In September 2016, Governor Jerry Brown signed into law SB 1383 to achieve a 75% reduction in the statewide disposal of organic waste from the 2014 level by 2025. Organic wastes are classified as solid wastes, and include food scraps, green waste, landscape and pruning waste, wood and lumber, paper products, manure, biosolids, digestate and sludge. Organic waste is highly recyclable and can be incorporated into products such as recycled paper or cardboard, compost, mulch and/or converted into energy.
To achieve this goal, SB 1383 requires cities to implement certain actions by January 1, 2022, or within a revised schedule approved by the California Department of Resources Recycling and Recovery, also known as CalRecycle. Requests for a revised schedule must be submitted to CalRecycle by March 1, 2022. The required actions are as follows:
- Amend City codes to incorporate the new organic waste recycling requirements;
- Provide new organics recycling services to all residential, multi-family properties and commercial businesses (the City currently provides these services to commercial businesses);
- Develop an edible food recovery program;
- Purchase organic/sustainable materials and recycled products in order to create market infrastructure for products made from recycled organic materials;
- Amend existing franchise hauler contract to comply with SB 1383; and
- Establish compliance, enforcement and reporting programs.
City staff anticipates completing these items in 2022 and 2023, and will be submitting a revised schedule to CalRecycle by March 1, 2022, as part of the Notice of Intent to Comply (SB 619) submittal.
Lastly, CalRecycle is offering the SB 1383 Local Assistance Grant Program. This non-competitive grant program will provide one-time funding to local jurisdictions to assist with the implementation of regulation requirements associated with SB 1383. There is a total of $60 million in funding available, with base award amounts set at $20,000 for eligible entities. The remaining funds will then be distributed to eligible entities based on per capita calculations using the Department of Finance’s January 2021 population statistics. The City of Brea’s estimated allocation based on the population-driven formula is $60,222. Grants will tentatively be awarded in April 2022 for the first round of funding.
Eligible activities and costs include: Capacity Planning, Collection, Edible Food Recovery, Education and Outreach (includes organic waste & edible food recovery), Enforcement and Inspection, Program Evaluation/Gap Analysis, Procurement Requirements (using recycled organic products – compost, mulch, electricity, and/or renewable gas and recycled paper and paper products), and Record Keeping.
The City’s application includes a number of proposed areas to utilize the grant funds, if awarded. Should the specific areas where the City wishes to apply funding change, the City can consult with CalRecycle to re-allocate funds from one area to another.
Applicants who certify they will adopt an SB 1383 ordinance (Attachment A), and provide documentation of adoption to CalRecycle by April 1, 2022, will be eligible to receive first round funding. Because the grant application was due by February 1, 2022, staff has already submitted the preliminary application (Attachment D).
Several of the highest priority action items from the foregoing list of required actions are being brought forward for Council's approval at this time. Foremost, the State wants jurisdictions to have an "enforceable mechanism" by which to persuade residents and businesses to comply with the regulations. CalRecycle has made it clear that jurisdictions that have not implemented this item will likely be subject to enforcement for non-compliance first over those jurisdictions that already have it in place. Secondly, staff recommends that Council approve of the Notice of Intent to Comply submittal. The related legislation behind this item (SB 619) was specifically developed to provide protection for jurisdictions from punitive actions by the State, which would have negative fiscal and program impacts. Further details about both of these items are provided below for City Council's education and awareness.
Proposed Ordinance for Compliance with SB 1383
SB 1383 requires the City to adopt an enforceable ordinance to mandate businesses and residents to recycle their organic waste and to comply with the requirements of the regulation. The City's current regulations regarding solid waste collection do not address SB 1383 regulations. In order to meet this State requirement, the City Code must be updated. In October 2020, CalRecycle published a model organics recyclables ordinance. The proposed Ordinance is based upon this model ordinance. The City Attorney's Office assisted Staff with drafting and conducting a legal review of the proposed Ordinance. Due to the breadth and depth of new regulations, and for ease of administration, the proposed Ordinance would add a new Chapter 8.56, “Organic Waste Disposal,” to the City Code. This new Chapter would be supplemental to Chapter 8.28, “Solid Waste Collection and Salvage of Recyclable Materials.”
The attached Ordinance (Attachment A) addresses the SB 1383 regulatory requirements the City needs to achieve compliance from those subject to the law. The proposed Ordinance includes requirements for waste generators to participate in organic waste collection programs, multi-family and business owners and property managers to support organic waste disposal reduction, commercial edible food generators to recover edible food through contracts or written agreements with food recovery organizations and services, and more.
The proposed Ordinance allows for local control and flexibility in the logistical details of how the City will establish an organics collection program, perform education and outreach, administer enforcement and penalties, administer record keeping and reporting requirements, and address edible food recovery and organic waste capacity planning. The City’s focus in establishing these programs is to serve as a resource to residents and businesses, providing assistance wherever possible, as opposed to penalizing them for non-compliance.
Notice of Intent to Comply (SB 619)
SB 1383 went into effect on January 1, 2022. Existing law authorized CalRecycle, after determining that a jurisdiction has failed to meet the requirements set forth in its source reduction and recycling element and after holding a public hearing for the purpose of hearing testimony on the jurisdiction’s deficiencies, to impose administrative civil penalties of not more than $10,000 per day. However, as local governments geared up for the implementation of organic waste regulations, attention and resources were diverted to responding to the COVID-19 pandemic. With looming regulatory enforcement and penalties, Senator Laird introduced Senate Bill 619 to provide jurisdictions an additional year of implementation time, without the threat of civil penalty fines.
SB 619 authorizes a local jurisdiction facing continuous violations of SB 1383’s regulations to submit a Notice of Intent to Comply (NOIC) to CalRecycle. If approved by CalRecycle, the jurisdiction is eligible for administrative civil penalty fine relief for the 2022 calendar year and CalRecycle’s issuance of a Corrective Action Plan (CAP) to facilitate organic recycling program implementation.
Jurisdictions facing continuing violations of SB 1383 regulations during the 2022 calendar year must do the following to receive civil penalty fine relief:
- Submit a NOIC to CalRecycle no later than March 1, 2022. The NOIC must be formatted within a written document and adopted by formal resolution by the governing body of the local jurisdiction. The NOIC shall include, at a minimum, all of the following:
- Description of the continuing violations.
- Explanation of the reasons, supported by documentation, why the local jurisdiction is unable to comply.
- Description of the impacts of the COVID-19 pandemic on compliance.
- Description of the proposed actions the local jurisdiction will take to remedy the violations with the proposed schedule of doing so.
Following the submittal of a NOIC, CalRecycle will respond in writing within 45 business days with an approval, disapproval, request for additional information, or timeline for a decision on approval or disapproval. If CalRecycle disapproves of the NOIC, it will include a justification for doing so.
If CalRecycle approves the NOIC, it will issue a CAP. Under current law, a CAP is issued with a maximum compliance deadline of no more than 24 months from the date of the original Notice of Violation, and will include a description of each action the jurisdiction shall take to remedy the violation(s) and the applicable compliance deadline(s) for each action. If deemed necessary, due to findings of inadequate infrastructure capacity, CalRecycle may extend the maximum compliance deadline up to an additional 12 months.
Civil penalty relief will be issued to jurisdictions during the 2022 calendar year if the local jurisdiction implements the proposed actions according to the schedule proposed by CalRecycle. For violations that commence during the 2022 calendar year and continue into the 2023 calendar year, administrative civil penalties may begin accruing as of January 1, 2023. However, the accrual of such penalties will be waived upon complete compliance with the terms of a CAP.
City staff has enlisted the assistance of its contractor and waste management industry expert, HF&H, to prepare the NOIC submittal package. A copy of the NOIC can be found as Attachment B to this report, with its accompanying Resolution (Attachment C).
After consultation with the City Attorney’s office, and a survey of other North Orange County cities (Yorba Linda, Placentia, Fullerton, Garden Grove), it has been deemed in the best interest of the City to submit the NOIC for a number of reasons. First, and foremost, the NOIC safe harbor process provides protection for the City from financial penalties for 2022 and provides a longer and more reasonable time horizon for the City to work with its hauler to implement an organics recycling program. It also prevents CalRecycle from targeting the City for delayed compliance. In addition, it prevents the State from dictating the terms of the City’s compliance, thereby allowing the City to formulate its own strategy of how it will comply with SB 1383 requirements. Finally, it provides a pathway to one-time funding offered by CalRecycle to help address a portion of such requirements.
Ordinance No. 1224 was introduced at the February 1, 2022 regular City Council meeting.
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