate constituents and an ineffective ordinance.

When determining whom the requirements would apply to, the jurisdiction needs to determine:

• Where is the bulk of the C&D debris being generated and
disposed?

• How much staff time is available to work with contractors?

• What resources are available to the contractors?

As a result of their research, jurisdictions have applied C&D
ordinances to one or more of the following categories:

• City-sponsored projects

• Building/demolition applicants

• Contractors seeking to demolish structures (as demolition
projects tend to generate the most debris)

• Commercial developments (as this would capture most
large projects, while leaving out small home renovations)

• Residential projects over a certain number of units (the City
of Sacramento includes five or more).

Contractors providing services on city-sponsored projects may be the easiest for jurisdiction staff to monitor. Without even implementing an ordinance or developing a broader program, cities can include diversion requirements in their construction contracts.

And, as the jurisdiction is the paying customer, requirements should be easier to enforce. For example, the City of Oakland, Calif., requires contractors to submit a Job Site Recycling and Waste Reduction Plan along with bids to the city.

The selected contractor must also submit required reporting prior to receiving final payment. In areas where the contractor cannot be assured of saving money by recycling, the low bid is not likely to include a recycling plan, unless specific diversion requirements are written into the bid document, so that all contractors can compete on the same playing field.

Project thresholds are another way to limit oversight. Many jurisdictions' ordinances include many types of construction and demolition tasks, but then limit which of these projects are covered by setting minimum thresholds. Cities have implemented ordinances that only apply to projects:

• with a minimum cost from $50,000 to
$150,000;

• with a minimum size ranging from
1,000 to 10,000 square feet.

For example, the City of Palo Alto’s Solid Waste Management Plan submittal and 25 percent diversion requirement applies to projects greater than 10,000 square feet.

Jurisdictions that elect to include smaller projects must check to see that local processors accept mixed debris at a reasonable cost. Many processing facilities will only accept source-separated debris (for example, wood, concrete and bricks) brought in separate containers. If a work site is small, there may not be space or need for more than one container, making it impractical to source separate materials.

If it is very expensive to dispose of debris at a processing site, or there is a long distance for contractors to travel to a facility that accepts mixed debris, the jurisdiction may consider implementing minimal requirements for small projects. Remember that these projects may generate little enough debris that limited staff time would be more efficiently focused elsewhere.

Boosting the Infrastructure

A jurisdiction is not eternally bound by the current C&D diversion facility infrastructure. Jurisdictions can take an active roll in the expansion of facilities. The City of San José included in its ordinance an incentive for existing facilities to increase diversion rates.

The City of San José offers contractors the option of bringing all material to city-certified facilities that have demonstrated that they can meet diversion minimums, transferring the burden of meeting ordinance requirements to the facilities. These facilities therefore become more attractive to contractors than other facilities. The other facilities are therefore encouraged to improve diversion operations and become certified as well, or risk losing customers. The city lists 22 certified facilities on its Web site, 14 of which are in the City of San José.

The Coachella Valley in Riverside County has limited mixed-waste processing capacity. The City of La Quinta, Calif., is developing an ordinance in coordination with its consideration of a 50 percent minimum C&D debris diversion level. This 50 percent diversion requirement is aggressive for the current infrastructure. However, some facilities in the area have the space to sort mixed debris and could arrange to accept mixed loads if the demand supported the added expense.

Contractor Obligations

One of the most common requirements that cities include in C&D diversion plans is to require contractors to divert a minimum percentage of all materials generated on-site. Ordinance authors need to consider the capacity and services offered by local C&D diversion facilities, as well as the size of covered projects when setting the minimum. Smaller projects and lack of local mixed-waste processing facilities can limit the amount of material that will reasonably be diverted. The opposite can also be true. In the City of Santa Fe Springs, Calif., which has access to a variety of processing facilities, the minimum was set at 80 percent.

A jurisdiction may choose to tailor this minimum goal to meet the needs of individual projects or circumstances unique to its jurisdiction. As an example, the City of Atherton, Calif., requires 50 percent diversion of materials from construction and roofing projects, but only 15 percent for materials other than concrete and asphalt from demolition projects.

Generally the burden of meeting the required diversion rate is placed entirely upon the contractor. The City of San José’s unique approach, mentioned above, requires either the contractor or the facility to meet minimum diversion goals.

Another common requirement is to have contractors submit waste management plans. In order to receive a building permit, some cities request that a contractor submit a plan that includes projections on the types and amount of materials to be generated, the facilities to which the materials will be taken and the anticipated diversion rates. An agency will also require final documentation of actual diversion and disposal to be submitted within 30 or 60 days of project completion.

Cities have also required maximum feasible on-site diversion. As every project is different and may have different potential diversion levels, this option could promote the greatest diversion of C&D debris. However, this subjectivity may also require agency staff to spend more time evaluating the waste management plan for each project to ensure that all reasonable steps actually will be taken towards maximizing diversion.

The City of Cotati, Calif., requires that demolition project contractors advertise when and where materials will be available for salvage.

Many jurisdictions require contractors to make security deposits when applying for a building permit. The way in which the amount of the deposit is determined would depend upon: a) how concerned the agency is with compliance; b) whether the agency will count on forfeited deposits to fund recycling programs; or c) whether the agency only intends to offer an incentive for contractors to submit a final waste management report upon completion.

Some cities do not consider a deposit necessary. For example, the City of Santa Fe Springs chose not to require one. The City of Cotati requires a $200 recycling deposit for demolition projects. But the City of Atherton requires more—a deposit of $50 per ton projected to be generated, with a $5,000 minimum. Other jurisdictions have based the deposit on a percentage of the projected project costs, such as three percent. Fixed deposit amounts have ranged from $200 to $10,000. The return of these deposits is based upon meeting required diversion goals or submitting all required reports.

Enforcement Methods

Examples of enforcement tools used by jurisdictions for non-compliance with C&D ordinances include the following:

• Many jurisdictions require that a waste management plan be approved prior
to issuing a building permit. One city warns it may bar permittees from
receiving future building permits if a final waste management plan is not
submitted properly at the projects' end.

• Contracts for city-sponsored projects may permit the withholding of final
payment until a final diversion report and documentation is submitted.

• Cities may treat the failure to follow the C&D diversion ordinance as a
misdemeanor.

• A common approach is simply to retain a contractor’s deposit if requirements are not met.

Passing a Law

Once jurisdiction staff is convinced of the need for a C&D diversion program, co-workers and City Council may need convinced. Staff may need to overcome misperceptions that the program will add significant expense and be met with substantial resistance by contractors and residents.

Staff should confirm with facilities that residents would be expected to use whether they accept jurisdiction debris and at what price.

In Southern California, tipping fees for source-separated C&D debris are usually less expensive than landfill tipping fees, despite the relatively low disposal fees. For example, Los Angeles area disposal tipping fees can be as low as $18. With tipping fees for asphalt and concrete ranging from free to $10 per ton, depending on the condition of the material, and tipping fees for dirt and brick ranging from $1.50 to $15 per ton, C&D processing facilities are still economical alternatives.

In California, the key to convincing local elected officials of the importance of a C&D diversion program is to demonstrate the risk of non-diversion. Jurisdictions risk a $10,000 per day fine for failing to meet requirments, either by reaching 50 percent overall diversion by weight or by implementing sufficient programs toward the goal to show a "good faith" effort. If a jurisdiction has not met the goal, diverting additional C&D debris or the implementation of a program to increase this diversion could save the city substantial fines.

The author is a Senior Consultant with Hilton, Farnkopf & Hobson, LLC, working from the company’s Newport Beach, Calif., office.