Wednesday, October 21, 2015

New federal water rule blocked by court

 By Ken McEntee

As many observers expected, the Obama administration’s new “Clean Water Rule” that redefines the “Waters of the United States” (WOTUS) has been stayed in federal court. This month, the Sixth U.S. Circuit Court of Appeals issued a nationwide stay of the new rule, blocking its implementation while numerous court challenges across the country are sorted out and tried.

“The Sixth Circuit stayed the rule across the country to maintain the status quo while it determines if the court has jurisdiction to hear the challenge on its merits or whether the federal district courts should hear the cases first,” according to the Pacific Legal Foundation (PLF), which sued the administration on behalf of a group of landowners, farmers and cattlemen to invalidate WOTUS.

WOTUS, which was developed by the U.S. EPA and the Army Corps of Engineers, was issued on June 29 and immediately was challenged in 10 different suits involving more than 30 states and scores of private parties.

The stay was hardly a surprise. In July, Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, told Composting News that a barrage of lawsuits, injunctions and acts of Congress was likely to block the new regulations from going into effect.

“I think this will be in the courts for years,” said Lehr, the nation’s first Ph.D. in groundwater hydrology who was among the first advocates for the creation of the EPA almost 50 years ago. “With all of the various filers from multiple states and organizations, I can’t imagine that they will have trouble finding judges at the right levels who will place injunctions against the carrying out of this law.”

H. Reed Hopper, principal attorney for PLF, said that whichever court ultimately decides the fate of the new rule, the Sixth Circuit’s stay decision is noteworthy in its conclusion that the rule appears to be invalid on its face because:

  • It is arguably inconsistent with Supreme Court decisions limiting the scope of the Clean Water Act, including PLF’s 2006 case of Rapanos v. United States;
  • It was apparently issued without adequate public review and comment; and
  • It may undermine the Clean Water Act’s goal of recognizing the primary role of the states in protecting local land and water use.

“As PLF argues in our challenge to the sweeping rule, the Obama administration’s new rule represents an unprecedented expansion of federal power that could bring virtually all the nation’s water and much of the land under command-and-control direction from Washington, D.C.,” Hopper said. “Its vast expansion of the Clean Water Act jurisdiction violates both the terms of the act and the constitution’s limits on federal authority. Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded, including artificial reflective pools, ornamental waters and some ground water.”

As reported in the August issue of Composting News, Robert LaGasse, executive director of the Mulch and Soil Council, expressed reservations about WOTUS, saying that the rule “presents a big problem for anybody who wants to make changes to their property.”

"The rules are so vague that you might get one answer from one regulator and a completely different answer from another regulator,” LaGasse said.

The U.S. Composting Council, on the other hand, isn’t concerned about the new rule, according to Cary Oshins, director of education for the organization.

“I don’t think this will make much of a difference for compost sites,” Oshins said.

Opponents like Hopper, however, said the rule, if enacted, would impact everybody.

“Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats,” Hopper said. “This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection. The new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington D.C. to act as zoning and land use czars for the entire nation.”

Plastic company cannot claim biodegradability, FTC rules

By Ken McEntee

The Federal Trade Commission (FTC) has ruled biodegradability claims by a plastics additive manufacturer to be deceptive. The attorney for Painesville, Ohio-based ECM BioFilms said ECM will appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

“It is a disastrous decision that should be held as unconstitutional under the First Amendment,” said Jonathan Emord, of Washington D.C.-based Emord & Associates. “It is an egregious instance of abuse of agency discretion.”

Emord said FTC’s order against ECM reversed the decision of its own administrative law judge and contradicted the testimony of its own scientific experts.”

In January 2015, FTC’s Chief Administrative Law Judge D. Michael Chappell ruled that ECM’s claim that its plastics additive, ECM MasterBatch Pellets, causes plastics to biodegrade was supported by competent and reliable scientific evidence and rejected FTC’s challenge to that claim. Chappell also rejected FTC’s argument that the term “biodegradable” implies that a product will completely biodegrade into elements found in nature within one year after customary disposal — a position articulated in the FTC’s Green Guides industry guidance.

Along with reversing the ALJ decision, FTC changed the one-year rule in its Green Guides to says that products must be proven to break down into natural elements within five years of disposal to claim biodegradability.

ECM advertised the additive causes plastics to be biodegradable, that plastics treated with MasterBatch Pellets are “biodegradable in a landfill” and that plastic products made with ECM additives “biodegrade in nine months to five years.”

Emord said the latter claim had been since withdrawn.

FTC in October 2013, filed an administrative complaint alleging that ECM’s claims were false or unsubstantiated. After about three months of hearings, the commission officially issued its opinion and final order against ECM on October 19. The order basically tells ECM to stop making claims of biodegradability.

“In its opinion, written by Commissioner Terrell McSweeny, the commission affirmed (Chappell’s) initial decision that ECM made deceptive claims that plastics treated with ECM’s additive would completely biodegrade in a landfill within nine months to five years, and that scientific tests supported this claim,” FTC announced. “The commission also upheld the ALJ’s finding that ECM encouraged its customers – companies that manufacture plastics – to pass on the deceptive claims to their customers and end-users.”

FTC said that based on its own examination of the evidence, it also found that ECM made implied claims that plastic products treated with ECM’s additive will biodegrade in a reasonably short period of time, or within five years, and that these claims were false and unsubstantiated. This reversed the ALJ’s finding that the commission did not prove that ECM’s environmental marketing conveyed such implied claims. In its ruling FTC considered ECM’s customers’ inability to “readily judge for themselves the truth or falsity of ECM’s claims.”

The FTC vote to approve the Opinion and Final Order was 4-0, with Commissioner Maureen Ohlhausen dissenting in part and issuing a separate statement. In her statement, Ohlhausen agreed with the ALJ that FTC failed to prove that ECM’s unqualified “biodegradable” claim caused reasonable consumers to believe that treated products would biodegrade in a reasonably short time period.

“This is a momentous decision in the sense that is will transform the industry,” Emord told Composting News. “It promulgates a new rule amending the FTC Green Guide to say that plastic has to biodegrade into elements in nature within five years of customary disposal or you can’t call it biodegradable. The problem is that is not scientific. First of all, materials don’t ordinarily break down into elements - they break down into compounds. Any substance from a piece of wood to banana to a piece of paper breaks into compounds, not elements, which means that there is nothing that can qualify for the term ‘biodegradable.’”

Emord said the five-year rule for a substance breaking down into elements is “nutty.”

“Intrinsically biodegradable substances cannot be predicted to biodegrade within any set time period,” he said. “It depends on ambient environmental conditions and the relative presence of biota. Under the new FTC rule, a product that completely biodegrades five years and one minute after disposal is not lawfully labeled ‘biodegradable’ but one that completely biodegrades just one minute before is.”

Emord said more than 20 gas evolution tests done by ECM and companies that purchased the additive confirmed intrinsic biodegradability.

“Those are generally accepted tests and FTC rejected those tests and articulated what it would accept as biodegradable in broad terms,” Emord said. “There is no testing methodology to prove what they will accept. Nothing is going to completely break down, even if it is intrinsically biodegradable, within five years by any reliable measure.”

Emord said Mort Barlaz, of North Carolina State University, “who is recognized as one of, if not the top expert in the world on biodegradation of plastics in the world,” testified to the commission that the ECM additive made plastics intrinsically biodegradable.

“The method of testing was even affirmed as valid by FTC's own testifying expert, Dr. Thabet Tolaymat, a representative of the U.S. EPA,” Emord said. The judge agreed, in very tedious detail, that we showed proof of biodegradability, and that FTC did not prove otherwise. Without a reasoned explanation for departure from the science, the FTC adopted instead an arbitrary five-year cut off as the standard for allowing biodegradable claims. This is a very strange process where the prosecutor is also the judge. The commission simply rejected all of the evidence that convinced the ALJ of our case, and didn’t have to explain why.”

According to ECM, plastics treated with its additive has been tested and proved as biodegradable and safe for the environment by using the following ASTM test methods D5209, D5338 and 5511.

A complete history of the case against ECM can be found in FTC Docket No. 9358, at

Monday, October 12, 2015

Local media duped: Apple maggot interrupts yard waste movement

By Ken McEntee

Composting News

The Washington State Department of Agriculture is continuing to work with composters in the eastern part of the state to ensure that apple maggots don’t threaten the state’s $2 billion apple industry, said Steve Fuller, policy assistant to the state director of agriculture.

Fuller said the department has hired three consultants to assist in a pest-risk analysis, which is expected to be completed in March 2016.

He said a quarantine on food waste being transported from western Washington to composting facilities in eastern Washington remains in effect.

Meanwhile, the Washington Organic Recycling Council (WORC) said local media falsely reported that the department shut down two composting facilities in Eastern Washington for operating without a permit to accept organic material. Specifically, television station KIMA, in Yakima, Wash., reported the shutdowns based on unchecked press releases from what WORC said were fictitious organizations using the names Western Washington Compost Alliance and the Washington State Composting News. Neither of those organizations appear to exist.

“All of our member compost facilities in eastern Washington are still open for business and have been operating legally,” WORC said.

Apple maggots deposit eggs in apples. The larvae eat the fruit and eventually emerge as flies during the spring. The maggots are common west of the Cascade Mountains, where 60 to 80 percent of the apple trees are thought to be infested, Fuller said. The bulk of the state’s apple industry is located east of the Cascades.

Fuller said apple growers became concerned about potential infestation of their orchards after PacifiClean Environmental LLC signed a contract to haul yard waste from Seattle, in western Washington, to its composting facility in Quincy, in the east. 

“That was the trigger that caused the concern,” Fuller said. “There are apples in the backyard green waste bins and that is a potential pathway for apple maggots to move across the state.”

Along with PacifiClean, three other composters, he said, were receiving yard waste from the state’s quarantined area. The agriculture department asked those facilities to stop processing municipal green waste delivered from the quarantined area of the state. Besides PacifiClean, the others were Royal Organic Products, of Royal City, Barr-Tech Composting, in Spokane, and Natural Selection Farms, of Sunnyside.

Fuller said those facilities are operating, but are not taking yard waste from the quarantined area.  He said the facilities are cooperating with the state and could be able to process the material once research shows that there is no danger of apple maggot infestation.

“We have been working to identify the right set of operating conditions that would allow composters to control the risk of spreading apple maggots,” Fuller said. “We want them to be successful in the composting business while affording the apple industry the protection that it needs.”

Presently, he said, it is believed that the heat generated during the composting process is sufficient to kill the apple maggot larvae and pupae, but that needs to be confirmed in a “scientifically rigorous way.”

Fuller said two consultants from the U.S. and an international consultant have been hired to conduct the pest-risk analysis.

Officials from PacifiClean and Natural Selection Farms did not returned calls to Composting News prior to publication.

Dan Corum, president of WORC, commenting on the media reports, which were based on information from apparently phony organizations, said, “It is puzzling and unfortunate that someone would perceive a need to issue false information anonymously. Eastern Washington compost facilities are and have been open and operating legally within their permits and in cooperation with state and local regulators. WORC member compost facilities have been cooperative and working with regulators to find beneficial solutions to issues that impact both agriculture and composters.”

He said WORC members have been active in the recent developments regarding special permits to be issued by the department of agriculture for the transportation and composting of food and yard trimmings from quarantine areas for apple maggot to compost facilities located within pest-free areas of the state.

Oakland reduces food compostable collection rates

By Ken McEntee

October 7, 2015

Following angry protests from restaurant owners in Oakland, the city has lowered its commercial compost collection rates to 30 percent below the cost of picking up trash through July 2016. After that, the organics collection rate will increase to 25 percent below the waste collection rate. (See related article.)

The move reversed a situation in which the city, in July, while declaring that it wants to keep organics out of landfills, set commercial organics collection rates higher than the rate for waste collection (see Composting News, July 2015).

The new rates were part of a new 10-year contract that gives Waste Management of Alameda County a monopoly on the commercial collection of trash and compostables in the city of Oakland. The new rates coincided with the city’s launch of “Oakland Recycles,” a new zero waste program of trash, compost and recycling services with a goal to divert all compostable and recyclable material away from landfills.

Independent restaurant owners uniting under the name the name Oakland Indie Alliance, trashed the arrangement, protesting in front of City Hall.

“We are shocked by the massive compost fee increases in the contract,” Gail Lillian, owner of Liba Falafel, said at the time. “Additionally, the composting fees are set higher than trash fees, serving as a deterrent for composting.”

Lillian said, her monthly charge for organics collection more than doubled, from $225 per month to $460 per month – an increase of almost $3,000 per year. Trash collection rates increased, she said, but not nearly as much as her composting bill.

Prior to a special City Council meeting to consider revising the rates, almost 40 restaurant owners sent a letter to council that said the proposal revisions were not good enough.

“We hope that you agree that the protracted and convoluted process of writing and approving the original contract will stand as an example of how not to write a city contract for many years to come,” the letter said. “We understand this is biggest contract Oakland has ever written, and that council and city staff spent many hundreds of hours and millions of dollars to write it. Much of this effort and money was clearly wasted. Instead of writing a contract that serves the citizens and businesses of Oakland – either by providing us services we needed, or by keeping rates sustainable for services we already had – council approved a contract which has been referred to as the ‘Rolls Royce’ of contracts, with vastly increased costs being borne primarily on the backs of restaurants and multi-tenant buildings through exorbitant rates. Many of us invested in Oakland during challenging times, and hope to benefit from its resurgence. Terrible deals like this pull the rug out from under us. Oakland's independent business community will wither like it did during the early 2000 dot-com boom if you continue to ignore our needs.”

The organics collection rate adjustment to 30 percent of the waste collection rate through July 1, 2016, and 25 percent of the trash rate thereafter, the restaurateurs said, because:

  • Landfill and compost rates are still the highest in the region, by far.  
  • Regional compost rates for most surrounding cities are at 50 percent of landfill rates.
  • Twenty-five percent is far below the norm.“We need you to do more,” the letter said. 
 Please take the time to make this contract right.”
The restaurateurs called for the removal of unnecessary services from the contract with Waste Management; the re-examination of the balance of rate adjustments between the various entity types; examining the disposition of the $28 million annual franchise fee paid to the city; and bringing commercial rates in line with others in the region.
The city, however, approved its proposed rate adjustment.

Under the new program, the city admitted, commercial composting service rates charged by Waste Management “upside down – higher, in most cases, than the comparable rates for trash service, creating a disincentive for businesses to compost.”

For example, the monthly rate for collecting a 20-gallon cart of trash once a week was initially set at $27.97. The rate for the same sized cart and frequency of collection for compostables was set at $33.84 per month. Weekly collection of a seven-yard trash bin was $968.10 per month, compared to $1,109.75 for compostables.

Oakland restaurants protest food waste collection hikes

(Originally published in Composting News, July 2015)

By Ken McEntee

July 20, 2015

The city of Oakland this month began its Zero Waste initiative to keep recyclable and compostable materials out of landfills. Local restaurant owners, meanwhile, were hit with a big surprise when they got their new trash bills, which took effect on July 1.

“We are shocked by the massive compost fee increases in the contract,” said Gail Lillian, owner of Liba Falafel. “Additionally, the composting fees are set higher than trash fees, serving as a deterrent for composting.”

For example, the monthly rate for collecting a 20-gallon cart of trash once a week is $27.97. The rate for the same sized cart and frequency of collection for compostables is $33.84 per month. Weekly collection of a seven-yard trash bin is $968.10 per month, compared to $1,109.75 for compostables.

As a result of a new 10-year contract with the city of Oakland that gives Waste Management of Alameda County a monopoly on the commercial collection of trash and compostables, Lillian said, her monthly charge for organics collection more than doubled, from $225 per month to $460 per month – an increase of almost $3,000 per year. Trash collection rates increased, she said, but not nearly as much as her composting bill.

In a letter to Waste Management and to Oakland Mayor Libby Schaaf, a group of local restaurant owners said that cost advantages of composting and recycling created strong incentives to reduce landfill use, leading to different choices when shopping for supplies and ingredients to reduce waste. It makes no sense, Lillian says, especially in light of the city’s Zero Waste initiative, to make restaurants may more to separate their compostables.

Following a protest by local restaurant owners – who have formed a new group called the Oakland Indie Alliance - City Council was considering a revised proposal that would reduce rates for organics collection to 90 percent of the trash rate. Lillian called it a short term fix.

Until the new waste contract went into effect, Waste Management controlled commercial trash collection, but companies were free to contract with other vendors for recycling and composting pickups, Lillian said. Lillian and some other restaurant owners hired Recology to take their food waste. The new contact gave Waste Management a monopoly on composting as well. The contract was approved last fall, ending a suit Waste Management filed against Oakland after the city earlier awarded an exclusive collection contract to another company.

“We expected to see a rate increase with the new contract, but we didn’t expect this,” she said.

On June 10, Lillian and about 24 other restaurant owners held a press conference in protest of the new rates on the steps of Oakland City Hall. Some brought their food waste containers with them.

“The restaurants, whom have been big supporters of composting for years, are getting massive increases in this new contract,” she said. “Some of us have seen our composting rates triple. One restaurant is getting an increase of $11,000 from last year and some others say they are being charged $8,000 more.”

A boycott of composting is one response the restaurant owners could consider, Lillian said. Unfortunately, however, they could be fined under a new law that prohibits more than 10 percent recyclables or food waste in their trash bins.

On July 20, City Council held a special meeting to consider the rate revision.

“Even at 90 percent of the trash collection rate, the charge is still 30 to 40 percent of the comparable rates for surrounding cities,” Lillian said. “In addition, the revised contract would allow Waste Management, starting next year, to recoup their losses from lowering their organics collection rates this year.”

Lillian said City Council members were “furious” about the contract and showed support for the restaurant owners. But she acknowledged that council members were negligent in approving a contract that they apparently had not read.

“I do hold them responsible because they should have done their due diligence,” Lillian said. “But I am confident that they will now act on our behalf.”

As part of the contract, she said, the city required Waste Management to switch its truck fleet to use natural gas powered vehicles. To comply, she said, Waste Management had to purchase 86 new trucks for $330,000 each.

“The city should have realizes that Waste Management was going to try to raise rates to cover those costs,” Lillian said. “We expected to get a bit of an increase but this increase isn’t what we thought they signed us up for.”

The Indie Alliance was formed in March after the city passed a minimum wage of $12.25 per hour – a 36 percent increase from the previous minimum wage.

“We’re getting squeezed,” she said. “That’s why we’ve gone from seven to 70 members in the few months. First it was the high wages, then the composting rate hike. And a $15 minimum wage is coming soon.”

Calls to city officials, including Council President Lynette Gibson McElhaney and Sean Mahar of Oakland Environmental Services, were not returned.

WOTUS muddies the waters; may stifle property use

(Published in Composting News, August 2015)

By Ken McEntee

The new “Clean Water Rule” defining the “Waters of the United States” (WOTUS) purportedly is intended to clarify enforcement of the federal Clean Water Act (CWA). Instead, many observers say, the new rule, which is set to take effect on August 28, has further muddied the waters, creating new vagaries that can stifle even simple plans of businesses and landowners.
The rule, created by the U.S. EPA and the Army Corps of Engineers, was published in the Federal Register on June 29.

“This rule presents a big problem for anybody who wants to make changes to their property,” said Robert LaGasse, executive director of the Mulch and Soil Council, the national trade association that represents producers of horticultural mulches, consumer potting soils and commercial growing media. 
“Under this rule, making changes to your property is going to require a lot more investigation and engineering to be sure that you’re not going to be in violation of some law. If you have to make corrections to your land in a hurry, you are jumping out of the frying pan and into the fire. The rules are so vague that you might get one answer from one regulator and a completely different answer from another regulator.”

And the penalty for a violation – even an ambiguous one - can be severe: As much as $37,500 per day, and/or criminal prosecution, according to M. Reed Hopper, principal attorney with the Pacific Legal Foundation (PLF), a Sacramento, Calif.-based public interest legal organization. In July, PLF, on behalf of a variety of landowners and organizations, filed the first lawsuit against the Obama administration to block implementation of the new rule.

As of August 18, the PLF suit has been followed by more than 10 more suits challenging WOTUS have been filed, involving more than 70 plaintiffs, including 11 states, filed in 10 different District Courts. The federal government has motioned to consolidate the district court cases in the D.C. District Court.

“The rule,” Hopper said, “is illegal and unconstitutional because it sets no limit on the CWA’s reach, while explicitly expanding it to waters that the Supreme Court has already ruled to be off-limits to federal control. This new regulation is an open-ended license for federal bureaucrats to assert control over nearly all of the nation’s water, and much of the property, from coast to coast.”

Previously, the CWA provided EPA jurisdiction over navigable waters. The new rule would extend that jurisdiction to such waters as Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands. The presence of those bodies on a property generally could give EPA authority over that land.

Fortunately, said Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, a barrage of lawsuits, injunctions and acts of Congress is likely to block the new regulations from going into effect.

“I think this will be in the courts for years,” said Lehr, the nation’s first Ph.D. in groundwater hydrology who was among the first advocates for the creation of the EPA almost 50 years ago. “With all of the various filers from multiple states and organizations, I can’t imagine that they will have trouble finding judges at the right levels who will place injunctions against the carrying out of this law. If we get lucky and we get a new administration we could put an end to this very quickly. Just about anybody who can get elected on the republican side I think would end it, although Jeb Bush makes me nervous. Even Hillary Clinton may not want to unleash the EPA quite as unreasonably as Barack Obama as a mechanism to reduce the capability of our country.”

Despite his optimism that the new rule, as written, will never take effect, Lehr says business owners should stay informed and proactively fight against it.
“Land and business owners should not be too comfortable about this being shot down,” he said. “I think people are better off being nervous and therefore activated. I would like to see people put their nervousness to use by contacting their representatives. We can’t afford to be passive. If everybody sits back and does nothing, we could end up in a world of hurt.”

What’s the problem?

Presently, through the Clean Water Act, EPA may regulate all navigable waters of the nation. The new rule extends that regulatory power to non-navigable waters – some of which are small and often unconnected to navigable water.

“The rule expressly excludes puddles,” Hopper said. “But it does include Prairie potholes and vernal pools which have the appearance of puddles. It also provides that water within a 100-year floodplain, or water within 4,000 feet of a tributary may be under EPA jurisdiction.”
Whether or not EPA could regulate such water would be determined on a case-by-case basis under the “significant nexus standard.” Significant nexus refers to whether a body of water has, or reasonably could make a connection to navigable waters.

“This is no small thing,” Hopper said. “If this goes into effect, trying to do almost anything on land where any water runs would require you to go through a federal approval process. Basically, if you are within 4,000 feet of a stream and you are going to disturb the land, you will need a federal permit and the cost is prohibitive. On average it would be $170,000 and it would take a couple years to process.”
The vagueness of the 85,000-word rule, Hopper said, is equally problematic.

“If you have wet spots on a property within EPA jurisdiction, and you want to know whether you can do anything on that property, a prudent lawyer is going to tell you that if your situation is not expressly excluded in the rule, that you should get a determination from the Corps of Engineers,” he said. “That creates another problem because up to now the courts have said that if you disagree with that determination you have no right to challenge it.”

Because EPA doesn’t have the resources to enforce the new rule on everybody, LaGasse said, enforcement would likely become a complaint-driven.

“It’s something that could pop up anywhere at anytime, and enforcement would be uneven,” he said.

General runoff, Hopper said, is typically excluded from regulation.
“But if it is a point source where they can point to a specific conduit as a discharge then it is questionable,” he said. “This has come up in situations like in manure piles at a dairy. The agency has gone both ways on this, so you’re taking your chances. That’s the problem. There is no clarity.”
Lehr calls the rule “shear insanity.”

“I have been involved in this since day one and I have yet to find a single human not connected with an environmental activist organization who thinks this makes sense” he said. “It isn’t about clean water. It’s about the EPA taking over every stitch of land with water on it that they possibly can.”

Impact on compost and mulch

The U.S. Composting Council, the national trade association that represents compost producers, isn’t concerned about the new rule, according to Cary Oshins, director of education for the organization.

“I don’t think this will make much of a difference for compost sites,” Oshins said. “This rule really just refines the definition of waters of the U.S. We are already strong proponents of using best management practices for storm water and contact water management. Since the rule encourages the use of green infrastructure, which is a strong and growing market for compost, this is overall a good rule change.”

Will Bakx, founder of Sonoma Compost Co., in Petaluma, Calif., disagrees.

“I don’t feel so comfortable about it,” said Bakx, vice chair of the California Organic Recycling Council and an executive board member of the California Compost Coalition. “I think neighbors have been provided with another avenue to go after composting facilities.”

Bakx has first-hand knowledge about that.
In May, his 22-year-old operation was ordered permanently shut down to settle a federal water quality suit filed by a neighborhood group. The suit, which involved storm water runoff into a nearby creek, cited violations of the Clean Water Act, which regulates the discharge of any pollutant into waters of the U.S.

“Our situation had less to do with water quality than politics,” Bakx said. “The Clean Water Act was used as an excuse to shut us down.”
Which is precisely what concerns WOTUS opponents like Lehr and Hopper.

“The worst case scenario is the cost of fighting it legally when the EPA comes at somebody without just cause,” Lehr said.

Although Sonoma’s problems preceded the new WOTUS rule, Bakx said the new rule could make it difficult to operate a composting facility. Waste discharge requirements for compost operations, now under consideration by the California Water Boards, he said, are directly impacted by WOTUS.

“Although they say otherwise, the state guidelines basically require a zero discharge facility,” Bakx said. “It will present significant costs to operators. It’s ironic, isn’t is, that there is a mandate to divert organics from the landfill, then they make it expensive to do it. If you’re in an area where landfill tipping fees are $25 a ton, how can you set up a composting facility that will cost you $50 a ton to operate?”

Implementation unlikely

Lawsuits like the one filed by PLF on behalf of the landowners, state cattlemen’s associations of California, Washington and New Mexico and others, Lehr said, will likely prevent WOTUS from ever going into effect.

On August 12, the Southern District Court of Georgia held a hearing on the preliminary injunction motion filed by 11 states opposing the rule. Chief Judge Lisa Godbey Wood said she would rule by the WOTUS implementation date of August 28 on the preliminary injunction motion filed by 11 states opposing the rule.

“I am the world’s leading optimist so it is not conceivable to me that this could ever become the law of the land,” Lehr said.

This article, by Composting News editor Ken McEntee, was originally published in Mulch & Soil Producer News.

Seattle sued for trashing privacy rights

Originally published in Composting News, July 2015

By Ken McEntee

The city of Seattle is violating residents privacy and due process rights by requiring garbage collectors to snoop through people’s garbage as part of a new ban on throwing food and food waste into the trash, claims a lawsuit filed against the city this month. A civil rights lawsuit, Bonesteel v. City of Seattle, was filed by attorneys with the Sacramento, Calif.-based Pacific Legal Foundation (PLF), on behalf of a number of Seattle residents who say their rights are violated by the new food waste ordinance.

“This program calls for massive and persistent snooping on the people of Seattle,” said Brian Hodges, PLF principal attorney and managing attorney with PLF’s Pacific Northwest Center in Bellevue, Wash. “This is not just objectionable as a matter of policy, it is a flagrant assault on people’s constitutional rights.”

The suit seeks a permanent injunction and a declaration that the snooping law is void and unenforceable because it flouts core privacy and due process guarantees.

Donor-supported PLF is a public-interest watchdog organization that litigates nationwide for limited government, property rights and individual rights.

In the lawsuit filed in King County Superior Court, PLF attorneys represent — without charge — Seattle residents Richard Bonesteel, Scott Shock, Steven Davies, Sally Oljar, Mark Elster, Greg Moon, Keli Carender and Edwin Yasukawa.

At issue is Seattle Ordinance No. 124582, which took effect on January 1, prohibiting residents from throwing food and compostable paper in the trash. The food waste ban requires garbage collectors to monitor the contents of garbage cans through “visual inspection” and to report residents to Seattle Public Utilities when “significant amounts” of a can’s contents (more than 10 percent) are made up of recyclables or food waste.

Currently, an “educational” tag is affixed to offending cans. Starting in January 2016, fines will be imposed. The law applies to single-family homes, apartments, and commercial properties.

“Seattle can’t place its composting goals over the privacy and due process rights of its residents,” said PLF attorney Ethan Blevins.  “This food waste ban uses trash collectors to pry through people’s garbage without a warrant, as Washington courts have long required for garbage inspections by police.”

Hodges added that although it is “laudable to encourage recycling and composting, the city is going about it in a way that trashes the privacy rights of each and every person in Seattle. 

The city may try to put a happy face on the program, with assurances that it’s not nosy and meddlesome, but the internal documents tell another story. Training documents call for ‘zero tolerance’ and show garbage collectors removing bags to inspect a garbage can, peering into translucent bags, and opening torn or untied bags.

Garbage collectors have already begun placing brightly colored tags in plain view on “offending” cans, PLF said. Starting in January 2016, fines will be imposed ($1 per offense for residents; $50 for multi-family property owners and commercial establishments). 

Although PLF said the fines are nominal amounts, two state constitutional rights are violated:

* Right to privacy. Article I, section 7, of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  This provision offers more expansive protection than the Fourth Amendment to the U.S. Constitution.  Washington courts “jealously guard” the right to privacy, holding that people have a reasonable expectation that the contents of their garbage cans will remain private, and that the government may not search rubbish bins without a warrant.

“The constitution and courts of Washington recognize that the right to privacy, like the right to property, is a fundamental freedom,” said Hodges.  “Seattle city government is subverting that right by prying into people’s private affairs via their trash cans.”

* Right to due process. Article 1, section 3, of the Washington Constitution says, “No person shall be deprived of life, liberty, or property, without due process of law.”  Yet for most alleged offenders, the food waste ban does not provide any method for challenging claims of violation.  In fact, it operates solely on the word of garbage collectors.  With one exception for repeat commercial offenders, there is no requirement for preserving evidence (such as photographs) and no opportunity for appeal.

“This law makes garbage collectors the judges and juries,” said Hodges.  “You’re at the mercy of their off-the-cuff estimates about the amount, or percentage, of food waste and recyclables in your garbage can.  If their subjective hunch goes against you, you get a fine and/or a brightly colored ‘shame tag’ to embarrass you in front of the public. The people of Seattle should not be treated with less respect than is due to accused criminals. In fact, the state constitution guarantees them a right to be treated fairly and with due process, and our lawsuit seeks to uphold that right.”

Davies, one of the plaintiffs in the suit, said, “There is nothing trivial about government abridging our right to personal privacy in our homes and our daily lives. Seattle’s garbage law promotes government snooping, and that’s not just offensive, it’s a violation of constitutional protections for all Seattle residents.  The city can’t treat people’s basic rights as disposable, and I’m grateful Pacific Legal Foundation is helping us stand up for that principle.”

Elster, another plaintiff, added, “Social engineering of this sort leads to unnecessary and unwelcome government intrusion. Seattle’s garbage recycling program may seem well-meaning, and the inconveniences to the public might seem trivial, but there’s nothing harmless about the city attempting to coerce everyone through a program of official prying.  

We’re suing on behalf of all Seattle residents who value their privacy and other basic freedoms, because the people’s constitutional rights take precedence over the politicians’ policy preferences.”

More information, including the complaint, video, a blog post and a Stop City Snooping webpage, is available at