California Department of Resources Recycling and Recovery (CalRecycle) 

LEA Advisory #58--Revised April 18, 2003

Methodology for Determining Compliance with the "Three-Part Test" of Transfer/Processing Facilities and Operations Regulations

A review of the three-part test regulations was conducted in 2010.

To All Local Enforcement Agencies:

This advisory provides guidance to Local Enforcement Agencies (LEA) for implementing the "three-part test" (separated for reuse, 10 percent residual, and 1 percent putrescible) of the transfer/processing facilities and operations regulations. Regulations containing the first two parts of the test (separated for reuse and 10 percent residual) became effective on March 5, 1999, establishing in law what became known as the "two-part test." Regulations containing the third part of the test (1 percent putrescible) became effective under emergency regulations on February 13, 2002 and under permanent regulations on September 30, 2002, and created what is now known as the "three-part test." Both sets of regulations can be found at California Code of Regulations, Title 14, (14 CCR) Division 7, Chapter 3, Article 6.0 et seq. (commencing at section 17400). Specifically, section 17402.5(d) sets forth the "three-part test." It provides a test to determine whether an activity is considered to be a recycling center, and therefore, not subject to the California Integrated Waste Management Board (Board) regulations. Attachment 1 to this advisory is a graphic summary of the three part test.

Background

Public Resources Code section 40200(b)(2) provides that the Board does not have jurisdiction over facilities whose primary function is to process wastes that have already been separated for reuse and are not intended for disposal. The transfer/processing facilities and operations regulations set forth a three-part test, which was established to help determine if a business qualifies for the exclusion from the Board’s jurisdiction. The three-part test provides a measurable method to allow for statewide consistency regarding regulatory exclusions. Outside of the Board’s jurisdiction, these businesses are not subject to LEA inspections or to solid waste operational standards established by the Board. Those sites that accept waste that is not "source separate" or "separated for reuse" and/or create more than a 10 percent residual of solid waste and/or contain more than 1 percent putrescible wastes are subject to the Board’s regulations. The Department of Conservation has authority to oversee the beverage container recycling operations in the state.

Since the effective date of the regulations containing the two-part test there has been much discussion regarding the methodology of the two-part test. The Enforcement Advisory Council (EAC) passed resolution number 99-09 at their November 18, 1999, meeting that recommended the Board develop an advisory providing guidance to implement the two-part test.  With the adoption of emergency regulations for putrescible wastes, the EAC suggested the Board expand the advisory to include guidance on the implementation of the third part of the test.

Three-Part Test

When an activity meets the three-part test to qualify as a recycling center, it is not subject to the Board’s regulations. If it fails any part of the three-part test, the activity is considered a solid waste operation or facility subject to the Board’s jurisdiction.

Part One of the Three-Part Test

The first part of the test is that an activity shall only receive material that has been separated for reuse prior to receipt (section 17402.5 (d)(1)).

Separated for reuse material is defined in subsection (b)(3) as follows:

"Separated for Reuse" means materials, including commingled recyclables, that have been separated or kept separate from the solid waste stream for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace, and includes materials that have been "source separated."

In other words the term "separated for reuse" would typically mean the final product sent to a recycling center after being processed by an intermediary (like a transfer/processing facility). "Separated for reuse" recyclable material could also include "source separated" recyclable material.

Source separated material is defined in subsection (b)(4) as follows:

"Source Separated" means materials, including commingled recyclables, that have been separated or kept separate from the solid waste stream, at the point of generation, for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace.

The term "source separated" means the recyclable material that is separated at the point of generation and is sent to a recycler, which is analogous with a homeowner taking his/her recyclables to a recycler. "Source separated" recyclable material does not include "separated for reuse" recyclable material.

Methods for determining whether the material is source separated or separated for reuse include:

  • Visit the site and observe operation. Look for load characteristics and separation of material. Does there appear to be a significant amount of solid waste mixed in with the loads?
  • Review the business’ contracts. Check language to see if it is restricted to separated for reuse material.
  • Obtain a copy of the pamphlets or handouts provided to customers.
  • Check the bins at the generator site. Are there separate bins for the recyclable material and the solid waste?

Examples:

a) An activity that receives separated for reuse is a concrete recycling business that receives materials from a construction site that has designated bins on site. The recycling bins on site are clearly differentiated (by labels or colors, etc.) from bins for solid waste.  In this example, the facility receives separated for reuse material so it meets the first part of the test.

b) An activity that receives material from a hauler that picks up bins that are for everything generated on site including solid waste that is not separated for reuse. In this example, the activity receives solid waste not separated for reuse material so it does not meet the first part of the test.

Using the first part of the three-part test we can determine whether or not an activity is receiving material that is source separated or separated for reuse. If the operation is receiving mixed solid waste/material not separated for reuse, then it fails to meet the first part of the test and is within the Board’s jurisdiction, regardless of whether or not the entire operation's residual is less than 10 percent or less then 1 percent (part 2 and 3 of the three-part test). This part of the test was designed to distinguish an operation that is separating recyclables from solid waste from one that is handling already separated recyclable material only. If the activity meets the first part of the test, then proceed to the second part of the test. If it fails the first part, the activity is within the Board’s jurisdiction and the second and third parts of the test are not warranted.

Part Two of the Three-Part Test

The second part of the test is the determination that the residual amount of solid waste in the material is less than 10 percent of the amount of separated for reuse material received by weight (section 17402.5(d)(2)). The “10 percent residual” part of the test is intended to provide a minimal objective standard to supplement the more subjective first part of the test (and statute). The allowance for 10 percent residual is recognition of the fact that it is not uncommon for materials that are legitimately separated for reuse to still include minimal levels of contamination.

Residual is defined in subsection 17402.5(b)(1) as follows:

(1) “Residual” means the solid waste destined for disposal, further transfer/processing as defined in section 17402(a)(30) or (31), or transformation which remains after processing has taken place and is calculated in percent as the weight divided by the total incoming weight of materials.

Calculating and Estimating the 10 Percent Residual

The percentage of residual waste is calculated by:

           Total weight of residual per one month          
-------------------------------------------------------------------------  X 100 = Percent residual
Total weight of incoming material per the same month

For example: A facility receives 150 tons of separated for reuse material in the month of May 2000 and 20 tons of the 150 is residual. Therefore the facility has a percent residual of 13 percent.

     20 tons of residual for the month of May    
---------------------------------------------------------------- X 100 = »13 percent residual
150 tons material received in the month of May

1) The residual amount is calculated by measuring the outgoing tonnage after separated for reuse materials have been removed. This is determined on a monthly basis based on the number of operating days.

2) The recycling center may include an adjustment in the calculation to include the weight of water in the residual, when the use of water is essential to the processing of the material, provided that such an adjustment is also made in the weight of materials received for processing. Some wood recyclers use this adjustment.

3) The following materials shall not be included as part of the outgoing residual when calculating the percent of residual, if the recycling activities are separated from the material handling activities noted below by a defined physical barrier or where the activities are otherwise separated in a manner that the LEA determines will keep the materials from being commingled:

a) materials received at an on-site buy-back center

b) materials received at an on-site drop-off center

c) cannery waste

d) construction and demolition materials

e) nonhazardous contaminated soil

f) grease-trap pumpings

g) nonhazardous asbestos

h) nonhazardous ash

i) compost and compost feedstock

j) sewage sludge

k) tires

The foregoing provision does not exclude the handling of materials listed in subdivisions (d)(6)(C) through (K) from being subject to other regulations of the Board, it only sets forth whether or not they are to be included in the calculation of the percentage of residual for the purposes of this section. The handling of nonhazardous contaminated soil is subject to section 17360 et seq. The handling of nonhazardous asbestos is subject to section 17897 et seq. The handling of nonhazardous ash is subject to section 17367 et seq. The handling of compost and compost feedstock is subject to section 17850 et seq. The handling of tires is subject to section 18420 et seq. The handling of other materials listed in this subdivision is subject to section 17400 et seq. unless otherwise specified (section 17402.5(d)(6)).

Which means, unless the activity for the handling of the specified material qualifies as a recycling center, the handling of these types of materials will be subject to the Board’s regulations either as a transfer/processing operation or facility, or under a separate regulatory package, but not under the definition of a recycling center. Materials from the list received at a regulated site (e.g., transfer/processing operation or facility) shall count toward the regulatory tier tonnage/volume limits for that site. Materials from the list that are received at a site that qualifies as a recycling center shall not be used to calculate the percent residual to meet the three-part test.

The LEA should consider the following when evaluating an alternative to a physical barrier:

  • The barrier should be adequate to completely separate both operations.
  • Physical proximity of the operations. Does the distance between the operations constitute a clear separation?
  • Whether processing areas, equipment, and personnel are shared by the facilities. If equipment and personnel are shared, it could imply a single operation.
  • Whether environmental controls are shared.
  • Whether record-keeping is shared. If shared, indicates likelihood of a single operation.
  • Protection of public health, safety, and the environment. Does the alternative barrier prevent a threat to public health and the environment?
  • The intent of the operator.

An alternative to a physical barrier would need to be more than just a line on the floor or cones, etc. Alternatives may include a separate building, an operation located at opposite ends of a parcel, etc.

Attachment 2 contains a comparison chart that can be used as a visual tool to estimate the percentage composition of contaminants in a material. The chart contains diagrams representing a range of percentage compositions. By comparing the diagrams to a representative sample of the host material, the user can visually determine which diagram best matches the sample. The chart is based on percent by volume, so to use it to determine percent by weight, the user will need some idea of the relative densities of the contaminants and the host material.

If the activity meets the second part of the test, then proceed to the third part of the test. If it fails the second part, the activity is within the Board’s jurisdiction and the third part of the test is not warranted.

Part Three of the Three-Part Test

The third part of the test is the determination that the amount of putrescible wastes in the separated for reuse material is less than 1 percent of the amount of separated for reuse material received by weight and the putrescible wastes in the separated for reuse material shall not cause a nuisance, as determined by the EA (section 17402.5 (d)(3)). The “1 percent putrescible” part of the test provides additional objectivity to supplement the subjective first part of the test (and statute). The restriction of 1 percent putrescible wastes is recognition of the fact that putrescible wastes can pose a significant risk to public health, safety, and the environment and, therefore, any site receiving putrescible wastes should be regulated.  The regulation allows up to 1 percent putrescible wastes rather than taking a zero tolerance stance because it is not uncommon for materials that are legitimately separated for reuse to still include minimal levels of putrescible wastes.

The “creation of nuisance” part of the test provides an EA with additional flexibility. A business must pass all parts of the test to qualify as a Recycling Center; therefore, failure of any part makes the business subject to regulation. This part of the test may be particularly useful when the percentage of putrescible wastes cannot be accurately measured.

Examples:

  1. A business receiving 3 percent putrescible wastes that is not causing a nuisance fails the test based on the percentage of putrescible wastes.
  2. A business receiving 0.75 percent putrescible wastes that is causing a nuisance fails the test based on the creation of nuisance.

Putrescible wastes is defined in subsection 17402(a)(21) as follows:

“Putrescible wastes” include wastes that are capable of being decomposed by microorganisms with sufficient rapidity as to cause nuisances because of odors, vectors, gases or other offensive conditions, and include materials such as, but not limited to food wastes, offal and dead animals. The EA shall determine on a case-by-case basis whether or not a site is handling putrescible wastes.

Nuisance is defined in subsection 17402(a)(12) as follows:

“Nuisance” includes anything which:

  1. is injurious to human health or is indecent or offensive to the senses and interferes with the comfortable enjoyment of life or property, and
  2. affects at the same time an entire community, neighborhood or any considerable number of persons. The extent of annoyance or damage inflicted upon an individual may be unequal.

The LEA shall determine on a case-by-case basis whether or not a site is handling putrescible wastes. Although the regulatory definition lists some examples, it is difficult to produce an inclusive list of putrescible wastes. If the site proposes to handle or is handling wastes not explicitly listed in the definition, the LEA should use its experience to determine whether the waste stream is capable of causing a nuisance or other offensive condition. The rates at which microorganisms decompose materials (and the likelihood that this will result in odor, vectors, etc.) are highly dependent on the characteristics of the material (e.g., particle size, moisture content, nitrogen content, sugar content, bulk density, fat content), and on management practices, which vary widely. For example, materials high in nitrogen, sugars, and/or fats (e.g., fruits, meats) have a higher capability to become putrid. Higher moisture content and smaller particle sizes will decrease pore spaces for oxygen, possibly leading to anaerobic conditions, which can also cause odors. An operator can control some of these variables with proper management practices at a site, but may need to work diligently with haulers and contracting agencies that oversee collection programs to avoid receiving waste that is already in a putrid or anaerobic state when delivered to the facility.

Calculating and Estimating 1 Percent Putrescible Wastes

The amount of putrescible wastes is calculated on a monthly basis based on the number of operating days, as follows:

           Total weight of putrescible wastes per one month          
---------------------------------------------------------------------------------------------  X 100 = Percent putrescible wastes
Total weight of incoming separated for reuse material in same month

For example: A facility receives 200 tons of separated for reuse material in the month of August 2000 and 10 tons of the 200 is putrescible wastes. Therefore the facility received 5 percent putrescible wastes.

     10 tons of putrescible wastes for the month of August
---------------------------------------------------------------------------------  X 100 = 5 percent putrescible wastes
200 tons of separated for reuse material received in August

The regulations do not require the operator to physically separate putrescible wastes from each load of separated reuse materials for the purpose of calculating the amount of putrescible wastes received. Rather, the operator can visually estimate the amount of putrescible wastes in each load. If the LEA has reason to believe that the operator’s estimates are not accurate, the LEA may request additional proof, such as removing, weighing, and recording the amount of putrescible wastes contained in a representative sampling of incoming loads.

Attachment 2 contains a comparison chart that can be used as a visual tool to estimate the percentage composition of contaminants in a material. The chart contains diagrams representing a range of percentage compositions. By comparing the diagrams to a representative sample of the host material, the user can visually determine which diagram best matches the sample. The chart is based on percent by volume, so to use it to determine percent by weight, the user will need some idea of the relative densities of the contaminants and the host material.

Burden of Proof

The burden of proof rests with the owner or operator to demonstrate that the three-part test is being met in the following situations:

1. If the LEA has information (i.e. via a complaint, newspaper article, visual inspection, etc.) that material being received is not separated for reuse, that the residual is 10 percent or more of the total incoming material weight per month, or the amount of putrescible wastes is 1 percent or more of the total per month.

2. If the LEA has reason to believe that a business is accepting material that is not separated for reuse due to the averaging or combining of those loads with other loads of separated for reuse material. If review of the records indicates materials from a particular account have over 10 percent residual in their loads, the business would fail the second part of the test. The business is considered to be accepting loads that are not separated for reuse if it continues to receive from this account. The business must stop accepting from that account, educate that account so that material must be separated for reuse, or get a permit if they choose to continue its acceptance.

3. If the EA has reason to believe that a business is accepting material that is not separated for reuse or source separated due to the separation of portions of the material at consecutive sites, each of which removes less than 10 percent residual, the business is considered to be accepting loads that are not separated for reuse and, therefore, would fail the second part of the test, if the residual in the load accepted and processed at the first of consecutive sites were greater than 10 percent. The business must stop accepting these loads or get a permit if they choose to continue.

4. While recycling centers are not within the Board’s jurisdiction and are therefore not subject to specific record-keeping requirements, these businesses may want to maintain adequate documentation or other evidence to show that the activity is a recycling center and not a transfer/processing operation or facility. The regulations provide a process for voluntary record-keeping which businesses may want to use to prevent concerns regarding their status and activities. A business may report their residual percentage to the LEA using form CIWMB 607 (PDF | Word ). An alternative report may be used which easily and clearly identifies the residual amounts and documents that only separated for reuse material is received. Adequate documentation will include information regarding total weight of material received, total weight of residual, total amount of material separated for reuse, and if possible the accounts with their residual amounts.

At the time that the LEA requires a recycling center to provide evidence that it is in compliance with this subdivision, the LEA shall provide the recycling center with a written description of the information that has caused the LEA to believe that the recycling center is not in compliance.

If the LEA is unable to make a determination from the records supplied by the operator of whether it meets the three-part test, then the LEA can issue a notice and order. The notice and order will cause the operation to cease until the operator:

1) obtains the appropriate tiered permit; or

2) the operator clearly demonstrates that they meet the three-part test.

Property Access

When dealing with previously unregulated sites that may no longer qualify as recycling centers, issues may arise with respect to property access for the EA to conduct an investigation. The EA may be denied access by a business claiming to be a recycler who doesn’t believe that there is authority to inspect his site because it’s not handling solid waste. In fact, the EA does have authority to inspect, if it believes that the site may be subject to the EA’s jurisdiction. Public Resources Code sections 44100 and 44101 provide broad authority for EA inspections to ensure compliance with the Board’s statutes and regulations. The Board’s regulations also expressly provide that the EA may inspect a business to verify that it is in compliance with the Board’s requirements (three-part test).

As with any solid waste site, it is always preferable to gain consent prior to inspecting the property. This will ensure that objections can not be raised later about the information obtained in an inspection and that the EA will not be accused of trespass. In addition, when dealing with recycling sites, the Board’s regulations also provide for the use of a voluntary reporting form (CIWMB 607) which can be used by sites to provide an EA with enough information to satisfy any concerns about whether the site meets the three-part test. EAs should encourage recycling businesses to use this form so that any questions that may come up from third parties can more easily be handled and explained.

As with inspections of other solid waste sites, if site access is refused (unless there is an emergency affecting the public health and safety), the EA will need to seek an inspection warrant. PRC 44101 expressly authorizes use of this procedure. What follows is a very general overview of the requirements to familiarize you with the type of information that you will need to have. However, the exact procedure on how to go about obtaining an inspection warrant will vary from jurisdiction to jurisdiction (different legal departments will handle these in different ways). You will need to be in close communication with your legal counsel to understand what they believe you will need to provide them with in order to obtain the warrant.

An inspection warrant is an order signed by a judge allowing the EA to conduct an inspection authorized by State law. It is issued upon a showing of cause, based upon an affidavit that describes the premises to be inspected and the purpose for which the inspection is made. It must also state whether consent to inspect was sought and, if not, why the failure to seek consent was justified. Cause is deemed to exist if there is reason to believe that a condition of nonconformity exists with respect to the premises. The inspection must be carried out within 14 days of issuance, between 8 A.M. and 6 P.M. in the presence of the owner or occupant, unless otherwise authorized. Failure to permit an inspection authorized by the warrant is a misdemeanor offense.

As with the requirements of 14 CCR 17402.5(d), the EA will need to have some information that shows why there is reason to believe that the site is not in compliance with the three-part test. The exact type and amount of information that will be necessary will vary from situation to situation but some general categories of information can be described.

Complaints received are typically the way many of these cases might arise. These can be used in an affidavit, but the EA should ensure that the complaint is reliable. This means that if the complaint is from a business competitor, the EA should ask a few more questions to determine the factual basis for the complaint. A complaint of this type, without some other factual corroboration, may not be enough to obtain a warrant.

On the other hand, a complaint from an independent party that has used the facility (and thus observed conditions) would be more credible. Any factual corroboration would also be helpful. For example, the smell of rotting food in surrounding property could be a good indication that there is putrescible waste on the site.

Regular sightings of trucks leaving the facility and heading to a disposal site might indicate large amounts of residuals. Other factual information could be obtained from what is visible to public view (size of piles on site, size of buildings, type of equipment in use, etc.). Information could also be obtained by investigating the sources of material sent to the site (names on the side of trucks hauling material to the facility), and the disposal destination of material leaving the site (full trucks being unloaded at the landfill).

In short, any observations that that the EA can make could yield facts that could be used in an affidavit. There is no set amount of facts that are needed, but the more facts available, the easier obtaining a warrant will be. Prior to performing any extensive investigation, you should check with your counsel to find out what he or she believes is needed for an affidavit.

Enforcement

If residuals fluctuate around the 10 percent level, exceeding it one month and dropping below it the next, the verification of 10 percent could be a significant enforcement burden on LEAs. The Board does not have authority to require records access to the incoming materials stream at recycling centers. This being the case, records regarding residual waste must be accessed at the back-end of the process. The 10 percent fluctuation will be addressed on a case-by-case determination, much like minimum standards violations or tonnage violations that are present some months and not others. If there is a pattern and practice, LEAs could issue a notice and order requiring a permit unless action is taken to keep the number consistently below 10 percent. Any recycler who doesn’t share information can be required to do so. LEAs have authority to inspect records if they believe a recycler is operating as a solid waste operation or facility. Public Resources Code sections 44100 and 44101 provide LEAs the authority to request records.

Section 17402(E) allows an LEA or the Board to inspect a business to verify that it is conducted in a manner that meets the provisions set forth in the definition and to take appropriate enforcement action, including the use of a notice and order as provided in sections 18304–18304.3.

A number of other provisions in 14 CCR section 17402.5 are relevant and may be useful in drafting an enforcement order for a facility:

  • A recycling center shall only receive material that has been separated for reuse prior to receipt (subsection (d)(1));
  • The only separation that may occur at the recycling center is the sorting of materials that have been separated for reuse prior to receipt (subsection (d)(3));
  • A business that accepts loads of material that are not separated for reuse or source separated does not qualify as a recycling center (subsection (d)(6)(A)); (emphasis added)

The LEA has the authority to require the operator to cease and desist handling municipal solid waste until the business obtains a permit. The directive should be in the form of an enforcement action which requires the operator to seek the appropriate tiered permit if he/she wishes to process accounts that cause the facility to exceed the limits of the regulations and accept loads that are contaminated with solid waste.

Case Studies

Case Study #1

The LEA inspected an activity because of complaints received. During the inspection the LEA discovered that the business collected commercial loads of material and had employees pull out recyclable material. The residual waste was baled and transported to a landfill for disposal. The LEA’s initial impression was that the facility was a materials recovery facility and required a solid waste facility permit. The operator claimed that they were a recycling facility and did not require a solid waste facility permit. 

Follow-up

The LEA worked on the issue with their county counsel and Board staff and the consensus was that the facility appeared to be a transfer station engaged in recycling. The facts being:

1) The facility received mixed solid waste as an integral part of their operations.

2) The amount of solid waste handling activities is significant.

3) Material received required additional separation at the facility.

Subsequently, the LEA sent a letter to the operator notifying the operator of their findings and of their intent to conduct follow-up inspections.

Ongoing investigation

The LEA conducted additional inspections, some at night. As a result of the inspections, a report of violation was sent to the operator. In the course of their inspections the LEA requested records. The operator was not able to provide any records to the inspectors on their initial request for them. Based on conversations with the operator and visual inspections, the LEA estimated that the facility was generating 40 percent residual. A joint inspection was conducted by the LEA and Board staff of the subject facility at which time the operator provided records showing a residual of 45–50 percent.

Conclusion

The LEA issued a notice and order to cease transfer station operations and material recovery processing. There were several meetings between the LEA, LEA county counsel, operator, and operator’s attorney before and after the order was issued to discuss and resolve the outstanding issues. The operator ceased solid waste handling practices while the LEA confirmed compliance with the order through inspections.

Case Study #2

A glass recycling facility that receives only glass that has been separated at the curb. However, because of the several transfers there is a large amount of broken glass. When it finally reaches the facility, the material is run through the conveyor belts where whole glass is pulled out and the broken glass is sent to the landfill. As a result the total amount of residual is over 10 percent. This facility meets the first part of the test but fails the second. Therefore, it is within the Board’s jurisdiction.

The Board’s view is that, although the business appears to be consistent with the first part of the test, it fails the second part of the test. Therefore, the business is subject to the Board’s regulations.

Case Study #3

A recycling facility that receives 700 tons per day of curbside green waste, including grass clippings, and 300 tons per day of unsaleable produce back-hauled from grocery stores. The operator grinds and mixes both waste streams together, then hauls the material off site to a composting facility. There is no residual from this activity. Material remains on site less than 48 hours.

The business appears to be consistent with the first part of the test—both waste streams are kept separate from the solid waste stream. The business also appears to be consistent with the second part of the test—the operator hauls 100 percent of the material to a composting facility, so none of the material is defined as “residual” (i.e, 0 percent residual). The LEA, in this case, finds that the facility accepts more than 1 percent putrescible wastes so the business fails the third part of the test. Therefore, the business is subject to the Board’s regulations.

Case Study #4

Located within the permitted boundary of a transfer/processing facility permitted to received 80 tons per day of mixed solid waste is a construction and demolition (C&D) activity. The C&D activity is separated by a defined physical barrier and receives 50 tons per day of recyclable C&D material. The operator contends that since the C&D material is separated for reuse, and a defined physical barrier separates the recycling activity from the solid waste handling activity, he is not required to include the tonnage of the C&D material in the total tons per day of waste for the transfer/processing facility. The operator obtained a registration permit for a medium volume transfer/processing facility to receive 80 tons per day of mixed solid waste. The operator recycles 75 percent (25 percent residual) of the C&D material on a monthly average at the C&D activity.

Title 14, section 14702 states that a recycling center and beverage container recycling programs, where there is a physical barrier separating these programs from the solid waste handling activities, will not be included in the tons per day calculation. This means that in order for the 50 tons of the C&D material not to count toward the daily tonnage of the transfer/processing facility the activity must be a recycling center.

The Board’s view is that, although the C&D activity appears to be consistent with the first part of the test, the residual amount of 25% causes the activity to fail the second part of the test. Therefore, the C&D activity is not a recycling center and is subject to the Board’s regulations. The defined physical barrier has no relevance in this case study because the physical barrier, as noted above, would only apply to the separation of a recycling center (section 17402.5(d)). The handling of the C&D material is subject to section 17400 et seq., unless otherwise specified in separate regulations. The C&D activity would be considered part of the transfer/processing facility (unless it could also qualify as a separate facility—see LEA Advisory #39 on multiple permit—if so, it would still need a permit since it fails the three-part test). As a result, the tonnage of the C&D activity counts toward the transfer/processing facility total tonnage: 80 tons per day + 50 tons per day = 130 tons per day, which is subject to the requirements of a large volume transfer/processing facility.

Excluded Activities

Activities that are not subject to the transfer/processing regulatory requirements include the following:

1. Auto dismantler

2. Auto shredder or metal shredder

3. Buy-back center

4. Drop-off center

5. Manufacturer

6. Regional produce distribution center

7. Rendering plant

8. Reuse salvage operation

9. Scrap metal recyclers and dealers

10. Wire chopper

11. Wood, paper, or wood product manufacturer

These activities are excluded provided they do not accept solid waste which has not been separated for reuse. For the definitions of these activities, see Section 17402.5(c).

If you have any questions regarding this LEA Advisory, please contact your Permitting & Inspection Branch representative.

Sincerely,

Original approved by:

Scott Walker, Acting Deputy Director
Permitting & Enforcement Division

Attachments
(Select each image to see a larger version. Use your "back" button to return.)

Attachment 1: Graphic Summary of the three-part test

Comparison Chart for Estimating Percentage Composition--1 to 10%
Attachment 2A: Comparison Chart for Estimating Percentage Composition—1 to 10 percent

Comparison Chart for Estimating Percentage Composition--15 to 50%
Attachment 2B: Comparison Chart for Estimating Percentage Composition—15 to 50 percent

Publication #231-02-001

The intent of the advisories is to provide guidance to Local Enforcement Agencies (LEA) in performing their duties. Guidance, for this purpose, is defined as providing explanation of the Board’s regulations and statutes.

Unless included by reference in the LEA's Enforcement Program Plan (EPP), advisories are not enforceable in the same manner as regulations because they have not been adopted through the formal rulemaking process (see Government Code sections 11340.5 and 11342.6). Advisories do not take precedence over statute or regulation.

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Martin Perez: Martin Perez (916) 323-0834