Legislative Bulletin February 15, 2023 – Action Alert

Wednesday, February 15, 2023 - 03:01pm

Oppose bill that would eliminate local authority to regulate solid waste materials recovery facilities – call before 8:00 AM tomorrow (Feb. 16)

SB1365 will be heard by Subcommittee #2 of the House Counties, Cities and Towns Committee Thursday, Feb. 16 at 8:00 AM

SB1365 (Lewis) would eliminate local authority to regulate waste residue generated from a “materials recovery facility” (MRF) by way of a new definition set out in the bill. This legislation is an attempt to achieve through the General Assembly what a private company was unable to achieve through the courts.

SB1365 overview

SB1365 sets out a new definition for “materials recovery facilities” (MRF) and exempts the “waste residue” generated by MRFs (which is the non-recoverable material generated by a MRF operation).

This “waste residue” produced by the operation of a MRF is exempted from any existing local flow control ordinances adopted under §15.2-931 by creating a new exemption for MRF “waste residue” to the types of materials exempt from local flow control ordinances under §15.2-933.

Under SB1365 localities will lose flow control authority with respect to the waste generate by the operation of a MRF which may result in a significant reduction in solid waste fees collected either by a municipal solid waste facility or a solid waste authority.

§10.1-1400 Materials Recovery Facility – Definition added (lines 118-120)

“Materials Recovery Facility means a solid waste management facility for the collection, processing, and recovery of materials such as metals or for the production of a fuel from solid waste. “Materials Recovery Facility” does not include the production of a waste-derived fuel product.”

Important to know:

Definition may differ from how MRFs are defined in existing local ordinances.

§15.2-931 Adds MRF “facility-generated waste residue” to the exemption already set out for recyclable materials (lines 243-245)

Important to know:

The “waste residue” at issue is the non-recyclable material (the waste product created by the operation of an MRF).
Given recyclable materials already have an existing exemption it would be redundant and unnecessary to exempt recyclable materials.
Exempting the remaining non-recyclable “waste residue”, AKA garbage, generated by MRFs will reduce the waste otherwise currently subject to flow control ordinances.
Subsection C enumerates localities that may enact flow control ordinances.

§15.2-933 Adds MRF waste product (garbage) to the exemption for recyclable materials to the categories of waste product exempt from flow control ordinances (lines 302-304)

Any ordinance requiring the delivery of all or any portion of the garbage, trash or refuse generated or disposed of within a locality to waste disposal facilities located within or outside the locality, or otherwise prohibiting the disposal of garbage, trash and refuse generated, purchased or utilized by an entity engaged in the business of manufacturing, mining, processing, refining or conversion except for an entity engaged in the production of energy or refuse derived fuels for sale to a person other than any entity controlling, controlled by or under the same control as the manufacturer, miner, processor, refiner or converter. Nor shall such ordinance apply to (i) recyclable materials, which are those materials that have been source-separated by any person or materials that have been separated from garbage, trash and refuse by any person for utilization in both cases as a raw material to be manufactured into a new product other than fuel or energy, and any facility-generated waste residue from a materials recovery facility, as defined in §10.1-1400, that has been issued a permit by the Department of Environmental Quality; (ii) construction debris to be disposed of in a landfill; or (iii) waste oil.

Important to know:

Eliminates the local ordinance authority in §15.2-931 as it pertains to the waste product generated by MRFs.
Eliminates local authority enumerated for specific localities in §15.2-931 (C).

Background

Today (Feb. 15) the bill was referred from the Senate by a vote of 30-7. It will be heard by Subcommittee #2 of the House Counties, Cities and Towns Committee tomorrow (Feb.16) at 8:00 AM.

Localities have the authority under Virginia Code Sections §15.2-931 and §15.2-933 to enact “flow control” ordinances which allow localities to direct the delivery of garbage, trash, and refuse to specific facilities. While these ordinances cannot apply to recyclable materials, they can apply to the waste generated by recyclable materials. This bill would eliminate local ordinance authority for the “flow control” of materials recovery facilities.

Materials Recovery Facilities or (MRFs) are facilities that separate recyclable materials such as metals or other recyclable products from solid waste. The Virginia Department of Environmental Quality (DEQ) only has operational requirements but not thresholds for materials.

Key points

Codifies a new definition of “materials recovery facilities” that conflicts with local ordinances.
Exempts the newly defined “materials recovery facilities” from existing local ordinance authority under §15.2-931 and §15.2-933.
The Supreme Court of Virginia has upheld localities’ authority to regulate materials recovery facilities.
Opens the door to allowing solid waste to be processed so long as any amount of that waste is “collected, processed, or recovered.”
Allows these facilities to engage in the “production of a fuel from solid waste” and prevents localities from regulating fuel production so long as the facilities are permitted to operate by DEQ.
Localities deserve an opportunity to decide how solid waste is directed and processed within their community.

Action requested

Please contact members of Subcommittee #2 of the House Counties, Cities and Towns Committee to oppose SB1365.

Morefield (Chair)	DelJMorefield@house.virginia.gov	(804) 698-1003
LaRock	DelDLaRock@house.virginia.gov	(804) 698-1033
Wyatt	DelSWyatt@house.virginia.gov	(804) 698-1097
Cordoza	delaccordoza@house.virginia.gov	(804) 698-1091
Wachsmann	delowachsmann@house.virginia.gov	(804) 698-1075
Mullin	DelMMullin@house.virginia.gov	(804) 698-1093
Williams Graves	DelAGraves@house.virginia.gov	(804) 698-1090
Sewell	delbsewell@house.virginia.gov	(804) 698-1051
Shin	delishin@house.virginia.gov	(804) 698-1086
Hodges	DelKHodges@house.virginia.gov	(804) 698-1098

VML Contact: Mitchell Smiley, msmiley@vml.org