Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


December 12‚ 2011

MassDEP’s Proposed Approach to Anaerobic Digestion: Solution or Stomachache?

By Katy E. Ward

MassDEP has proposed amendments to the Commonwealth’s solid waste regulations to facilitate the recycling of food waste and other materials with high organic content that can be converted to energy. Under the new approach, eligible facilities would no longer be classified as solid waste management facilities requiring site assignment from the host municipality’s local board of health. Instead they would need authorization from MassDEP under a permitting system MassDEP has also proposed. The hope is that siting such facilities will now be easier.

Objectives (from MassDEP’s Draft 2010-2020 Massachusetts Solid Waste Master Plan)

·         To recycle an additional 350,000 tons of organic material by 2020 (Massachusetts currently recycles about 100,000 tons of organic material), and

·         To help reduce overall waste generation 30 percent by 2020 and 80 percent by 2050.

Current Rules

MassDEP’s current rules exempt small organic material recycling and composting facilities from site assignment requirements. Anaerobic digesters, which convert organic material to energy, have still needed either a local site assignment or a project-specific Determination of Need from MassDEP. This makes it more difficult to site these facilities.

Task Force

MassDEP and industry agreed that the Commonwealth’s solid waste regulations should specifically address anaerobic digestion in a way that is consistent with the Commonwealth’s recycling objectives. MassDEP launched a Task Force on Building Organics Capacity to recommend ways to promote the siting and development of additional anaerobic digestion, composting, and recycling capacity in Massachusetts. The proposed amendments were based in part on the Task Force’s findings.

Proposed Rules

The amendments would modify the definition of solid waste so that facilities handling organics materials would not require site assignment as a “solid waste” facility. Instead, such facilities would have to fit within one of several categories and sub-categories:

·         small storage and processing facilities that handle certain organic or recyclable materials;

·         larger recycling, composting, and conversion operations that qualify for one of several new “Permit by Rule” sub-categories; and

·         operations that must obtain facility-specific recycling permits because they exceed the limits on the size to qualify for a Permit by Rule.

To stay within the Permit by Rule limits, composting facilities could accept up to 30 tons per day (TPD) and aerobic or anaerobic digesters could accept up to 60 TPD. Also, Permit by Rule facilities would have to meet tough standards on the percentage of input that becomes residuals – the waste remaining after treatment or processing. The proposed regulations would limit residuals to 5% of the weight of the materials processed on a quarterly basis.

The proposed amendments also would authorize the use of source-separated vegetative and food materials in anaerobic digesters at Publicly Owned Treatment Works (POTWs), with MassDEP approval. While the existing rules do not prohibit anaerobic digesters, MassDEP hopes to encourage more installations by explicitly allowing their use.

MassDEP will conduct public hearings on its amendments in December 2011 and January 2012; written comments are due January 23, 2012.

Will it work?

Facilities large enough to be economically feasible, and to make a major contribution to MassDEP’s objectives, are likely to exceed the Permit by Rule tonnage limits and find it difficult to meet the residual limits. These larger facilities will need to obtain facility-specific recycling permits involving public notice, comment periods, and opportunities for adjudicatory appeals.

As a result, the industry may continue to find it difficult to develop additional anaerobic digestion facilities. In order to meet its objectives, MassDEP may need to expand the allowed tonnages and relax the residuals standard.

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