December 1, 2008

Metro Requires Cities and Counties to Adopt Mandatory Business Recycling Requirements


By Steve Shropshire

Winter 2008

Recycling of paper and other materials has been standard operating procedure for many businesses in the Metro region for quite some time. The City of Portland imposes mandatory requirements, but outside the city, these recycling efforts have until now been voluntary.

Metro, required by Oregon law to prepare a waste reduction program, estimates that at least 100,000 tons of paper and other materials that could be recycled by businesses each year are discarded as trash. Despite Metro's outreach efforts through its Recycle at Work program, overall recycling rates in the region have declined slightly, to approximately 55 percent in 2007. The goal for the region is 64 percent overall recycling by 2009. Following an extended public hearing and communication process, Metro has determined that mandatory business recycling requirements are necessary in order to reach regional goals.

On September 18, 2008, Metro Council formally amended the Regional Solid Waste Management Plan 2008-2018 to include Business Recycling Requirements ("BRRs"). The BRRs require businesses to separate and recycle a range of materials, to provide recycling containers, and to post recycling instructions for employees. Plastic, glass, and aluminum containers, as well as recyclable paper and cardboard, are included in the BRRs. The BRRs do not apply to construction and demolition waste, which is regulated by the Enhanced Dry Waste Recovery Program. Many businesses in the region may already be meeting some of these requirements, which are meant to build on the voluntary approach to recycling that has been the foundation of existing programs.

Pursuant to Metro Ordinance No. 08-1200, all local governments in the Metro region must pass legislation to implement the BRRs and enforcement provisions by February 27, 2009. Metro has proposed an advisory model ordinance for this purpose. If a city or a county chooses not to adopt the model ordinance, it can nevertheless comply by demonstrating to Metro that it has passed other legislation that satisfies the BRRs.

Local governments are permitted to exempt certain businesses from some or all of the BRRs, for example, businesses that have significant space constraints or that do not generate recyclable materials. Local governments may contract with Metro to provide compliance services. Otherwise, it will be up to local governments to determine the method for ensuring compliance (subject to Metro approval). Because this is a mandatory program, businesses that do not comply with recycling requirements can be cited and fined. Metro has indicated, however, that its goal is not to punish but to expand the recycling efforts of businesses that do not currently recycle and to provide educational or technical assistance as needed to boost compliance. Metro has allocated funds to assist jurisdictions with outreach, implementation, and other costs related to the BRRs. A county or city can obtain access to funds through an intergovernmental agreement with Metro.

Building owners, property managers, and business tenants should ascertain how the BRRs will affect them. Generally, the party responsible for providing trash and recycling services for a commercial office building is responsible for complying with the BRRs and the requirements of the applicable local implementing ordinance. Lease provisions should also be analyzed to determine which party — landlord or tenant — will bear any additional costs related to BRR compliance.

These new Business Recycling Requirements merit careful review by cities and counties because timely compliance is required. Businesses that will be affected by these new requirements should closely monitor legislative action and prepare for any necessary operational changes to existing recycling practices.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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