Once again, the Commission has been involved in a number of solid waste management issues, some old and some new. Building on our 2003 success of creating the Waste Tire Management and Recovery Program, we continue to monitor that program’s implementation.

The FY 2004-5 Budget has proven to be a significant challenge for the Legislature as we debate the contentious issues of Education aid reform. The Assembly continues its advocacy for preserving critical funding for education, health, environmental conservation and other programs. This Commission has again focused attention on the need to renew last year’s funding increases for the Environmental Protection Fund recycling programs. You will find a more detailed discussion of the environmental impacts of the Budget in this newsletter.

The Commissions also submitted comments on the NYS Public Service Commission (PSC) proceeding to define a Renewable Portfolio Standard for public utility investment in renewable resources. Naturally, the key issue is the definition of “renewable resources,” which some contend should include waste-to-energy plants. I believe that these facilities are inconsistent with the concept of renewables (such as wind and solar energy) and should not be included. I have also introduced legislation addressing this issue. Excerpts from my letter to the PSC are in this newsletter.

We have worked closely with the Assembly Legislative Commission on Toxic Substances and Hazardous Wastes, Chaired by Assemblymember David Koon, to achieve passage of the bill eliminating the use of burn barrels. For seven consecutive years, the Assembly has passed this bill, while the Senate has failed to act. This issue is discussed further in the Newsletter.

Several other Assemblymembers joined me in submitting comments to the U. S. Nuclear Regulatory Commission on their proposed environmental justice policy for proceedings before the NRC. Most controversial was the NRC proposal that racial motivation and fairness or equity was not to be considered within the context of socioeconomic impacts to be addressed under the National Environmental Policy Act (NEPA). We have urged the NRC to reconsider its proposal and to more actively involve the public in the development of a new draft policy.

I have joined Assemblymember Steven Englebright (former Toxics Commission Chair) in sponsoring legislation that would allow local governments to regulate lead testing and remediation more stringently than the State Fire Prevention and Building Code without approval of the State Building Code Council. We continue our advocacy for the proper management, reuse and recycling of electronic equipment, including computers, televisions, and wireless telephones. The Assembly continues to work on the expansion of the beverage container deposit law to include other types of beverages. I have also included a copy of my op-ed article on the status of New York City recycling efforts. We are actively working on the annual edition of Where Will the Garbage Go?

Other issues occupying the Commission this year include new legislation regulating labeling and disposal requirements for mercury-containing products and a prohibition against brominated flame retardants. We have commented on the EPA mercury emission rule and monitor DEC’s consideration of revising the Part 360 regulations.

I hope that you enjoy this publication and find it interesting and informative. Please feel free to contact my office with your comments and concerns.

April 19th marked the Assembly’s Legislative Earth Day. For seven consecutive years, the Assembly has approved legislation that would substantially limit the open burning of solid waste across New York State (A.5884 Koon, Colton et al/S.3340 Maziarz, et al.).

The Assembly’s annual prioritization of this bill reflects the increasing body of evidence of the dangers posed by open burning of waste. “Burn barrels” are frequently used for the purpose of burning solid waste. New York State environmental regulations currently allow the burning of waste to occur in towns with populations of fewer than 20,000 population.

The “burn barrel” bill has broad support from a many groups, including solid waste management groups, environmentalists, mayors, health professionals, firefighters, casualty insurance companies, as well as individuals across the State directly impacted by emissions from burn barrels. The NYS Department of Environmental Conservation has expressed strong support for passage of this bill.

In March, 2004, the Assembly held a hearing to examine the health and environmental impacts of open burning of waste. Panels of experts and affected parties provided testimony on the adverse effects created by solid waste burning. The hearing also investigated the fire, safety and property damage risks created by open burning, which have been identified as a frequent cause of property fires. Some information and conclusions provided at the hearing include:

• Recent surveys indicate that the practice is becoming more prominent in some communities.

• A recent US EPA report, prepared in cooperation with the NYS Departments of Health and Environmental Conservation found that burning 3 to 11 pounds of household waste in a burn barrel is equivalent to the burning of 200 tons of household waste in a modern, well-controlled incinerator. While few waste management options are pollution free, emissions from open burning are thousands or tens of thousands of times greater than from permitted waste management facilities.

• Smoke from open burning of waste frequently includes significant amounts of over 20 dangerous pollutants, including benzene, particulates, PAHs, lead, arsenic and mercury which can damage the respiratory system, nervous system, kidneys, and liver of those exposed.

• Harmful toxins emitted from the open burning of waste, including dioxins, are generated in significant amounts due to the low combustion temperatures and poor air distribution inevitable in open burning devices. Open burning of solid waste has been identified by the United States Environmental Protection Agency (US EPA) as the largest quantified source of dioxins.

• The toxicity of dioxins, even at extremely low levels, has been linked to serious health problems in humans, including cancer and adverse developmental and reproductive effects.

• Dioxins emitted by open burning can migrate significant distances and can accumulate in the food chain, contaminating meat, dairy and other agricultural products, as well as wild game consumed by humans.

While the bill has regularly passed the Assembly, it has been held up in the Senate. In order to protect the health, safety, and environment of New Yorkers from the harmful effects of open burning of waste, we recommend that you do the following:

• Contact Senator Joseph Bruno and your State Senator and request that they pass this bill.

• Contact the Governor’s Office, requesting his support for the bill and asking that he urge the Senate to pass the bill. In the absence of Senate action this year, the Governor should direct DEC to amend their regulations removing this dangerous loophole.

The Current Problem

The U.S. Environmental Protection Agency (EPA) estimates cell phones will be discarded at a rate of 130 million per year by 2005, resulting in 65,000 tons of waste. The Agency’s estimate of the total electronics waste entering landfills each year is nearly 2.1 million tons.

Chairman Colton has introduced two bills to address the rapidly growing dilemma of wireless or cell phone discards.

• A 3075B Colton, Englebright, et al/ S 903B, would require retailer sellers of wireless telephones to accept such phones back at no cost for recycling or reuse and prohibits the disposal or incineration of a wireless phone.

• A 3770 Colton, Koon, Englebright, et al: would prohibit the sale of disposable cell phones and establishes a civil penalty for violations.

A 2003 Report issued by INFORM (a not-for-profit research organization) “Calling All Cell Phones” cites the Cellular Telecommunications & Internet Association (CTIA) statistic of 140.8 million cell phone subscribers in the US in 2002. That number had grown by 10 million or more each year since 1994 and is expected to exceed that trend over the next several years. Although many old phones may be temporarily stored away in closets and drawers, eventually they will enter the waste stream or preferably recycling collections, as fast as the retired phones going into storage spaces.

ReCellular, a company that refurbishes and resells cell phones collected by various programs across the nation estimates that the average wireless phone life span is currently 18 months, a time period that will likely shrink as newer phones offer enhanced features. The combination of the 18-month life span and estimates of over 180 million US subscribers in 2005 is fairly consistent with EPA’s approximation of 130 million discarded phones in that year. From these figures, INFORM estimates that “about 500 million used cell phones weighing over 250,000 tons will be stockpiled and awaiting disposal by 2005.”

How Many Wireless Phones are Recycled by Industry?

The INFORM Report indicates that, notwithstanding the more than 100 million phones estimated to be retired annually, the industry’s collection programs it reviewed had collected no more than 2.5 million. The Commission spoke with a group of carriers who indicated that cell phone collections continue to increase since INFORM’s Report was released.

The following information on used cell phone collection/recycling programs came from INFORM, CTIA or individual c ompany websites:

AT&T Wireless – Consumers and businesses are invited to participate in the recycling of used wireless phones, accessories and batteries, regardless of the manufacturer or carrier, with proceeds of recycling wireless phones, batteries and accessories donated to “Keep America Beautiful”. Equipment is accepted at any AT& T Wireless retail store and AT&T will pick up unwanted wireless phones and accessories from businesses. No information available on collection numbers or money donated.

Bluegrass Cellular – Consumers are encouraged to bring their used wireless phones to any Bluegrass Cellular Customer Care Center to generate funding ($1 per phone) for the United Way of Central Kentucky. No information available on collection numbers or money donated.

Cingular Wireless – Customers are encouraged to bring old units and accessories that will be refurbished and either 1) donated to battered women’s shelters, 2) sold or warranty-exchanged to customers as refurbished, or 3) sold to 3rd parties for secondary market utilization as phones or for parts recycling. Cingular also collects spent rechargeable batteries at all locations for the RBRC (Rechargeable Battery Recycling Corp.) program, which accepts them back to recycle into new rechargeable batteries. These services are available to any wireless customer, not just Cingular customers. No information provided on collection numbers, re-sales or donations.

CTIA – The international association for wireless phones, Cellular Telecommunications & Internet Association, has a program called “DONATE A PHONE” that recycles used cell phones, raising funds for a variety of charities. They have collected over 2 million cell phones, creating over $5 million in charitable support.

Midwest Wireless – The company collects used phones and accessories at every retail location and sells them to be re-furbished or recycled, claiming they do not dispose of this equipment. Midwest raises funds in its sale of phones for local charities. No information provided on collection numbers, sales or money donated.

Nextel – The company collects used cell phones at their retail stores or buys back phones via internet or mail-in. The company sponsors the Red Cross “Donate-a-Phone” program and forwards proceeds they get from used phone donations to American Red Cross Armed Forces Emergency Services program. No information provided on collection numbers, donations or money donated.

Sprint – The company runs Sprint Project Connect which collects old cell phones at Sprint Stores and Easter Seal location and sells them for re-furbishing. The sales generate funds for over 54 million disabled Americans (Easter Seals and the National Organization on Disability). The company claims to recycle older, obsolete models in “an environmentally sound manner.” No information provided on collection numbers, re-sales or money donated.

T-Mobile – The company website describes a take-back program in Europe, but no information is available on take-back programs in the U.S.

Verizon Wireless – The company has used its cell phone recycling collections for nine years to benefit its HopeLine program. The company collects cell phones from any wireless carrier at all Verizon Wireless stores to be refurbished, recycled, and/or sold. HopeLine has donated wireless phones and airtime, as well as monetary and other contributions to domestic violence shelters and prevention programs across the country. In 2003, Verizon Wireless collected 900,000 wireless phones for recycling.” Verizon also collects spent rechargeable batteries at all locations for the RBRC program to recycle. No information on re-sales or money donated was provided.

While apparently experiencing recent growth, the collection programs obviously still comprise a small portion of the retired phones. The current challenge is to encourage cell phone users to return used phones to the retailers for recycling, refurbishing and reuse.

PCS Administrative Law Judge (ALJ) Issues Opinion on the Utility Renewable Portfolio Standard

Following a proceeding which took more than a year, the PSC ALJ issued her recommended decision on the elements of a Utility Renewable Portfolio Standard (RPS).

The ALJ found that a 25% renewable energy capacity goal by increasing the current 19.4% renewable energy capacity should be achieved by 2013. Further, the ALJ decided that New York should start its RPS by 2006, with review slated for 2008; specific eligible resources would be identified, but RPS parties would be allowed to develop other eligible options as they become viable and available.

Eligible Renewable Energy Sources: The ALJ’s Decision included identification of renewable energy sources that would be eligible. Eligible energy options included biogas (from regulated landfills, sewage treatment plants, agricultural manure operations, and associated energy production technologies), fuel cells, solar, wind, tidal, hydropower (under 30 MW capacity from river flow and without water storage, under 10 MW with expiring contracts, and existing plant upgrades not involving new water storage), and biomass. Eligible biomass sources would be agricultural wood and plant residues, wood from regulated commercial harvesting, waste wood from forest management, (paper and lumber) mill residue, uncontaminated wood pallets, refuse derived fuel (RDF) from the untreated and uncontaminated MSW or C&D wood portion, sustainable biomass grown for energy production, and source-separated, uncontaminated ‘wood portion’ from urban MSW or C&D wastes.

Ineligible Energy Sources: Some energy options were recommended to be ineligible, including coal gasification, nuclear power, combined heat and power (CHP) from natural gas, and hydropower over 30 MW from river flow and most significantly waste-to-energy (WTE) facilities. The Decision contains considerable discussion regarding the decision to exclude WTE at the present time as well as circumstances that might allow its inclusion in the future.

Diversity: The Decision discussed how to promote certain developing renewable energy options and protect some existing small renewable energy resources. Exceptions are created for existing small hydropower (to protect them beyond their current contracts); customer-sited solar and wind up to 300 kW were supported through incentive grants (similar to NYSERDA’s System Benefits Charge (SBC) program). The high cost of these renewable sources merited this approach to encourage investment, rather than requiring them to compete with the large-scale contracts likely for other RPS options.

Effective Date/Authority: The Decision recommended that only renewable energy developed after January 1, 2003 would be eligible, with the exception of wind and existing small hydropower with expiring contracts. The Decision also addresses the diversity of the RPS, how to handle energy imports, PSC authority and completeness of the record. A copy of the document is available from the Public Service Commission.

New York City Recycling Back on Schedule

Last year, recycling collections were cut in frequency as a cost-saving measure recommended by the Mayor. This move followed the 2002 suspension of plastic and glass recycling, creating confusion, significant storage hardships and discouraging residential recycling participation.

In testimony before the NYC Council Committee on Sanitation and Solid Waste Management in March 2004, Commission Chair William Colton stated “Although the schedule changes caused significant setbacks, I remain hopeful that after weekly pick-ups and glass and plastic recycling are resumed, the City’s recycling program can eventually come back and surpass its previous levels, as long as it receives a steady and enduring commitment.”

Assemblyman Colton noted that a recent Independent Budget Office report on the City recycling program indicated substantial promise for the program in the long-term: “As the recycled portion of the curbside-collected waste stream increases, the report tells us that the cost gap between recycling and disposal approaches and drops below zero. While some believe that it is dreaming to anticipate that over 40 percent of our waste could be recycled, some large cities claim to have realized this goal and New York City needs to provide the resources and commitment to reach that goal and maximize the recovery of materials from residential waste.”

NYC Considers Changes to Recycling Law

New York City is re-evaluating Local Law 19, the landmark legislation enacted in 1989 which established a long-term commitment to recycling. This law required the Department of Sanitation (DOS) to achieve specific tonnages of residential and institutional recycling representing 25-30 percent of the waste streams within five years and ultimately reaching the State’s recycling and reduction goal of 50 percent by 1997. Additionally, the City was required to implement leaf and yard waste collection, formulate a comprehensive market development strategy, and prepare annual recycling reports.

While the City has not met the timeline goals in the law, it has achieved steady growth in recycling activity, resulting in a 20 percent recylables diversion from the DOS-collected waste stream by mid-2002. It also resulted in the current cost-savings of paper recycling, attracting businesses such as the Visy Paper and scrap paper dealers.

Assemblyman Colton believes that the tonnage goals are essential, although the timelines may need adjusting, based on recycling growth rates experienced up to mid-2002. In testimony given at a recent City Council hearing on Local Law 19, Colton stated, “The newly-established dates should also account for an increased commitment by the City to enter into longer-term contracts. This will encourage vendors like Hugo Neu to make greater capital investments in the City and assist the City in meeting its commitment to the tonnage goals of Law 19.”

NYC Seeks Viable Alternative Solid Waste Recycling and Management Technologies

This spring, at the urging of the City Council, DOS and the NYS Economic Development Corporation (EDC) issued a Request for Information (RFI) eliciting input for “New and Emerging Solid Waste Management and Recycling Technologies and Approaches” by May 24th. Proposals are under review by an independent consultant who will evaluate each technology and approach for its feasibility as a significant component of the City’s comprehensive waste management system.

As the City develops a new long-term (20 year) solid waste management plan (SWMP) for the nearly 25,000 tons of municipal solid waste generated daily, these new technologies will be incorporated as appropriate and feasible. This approach brings opportunities for promising new technologies to make recycling and waste management more efficient over the next twenty years. Commission staff will monitor this process and report on any significant developments.

Chairman Colton Testifies in Support of Expanded Bottle Bill and Zero Waste Policy in NYC Hearing

In June, Chairman Colton testified before the NYC Committee on Sanitation and Solid Waste Management in support of Resolutions 144 and 174. Resolution 144 supports the enactment of legislation expanding the State Returnable Bottle Law (Bigger, Better Bottle Bill) to include sport drinks, iced teas and botrtle water and returning the unclaimed deposits to the State to fund environmental programs. Colton also supported Resolution 174, which calls on NYC to enact and enforce a Zero Waste Policy. Through reduction of material inputs in manufacturing, packaging and other front-end processes, NYC can substantially eliminate the adverse impacts of garbage disposal, transfer stations and their associated problems, as well as costs of shipping garbage.

Chairman Colton joins volunteers in Coney Island Creek Cleanup!

In May, Chairman Colton participated at a community awareness event sponsored by the Urban Divers Estuary Conservancy and other groups for the Coney Island Creek. The Urban Divers is a non-profit grassroots environmental organization of scientific divers and waterway stewards committed to the restoration, conservation, protection, and public education of our rivers, oceans and marine wildlife; with a special focus on the restoration of the NY/NJ Harbor Estuary.

These groups are committed to bringing life back to Coney Island Creek through restoration of lost wetlands at the extremely polluted headwaters of the creek. The event brought out many volunteers from the surrounding community who helped collect floating debris on the creek.

Chairman Colton was very pleased and impressed with this successful clean-up event and is personally committed to proper restoration of the site. He believes that removing all the accumulated waste and debris will guarantee not only public safety and a cleaner environment, but will give back to the community this “forgotten waterway”.

In 2003, New York finally enacted the Waste Tire Management and Recycling Act, a program that has been priority legislation for the New York State Assembly for several years. The Act creates a fund dedicated to abating tens of millions of stockpiled abandoned waste tires and fostering markets for discarded tires.

A $2.50 per-new-tire fee applies to tires for motor vehicles that are allowed to travel on roads. The fees, which sunset in seven years, are deposited in the Waste Tire Management and Recycling Fund. In Fiscal Year 2003/2004, approximately $8 million was appropriated for the following programs:

Stockpile Cleanup – is primarily the responsibility of the Department of Environmental Conservation (DEC). By Sept. 12, 2004, DEC is required to submit a statewide plan for abatement of all non-compliant waste tire stockpiles to the Legislature and the Governor, and to publish Requests for Proposals for the abatement. DEC is establishing arrangements with organizations to recycle waste tires into civil engineering projects (see the Department of Transportation discussion below) and other applications. The goal is establish viable uses for tires as the stockpiles are cleaned up to curtail their health and environmental threats.

Market Development – is the responsibility of the Environmental Services Unit in the Department of Economic Development (DED). They are required to assist in the private market development of new reuse and recycling technologies for waste tires, promote recycled tire products, and prepare annual reports about markets for stockpiled and newly-generated waste tires.

The NYS Department of Transportation, Thruway Authority, and Energy Research and Development Authority are required to pursue opportunities for reusing and recycling waste tires. The NYS Health Department is directed to study and report on the health impacts of the mismanagement of waste tires.

The Governor has proposed expanding the waste tire fee to include new motorcycle and ATV tire sales and has recommended $18 million for this year’s waste tire program implementation.