UPDATE - NYS Proposed Legislation Likely to Impact Large Food Waste Generations

Author: John Brusa, P.E.

There continues to be a focus globally, nationally and at the state level on food waste reduction, recovery and recycling. In New York State, legislation for increasing food donation and food scrap recycling was brought forward in 2017, but not advanced. Here we are in early 2018, and similar legislation is being proposed.  Here is a quick outline of where things stand.   

With the 2017 proposed legislation held back last year, the New York State Department of Environmental Conservation (NYSDEC) and the New York State Pollution Prevention Institute (P2I) spent time in 2017 further educating different stakeholders on what the proposed legislation is about and discussing possible changes to the potential legislation in the future. When Governor Cuomo released his budget proposal in mid-January 2018, the proposed legislation was again included, with only a minor change. A summary of the proposed legislation is as follows:

  • All generators must separate excess food for donation. Excess food is defined as edible food that is not sold or used by the generator. This could be donations to local food banks, food pantries, and food rescue organizations.

  • Food scraps include inedible food and food contaminated papers, and edible food that is not donated. Residential sources and recalled or seized food is excluded. The legislation focuses on large food scrap generators, which would likely include supermarkets, restaurants, entertainment venues, colleges, healthcare facilities, and hospitals.

  • Designated food scrap generators, defined as generating equal to or greater than 2 tons per week of excess food and food scraps at a single location, will be required to separate remaining excess food and food scraps that can be recycled, if a viable organics recycler is located within 40 miles (previously 50 miles in 2017 proposed legislation). Food packaging is to be removed, if practical, unless the organics recycler that accepts the food scraps will depackage. The designated food scrap generators are responsible for properly storing the food scraps on-site, training workers, and end recycling. End recycling can be performed on-site, or transported to an off-site organics recycler via self-hauling or a third party food scraps transporter.

  • An organics recycler includes rendering facilities, animal feed producers, composting facilities, digestion facilities, fermentation facilities or other approved NYSDEC facilities which process the food scraps into a beneficially used material. 

  • If a food scraps transporter uses an intermediary facility or a transfer station, the transporter must ensure the food scraps are taken to an organics recycler.  Solid waste combustion facilities and landfills CANNOT accept source-separated excess food and food scraps from designated generators, unless they have a waiver. A one year waiver may be obtained for undue hardship, such as excessive cost.

    • The proposed legislation will not apply to:

  • Designated food scraps generators located in a city with a population of more than 1 million, provided a local law is in place. For instance, New York City already has a local law regulating food scraps.
  • Elementary and secondary schools.
  • Designated food waste generators serviced by a mixed waste recycler, such as the case in Delaware County

The proposed legislation would require generators to complete an annual report to the NYSDEC, which would include the amount of excess food donated and/or excess food not donated, amount of food scraps recycled, and organics recycler(s) and transporters used. Added monitoring and recordkeeping would also be required of the generators and transporters to report accurate information to the NYSDEC.

If the proposed legislation is ultimately passed, it is anticipated to become effective January 1, 2021. If passed, the following action items are expected to be enacted by the NYSDEC:

  • In consultation with generators, the NYSDEC will publish on their website the methodology the NYSDEC will use to determine designated food scraps generators, a list of all designated generators and a list of all food scraps transporters.

  • By October 1, 2020 the NYSDEC will have completed an assessment of the capacity of organics recyclers and notify designated food scrap generators if they must comply with the recycling mandate.

  • The NYSDEC will develop and distribute educational materials for the generators and municipalities for their use.

  • The NYSDEC will promulgate rules and regulations to implement.

The NYSDEC is working on multiple financial incentives and funding for increased food donation and food scraps recycling. Funding options have been available and are expected to continue for municipalities, food banks, large generators, Climate Smart Communities, as well as for research. There are also Farm to Food Bank Tax Credits available.

We will continue to keep you updated on the legislation as things progress.