What’s in Your Trash?

California’s New Composting Law

By Aaron A. Hayes, Esq.

This article first appeared in our Fall 2022 Communicator Magazine.

Green compost bins will soon join California’s familiar blue recycle bins along our curbs as the latest trend in waste management. While already familiar in some areas, Senate Bill ("S.B.") 1383 extends mandatory organic waste composting statewide as part of California’s comprehensive Short-Lived Climate Pollutants strategy.

S.B. 1383’s stated goal is to substantially reduce organic waste in landfills by requiring cities and towns to collect compostable waste separately from other refuse, then divert it to approved organic processing facilities. Although S.B. 1383 became effective January 1, 2022, local jurisdictions have until January 2024 to become fully compliant.

SIGNIFICANCE OF SB 1383 FOR COMMUNITY ASSOCIATIONS

Planned Developments

Planned developments consisting of single-family homes will likely see little operational change at the association level under SB 1383, as waste collection is typically conducted separately for each lot therein per a direct relationship between the lot owner and the local jurisdiction/waste collection company. However, to the extent association common areas generate waste or have waste collection facilities, the association must provide appropriate receptacles for the collection of organic waste in order to comply with SB 1383 and local implementing ordinances.

Multifamily Buildings (5 or More Units)

Multifamily buildings will see significant operational change in waste management under SB 1383. At the outset, SB 1383 expressly defines multifamily buildings with more than four units to be "commercial businesses" subject to its commercial requirements.¹

Compost Collection

Specifically, as of January 1, 2022, new multifamily buildings must be constructed to provide "readily accessible areas that serve the entire building and are identified for the depositing, storage and collection of [recycling and organic waste…]." (Cal. Green Buildings Standards Code, § 4.410.2.) Existing buildings are also subject to mandatory organic waste collection, and CalRecycle regulations require that the "property owner or the manager" of the building must "supply and allow access to an adequate number, size, and location of [compost] containers with the correct labels or container colors" for residents (14 CCR § 18982). Neither the regulations nor the bill itself provide guidance on what constitutes an "adequate number, size, and location" of compost containers within a building, which likely will vary depending on each building’s unique size and circumstances.

Post-Collection Handling of Compost

Once building-wide organic waste has been collected, SB 1383 provides that the property owner (here, an association in the case of a community association) either (1) "self-haul" transport organic waste to an appropriate processing facility or (2) ensure organic waste is collected by the appropriate local jurisdiction’s waste management collection program. (14 CCR 18988.1, et seq.) However, the option to self-haul may only be allowed where the local jurisdiction has adopted an ordinance providing the manner in which self-hauling is approved and monitored. Moreover, electing this option requires that the self-hauler keep accurate records regarding the volume of organic waste collected, its handling and disposal. As such, the administrative burden of compliance likely renders self-hauling unattractive for most multifamily community associations except in unique circumstances. (14 CCR 18988.1.)

Mandatory Resident Training

Apart from collecting organic waste, the owner of a multifamily building – here, an association itself for purposes of the bill in the context of a community association – must also provide annual training for residents on the building’s waste management practices and what constitutes organic waste that should be deposited in compost receptacles. (14 CCR 18984.10.) In the case of a new resident, this information must be provided within 14 days of move-in. (Id.)

The regulations provide little guidance as to what constitutes proper training for residents, but at a minimum, associations should provide information in written form to each resident annually regarding waste collection practices. In connection with SB 1383’s rollout, many local jurisdictions are creating informational packets and handouts addressing composting generally, local governmental requirements, and local collection procedures. Providing such information to residents, coupled with the association’s adopted waste management policy (discussed here), should allow associations to demonstrate good-faith compliance with their training obligations.

ENFORCEMENT PREVENTION: NEXT STEPS FOR MULTIFAMILY COMMUNITY ASSOCIATIONS

To achieve SB 1383 compliance, local jurisdictions will be required to audit buildings to ensure residents are properly depositing organic waste (and nonorganic recyclables) in appropriate receptacles for collection. If a multifamily building fails to divert organic waste (and recycling) as required by SB 1383 and local ordinances, it will be subject to enforcement remedies by the local jurisdiction as required by SB 1383.

Specifically, CalRecycle regulations require, effective January 1, 2024, that local jurisdictions shall issue notices of violation in the event of a generator’s non-compliance that require full compliance within 60 days. (14 CCR § 18995.4.) Where a violation is not corrected, the local jurisdiction shall impose civil penalties of $50-$100 for a first violation, $100-$200 for a second, and $250-$500 for each subsequent violation.² (14 CCR § 18997.2.) Moreover, in the case of a commercial generator, the local jurisdiction may revoke licenses or operating permits for noncompliance. (14 CCE § 18997.2(b).)

Against this backdrop, associations must take steps immediately to ensure that they are providing sufficient resources for the collection of organic waste to serve the entire building. Moreover, as associations are essentially charged with ensuring resident compliance to avoid enforcement liability from local jurisdictions, associations should adopt policies and rules to both define and govern their organic waste (and recycling) management procedures. Apart from providing a basis for enforcement against residents who fail to comply, such policies and rules are essential to an association’s compliance with their duty to train residents on proper waste management and collection, as required by the applicable regulations.

Don’t wait! Compliance with SB 1383 may require physical modification of existing trash enclosures to abate smells, pests and other conditions unique to the accumulation of organic waste. Additionally, some associations may need to create or expand on-site waste facilities to accommodate the separation and collection of organic compostable waste. If required, these steps may require member votes (i.e., approval of capital improvements, etc.) and entail funding considerations – all of which will require careful planning and time to implement. In short, associations should promptly begin reviewing their waste management/composting practices, implement appropriate policies to comply with S.B. 1383, and develop appropriate plans for any necessary modifications/improvements well before SB 1383 enforcement begins on January 1, 2024.

Aaron A. Hayes, Esq. is a senior attorney and founding employee at O’Toole Rogers, LLP. He represents common interest developments and their directors, officers, and managers in corporate and litigation matters, while also advising on a wide range of transactional, risk-management, and enforcement matters. Hayes has extensive experience in employment law and has handled employment matters for companies throughout California, including common interest developments.

1 The exception to these commercial requirements is SB 1383 does not require multifamily buildings to divert edible organic waste to food assistance programs as restaurants, hotels and other similar businesses are required to do.

2 Note that some local jurisdictions, such as San Francisco, already impose penalties for noncompliance with accordant local ordinances.