Diversion Study Guide, Appendix H

What Counts Toward Diversion?

Most of the guidelines about "what counts" (or doesn’t) toward diversion of solid waste are defined in statute, in Public Resources Code (PRC) Sections 41780 through 41786, with further guidance in regulations (Division 30. Waste Management; Part 2, Integrated Waste Management Plans; Chapter 6, Planning Requirements; Article 1, Waste Diversion). The criteria for counting something toward diversion in a 1990 or 1991 base year also apply when establishing a "new" base year (e.g., 1995).

The basic rule for what is considered "solid waste" is described in PRC Sec. 41781:

41781. (a) Except as provided in Sections 41781.1, and 41781.2, for the purpose of determining the base rate of solid waste from which diversion requirements shall be calculated, "solid waste" includes only the following:

1. The amount of solid waste generated within a local agency's jurisdiction, the types and quantities of which were disposed of at a permitted disposal facility as of January 1, 1990. Nothing in this section requires local agencies to perform waste characterization in addition to the waste characterization requirements established under Sections 41030, 41031, 41330, 41331, and 41332.
2. The amount of solid waste diverted from a disposal facility or transformation facility through source reduction, recycling, or composting.

(b) For the purposes of this section, "solid waste" does not include any solid waste which would not normally be disposed of at a disposal facility.

(c) For the purposes of this chapter, the amount of solid waste from which the required reductions are measured shall be the amount of solid waste existing on January 1, 1990, with future adjustments for increases or decreases in the quantity of waste caused only by changes in population or changes in the number or size of governmental, industrial, or commercial operations in the jurisdiction.

The term "normally disposed" is defined in the Board’s regulations [Title 14, California Code of Regulations (14 CCR), Section 18720 (a) (44)]. Simply stated, all wastes types/categories [as listed in 14 CCR Article 6.1, Section 18722(j)] that were diverted from a landfill or transformation facility in the base year must have been "normally disposed" in the jurisdiction’s base year (i.e., January 1, 1990, per PRC Section 41781) for that diversion to "count", unless other restrictions apply.

Several solid waste types have additional statutory restrictions or conditions for counting either their diversion, or allowances for their deduction from disposal. These are listed below, in alphabetical order, by waste or facility type:

1.  ADC (alternative daily cover). The use of ADC may be considered diversion, as described in PRC Sec. 41781.3:

41781.3. (a) The use of solid waste for beneficial reuse in the construction and operation of a solid waste landfill, including use of alternative daily cover, which reduces or eliminates the amount of solid waste being disposed pursuant to Section 40124, shall constitute diversion through recycling and shall not be considered disposal for the purposes of this division.

NOTE: If the material put to beneficial reuse in the construction and operation of a landfill is an inert solid (e.g., broken concrete used as road base), then the claimant must also show how the diversion of that material meets the conditions for counting restricted waste diversion as outlined in PRC Section 41781.2.(See item no. 8 below.)

The Board’s ADC regulations are located in Title 27, CCR, Sections 20670 - 20705.  In addition, all restrictions and criteria related to specific waste types may also apply to materials used as ADC.

2.  Biomass conversion, as defined in PRC Sec. 40106, can count toward diversion in 2000 (but only if transformation is not also counted toward a jurisdiction’s 2000 diversion rate) if certain conditions are met (PRC Sec. 41783.1).

40106. (a) "Biomass conversion" means the controlled combustion, when separated from other solid waste and used for producing electricity or heat, of the following materials:

1. Agricultural crop residues.
2. Bark, lawn, yard, and garden clippings.
3. Leaves, agricultural residue, and tree and brush pruning.
4. Wood, wood chips, and wood waste.

5. Non-recyclable pulp or non-recyclable paper materials.

(b) "Biomass conversion" does not include the controlled combustion of pulp or paper materials, or materials which contain sewage sludge, industrial sludge, medical waste, hazardous waste, or either high-level or low-level radioactive waste.

41783.1. (a) For any city, county, or regional agency source reduction and recycling element submitted to the board after January 1, 1995, the 50 percent diversion requirement specified in paragraph (2) of subdivision (a) of Section 41780 may include not more than 10 percent through biomass conversion if all of the following conditions are met:

1. The biomass conversion project exclusively processes biomass.
2. The biomass conversion project is in compliance with all applicable air quality laws, rules, and regulations.
3. The ash or other residue from the biomass conversion project is regularly tested to determine if it is hazardous waste and, if it is determined to be hazardous waste, the ash or other residue is sent to a class 1 hazardous waste disposal facility.
4. The board determines, at a public hearing, based upon substantial evidence in the record, that the city, county, or regional agency is, and will continue to be, effectively implementing all feasible source reduction, recycling, and composting measures.
5. The city, county, or regional agency does not include transformation, as authorized pursuant to Section 41783, in its source reduction and recycling element.

Also, PRC Sec. 41781.2 (g) applies:

41781.2 (g): Notwithstanding any other provision of law, for purposes of determining the base amount of solid waste from which the diversion requirements of this article shall be calculated for a city, county, or regional agency which includes biomass conversion in its SRRE pursuant to Section 41783.1, the base amount shall include those materials disposed of in the base year at biomass conversion facilities.

3.  Disaster waste. Statute allows the Board to consider disposal of waste that results from a natural disaster (PRC Sec. 41850) to be a plausible reason for a jurisdiction to not meet the diversion requirement. Board regulations used that consideration allowance as a basis for allowing a jurisdiction to deduct that waste from their reporting year disposal amount, if they provide the required documentation. Article 9.0, Sec. 18794.0(g) defines "disaster" as:

A natural catastrophe such as an earthquake, fire, flood, landslide, or volcanic eruption or, regardless of cause, any explosion, fire, or flood. In order to be considered a disaster, a local emergency or a state of emergency shall have been duly proclaimed. (Note: documentation must be provided to verify this).

Sec.18794.2(g) of the Board’s regulations specifies that documentation must be provided to demonstrate that:

1. The tonnage subtracted resulted from the disaster;
2. The jurisdiction implemented to the extent feasible, diversion programs to maximize diversion through reuse, recycling, or composting of disaster-related solid waste; and
3. The tonnage subtracted are consistent with the additional tonnage reported by the facilities where the solid waste was disposed.

Neither statute nor regulation specifies exactly what kind of documents are adequate for providing the required information. This allows flexibility to jurisdictions, in providing documents that are credible, reasonably accurate, and reasonable to rely upon.

NOTE: A natural disaster IS NOT the same thing as a "one time event."

4.  Hazardous waste, or household hazardous waste does not count toward diversion at any time (e.g., original base year, revised base year, new base year, or toward the 50percent mandate). AB939’s provisions relate to the diversion of solid waste. PRC Section 40191(b)(1) specifies that solid waste does not include hazardous waste.

5.  Marine waste. Marine waste is defined in the Board’s regulations, Art. 3.0, Section 18720 (a) (34):

"Marine wastes" means solid wastes generated from marine vessels and ocean work platforms, solid wastes washed onto ocean beaches, and litter discarded on ocean beaches."

Marine waste is not listed as a specific waste type in the regulations. Instead, Article 6.1, Section 18722 (i) (5) states that a jurisdiction shall identify in its solid waste generation study (SWGS) all marine wastes generated in the jurisdiction, and assign them to the waste categories and waste types listed in (j) of Section 18722, or demonstrate that marine wastes generated within the jurisdiction have been accounted for within the commercial sources of solid waste generation. For example, diverting seaweed would probably be classified as an "other organic", so "seaweed" as an "other organic" would have to be identified as being disposed in the jurisdiction’s base year for its diversion to be counted.

6. Regional diversion facility waste. That portion of a regional diversion facility's solid waste generated as a by-product of recycling at the facility can be deducted from the host jurisdiction’s reporting year disposal tonnage, if the criteria in PRC Sec. 41782 are met. 14CCR, Section 18794.2 (Annual Report regulations) requires a jurisdiction claiming a reduction in reporting year disposal from such waste to submit documentation with its annual report demonstrating how it meets the criteria in PRC Sec. 41782 (cited under no.7 below). There are no guidelines specifying exactly what kind of documentation is required. This allows flexibility to jurisdictions in providing documents that are credible, reasonably accurate, and reasonable to rely upon.

7. Regional medical waste treatment facility waste. Residual waste from a regional medical waste treatment facility can be deducted from the host jurisdiction’s reporting year disposal tonnage, if the criteria in PRC Sec. 41782 are met. 14CCR, Section 18794.2 (Annual Report regulations) requires a jurisdiction claiming a reduction in reporting year disposal from such waste to submit documentation with its annual report demonstrating how it meets the criteria in PRC Sec. 41782. There are no guidelines specifying exactly what kind of documentation is required. This allows flexibility to jurisdictions in providing documents that are credible, reasonably accurate, and reasonable to rely upon.

41782. (a) The board may make adjustments to the amounts reported pursuant to subdivisions (a) and (c) of Section 41821.5, if the city, county, or regional agency demonstrates, and the board concurs, based on substantial evidence in the record, that achievement of the diversion requirements of Section 41780 is not feasible due to either of the following circumstances:

(1) A medical waste treatment facility, as defined in subdivision (a) of Section 25025 of the Health and Safety Code, accepts untreated medical waste, which was generated outside of the jurisdiction, for purposes of treatment, and the medical waste, when treated, becomes solid waste.

(2) (A) A regional diversion facility within the jurisdiction accepts material generated outside the jurisdiction and the conversion or processing of that material results in the production of residual solid waste that cannot feasibly be diverted. Any adjustment provided pursuant to this paragraph shall apply only to that portion of the residual solid waste produced as a consequence of processing material that is not subject to the reporting requirements of subdivisions (a) and (c) of Section 41821.5 and that cannot feasibly be allocated to the originating jurisdiction.

    (B) For purposes of granting the reduction specified in subparagraph (a), and for the purpose of calculating compliance with the diversion requirements of Section 41780, "regional diversion facility" means a facility which meets all of the following criteria:

1. The facility accepts material for recycling from both within and without the jurisdiction of the city or county within which it is located.
2. All material accepted by the facility has been source-separated for the purpose of being processed prior to its arrival at the facility.
3. The residual solid waste generated by the facility is a byproduct of the recycling that takes place at the facility.
4. The facility is not a solid waste facility or solid waste handling operation pursuant to Section 43020 (e.g., a composting facility with a solid waste facility permit, or in the Board’s Notification tier).
5. The facility contributes to regional efforts to divert solid waste from disposal.

(b) If the board makes an adjustment pursuant to subdivision (a), the annual report required pursuant to Section 41821 by the jurisdiction, within which a medical waste treatment facility or regional diversion facility described in subdivision (a) is located, shall include all of the following information:

1. The total amount of residual solid waste produced at the facility.
2. The waste types and amounts in the residual solid waste that cannot feasibly be diverted.
3. The factors that continue to prevent the waste types from being feasibly diverted.
4. Any changes since the petition for adjustment was granted or since the last annual report.
5. The additional efforts undertaken by the jurisdiction to divert the waste produced at the facility.

(c) Based upon the information submitted pursuant to subdivision (b), if the board finds, as part of the biennial review pursuant to Section 41825, that the residual solid waste that previously could not be diverted can now be diverted, the board shall rescind the adjustment commensurate with the amount of diversion of the residual tonnage.

(d) It is not the intent of the Legislature to exempt any solid waste facility or handling operation from periodic tracking and the reporting of disposal tonnage's in accordance with the regulations adopted by the board pursuant to subdivisions (a) and (c) of Section 41821.5, or from the permitting requirements pursuant to Section 43020.

8.  Restricted wastes (agricultural wastes, inert solids, scrap metals, white goods) may count toward diversion in the original or a new base year if criteria in PRC Secs. 41781.2 or 41781.3 are met: (The full text of PRC 41781 is available on the Web.)

41781.2. (a) (1) It is the intent of the Legislature in enacting this section not to require cities, counties, and regional agencies to revise source reduction and recycling elements prior to their submittal to the board for review and approval, except as the elements would otherwise be required to be revised by the board pursuant to this part. Pursuant to Sections 41801.5 and 41811.5, compliance with this section shall be determined by the board when source reduction and recycling elements are submitted to the board pursuant to Section 41791.5. However, any city or county may choose to revise its source reduction and recycling element or any of its components prior to board review of the source reduction and recycling element for the purpose of complying with this section.

(2) It is further the intent of the Legislature in enacting this section to ensure that compliance with the diversion requirements of Section 41780 shall be accurately determined based upon a correlation between solid waste which was disposed of at permitted disposal facilities and diversion claims which are subsequently made for that solid waste.

(b) For the purposes of this section, the following terms have the following meaning:

"Action by a city, county, regional or local governing body” means franchise or contract conditions, rate or fee schedules, zoning or land use decisions, disposal facility permit conditions, or activities by a waste hauler, recycler, or disposal facility operator acting on behalf of a city, county, regional agency, or local governing body, or other action by the local governing body if the local government action is specifically related to the claimed diversion.

“Scrap metal” includes ferrous metals, nonferrous metals, aluminum scrap, other metals, and auto bodies, but does not include aluminum cans, steel cans, or bimetal cans.

"Inert solids” includes rock, concrete, brick, sand, soil, fines, asphalt, and unsorted construction and demolition waste.

"Agricultural wastes” includes solid wastes of plant and animal origin, which result from the production and processing of farm or agricultural products, including manures, orchard and vineyard prunings, and crop residues, which are removed from the site of generation for solid waste management.  Agriculture refers to SIC Codes 011 to 0291, inclusive.

(c) For purposes of determining the base amount of solid waste from which the diversion requirements of this article shall be calculated, "solid waste" does not include the diversion of agricultural wastes; inert solids, including inert solids used for structural fill; discarded, white-coated, major appliances; and scrap metals; unless all of the following criteria are met:

1. The city, county, or regional agency demonstrates that the material was diverted from a permitted disposal facility through an action by the city, county, or regional agency which specifically resulted in the diversion.
2. The city, county, or regional agency demonstrates that, prior to January 1, 1990, the solid waste which is claimed to have been diverted was disposed of at a permitted disposal facility in the quantity being claimed as diversion. If historical disposal data is not available, that demonstration may be based upon information available to the city, county, or regional agency which substantiates a reasonable estimate of disposal quantities which is as accurate as is feasible in the absence of historical disposal data.
3. The city, county, or regional agency is implementing, and will continue to implement, source reduction, recycling, and composting programs, as described in its source reduction and recycling element.

The restricted waste criteria set forth in PRC 41781.2(c) are commonly referred to as the local action, historical documentation, and program implementation criteria.  The historical documentation and program implementation criteria are jurisdiction-specific, while the local action criterion is program-specific.

41781.3.(a) The use of solid waste for beneficial reuse in the construction and operation of a solid waste landfill, including use of alternative daily cover, which reduces or eliminates the amount of solid waste being disposed pursuant to Section 40124, shall constitute diversion through recycling and shall not be considered disposal for the purposes of this division.

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Last updated: December 28, 2007