Earlier this month, the California State Water Quality Control Board (“State Water Board”) approved a General Order for Waste Discharge Requirements (“WDRs”) for composting operations, which will streamline and standardize permitting processes and regulate water quality at new and existing composting facilities.  While the General Order was approved with very little fanfare or media coverage, its implications are significant.

General Order Coverage

The General Order, which applies to State composting facilities that process at least 500 cubic yards of material per year, will impose a regulatory scheme on a large number of the organics facilities already operating in the State.  Moreover, the General Order’s facility coverage is likely to expand in the coming years, given the recent passage of California Assembly Bill 341 (“A.B. 341”) (2011), which encourages the addition and expansion of State composting facilities by establishing a State policy goal that at least 75 percent of the solid waste generated in the State be source-reduced, recycled, or composted by 2020.

Waste Disposal and Composting in California

The State of California currently disposes of an annual estimated 35 million tons of waste in landfills, of which an estimated 32 percent is compostable organic material, 29 percent is construction debris, and 17 percent is paper.  Much of the organic material could be, but is not being, composted, which is leading to the excessive and unnecessary filling of State landfills.  Composting yields environmental benefits by preserving nutrients, diverting waste from landfills, improving soil, reducing runoff, and sequestering carbon.

Prior Regulatory Scheme 

In the past, potential water quality issues arising from composting facilities were regulated by the State’s nine Regional Water Quality Control Boards through individual facility WDRs, or waivers of WDRs.  California Water Code section 13263 requires that the water boards prescribe WDRs that, among other things, implement water quality control plans and consider the beneficial uses to be protected.

Historically, the principal water quality issue at composting facilities has been the control of “leachate,” a liquid byproduct of composting.  Leachate consists of a variety of pollutants, including salts, nitrates, pesticides, and metals, which have the potential to impact ground waters and surface waters of the State.

Permit Basics

The General Order puts most composting facilities in either a Tier I or a Tier II category, with Tier II facilities being subject to heightened regulatory requirements.  Classification is predominantly based on feedstock type, total volume of materials, and hydrogeological siting.

With respect to each tier, the General Order sets forth standards for depth to groundwater, distance to surface water, allowable and prohibited feedstocks, additives, surface pads, wastewater handling, berms, and facility monitoring.  Some composting facilities will fall into neither tier, necessitating the continued use of individual WDRs.

 Over-Regulation of Composting?

A number of composting industry participants have suggested that the cost of compliance with the General Order is high compared to the relatively innocuous threats posed to water quality by composting activities.  Consequently, they argue, composting facilities may consider shutting down or raising fees—both of which would be detrimental to the State’s A.B. 341 goals.

In response to industry comments, the State Water Board revised a number of the General Order’s more onerous regulatory requirements.   For example, in an earlier draft of the General Order, detention ponds at composting facilities were required to contain all runoff from working surfaces in addition to precipitation from a 25-year, 24-hour storm event.  Industry participants argued that the requirement lacked flexibility.  In response, the General Order was revised to indicate than an “equivalent alternative” to the detention pond requirement could be approved by a regional water board.

Whether the General Order strikes the appropriate regulatory balance between encouraging composting and adequately protecting water quality is still in question.  Only time will tell whether the General Order accomplishes those dual objectives.

 Next Steps for Composting Facilities

Existing composting facilities, except those with individual WDRs or conditional waivers of WDRs, are required to seek coverage under the General Order by submitting a Notice of Intent (“NOI”), filing fee, and technical report within one year of adoption of the General Order (as indicated above, the General Order was adopted on August 4, 2015).  New composting operations that propose to begin operating after adoption of the General Order, are required to seek coverage under the General Order by submitting a complete NOI, filing fee, and technical report at least 90 days prior to commencement of operations.

After the appropriate regional water board determines that an NOI and technical report are complete and the operation can be appropriately regulated under the General Order, the regional water board will issue a Notice of Applicability (“NOA”) which will confirm the facility’s tier and a timeline for compliance with the General Order.  Existing facilities will have six years to come into full compliance with the General Order.