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January 20, 2017

Governor Cuomo Proposes Significantly Increased Regulation of Organic Food Waste

In Part KK of his FY 2018 New York State Executive Budget, New York Governor Andrew Cuomo is advancing a legislative proposal to force large generators of organic food waste to rethink their handling and disposal practices. Our expectation is that this proposal will be passed into law in the next few months along with the remainder of the Governor's budget. With the passage of this law, the ability of an organization to send food waste to a municipal landfill will be curtailed. The program applies to generators of two (2) tons or more per week, but could easily evolve into the regulation of all non-household generation of food waste.

The law is intended to accomplish a number of laudable goals, including increasing the donation of edible leftover food, the recycling of food scraps as animal feed, the promotion of composting, lowering greenhouse gas generation and the conservation of landfill capacity. Although the public benefits of the program are laudable, the cost will be borne by the entities generating the waste.

The following businesses and organizations will be required to participate upon the law's enactment:

  • Food Processors
  • Colleges and Universities 
  • Hospitals
  • Hotels
  • Nursing Homes and other Health Care Facilities 
  • Supermarkets and Grocery Stores
  • Venues and Events (convention centers/party houses)
  • Restaurants (serving more than 8,000 meals/week)
  • Correctional Facilities
These entities are required to participate regardless of their actual food waste practices unless all of their food scraps and all of their other solid waste are currently being processed in a mixed solid waste composting or anaerobic digestion facility. The only other cognizable exclusion from participation by a large generator is with respect to elementary and secondary schools. However, local food scrap laws applicable to the above-exempted generators will not be preempted.

The law requires large generators of food waste to source separate by January 1, 2021. In other waste management areas, our experience is that the regulations implementing "source separation" will likely require each covered facility to engage in training, recordkeeping, reporting, proper cold storage and source reduction. Our further experience is that "source separation" will likely trigger audits of current practices, leading to the application of and compliance with New York State Department of Environmental Conservation-approved "best management practices" to reduce the amount of materials in waste streams. While there may be a benefit to the organization from the practice of auditing and the implementation of the best management practices with respect to "shrink control" of the underlying food products, any non-implemented "best management practice" holds the potential to expose the entity to fines and penalties once the agency inevitably invokes its enforcement authority. We, therefore, recommend that, like the reports generated by all other kinds of environmental self-examinations, the results of any food waste audits be reported to legal counsel to invoke privilege and confidentiality to the extent available.

We also surmise that another objective of the source separation requirement will be to ensure that the generators separate out any plastic, silverware, containers, bags, ceramics and glass from the food/food wastes, so that the organic waste stream is in a pure enough form to be used as animal feed or composted.

After source separation and any incidental source reduction has been achieved, each covered facility will be asked to demonstrate to the New York State Department of Environmental Conservation that, "to the maximum extent practicable," it is sending its excess foods to the local food banks/soup kitchens/pantries, and failing that, to animal feedlots.

Often, food generators are reluctant to send still-edible food to either organizations that feed people or businesses that feed animals for fear of liability. However, there is a federal law already on the books which protects a food generator from liability for providing apparently wholesome food to not-for-profits, except to the extent that the generator is grossly negligent. While this law will provide some degree of liability shield to generators of food wastes sent to a food bank, what is really needed is a New York State-based statutory limitation on the liability of generators sending food waste to either food banks or animal feed operations. The Governor's proposal nevertheless does not contain such liability protections.

If any food wastes remain after attempts to donate the waste to charity or for animal feed, the new law will require the generator to send its materials for "industrial use." Examples of industrial use range from fat rendering facilities to Waste Management's processing plant in New York City that creates an organic "slurry" to boost by 50% the efficiency of sewage treatment plant digesters.

If there are no nearby industrial users, we understand that the law will then direct the food waste to be sent for composting. The New York State Department of Environmental Conservation is already in the process of developing performance standards for these composting facilities in its revised Part 361 scheduled for promulgation by September 2017.

Only when all other avenues are foreclosed to the generator may the organic food wastes be sent (as they are now) to a municipal landfill or incinerator.

The law requires compliance within four years. The phase in of the program is to be facilitated by new regulations and guidance to be promulgated by the New York State Department of Environmental Conservation. It is uncertain whether the phasing by the agency will involve step-by-step implementation of the above-described disposal hierarchy, or an industry segment by industry segment application of the entire regulatory scheme. It is likely a combination of both.

One inevitability with any new waste handling program is that there will be additional inspections and fines. Moreover, to some at the New York State Department of Environmental Conservation, the most effective way to garner compliance with a new regulatory system is to levy a headline-grabbing fine against a well-known institution. For example, the need for strict HIPPA compliance came into clearer focus for a large number of health care organizations after a $4,800,000 fine was levied against New York and Presbyterian Hospital and Columbia University in 2014.

If you require further information regarding the information presented in this Legal Alert and its impact on you or your organization, please contact Tom Walsh at 585-295-4414 or


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