How does food waste affect New York and New Jersey? New York State generates 3.9 million tons of food waste every year; while New Jersey estimates that its residents throw out 1.3 million tons. Based on estimates from ReFED, the food wasted in New York and New Jersey has an economic value of more than $10 billion. New York and New Jersey also face significant food insecurity and climate change issues.
To put these numbers in context, can you envision 130 billion meals of food wasted annually in the USA? Or can you visualize 400 pounds of food waste per person per year?
As a result, New Jersey and New York, which do not always see eye to eye, are moving almost in lock step to implement food waste recycling mandates within the next year. These mandates will require certain commercial and institutional enterprises to address food waste through a combination of food donation and recycling.
There are key differences between the mandates in New York and New Jersey; for instance, New York’s mandate will require food donation whenever possible, but New Jersey’s only implicitly incentivizes food donation. However, there also are many similarities between the two mandates; in fact, both mandates apply to large quantity food waste generators (i.e., entities that generate more than a specified amount of food waste), and both apply only if there is an organics recycler with sufficient capacity within 25 miles.
Entities that may be subject to the mandates should begin now to evaluate their compliance obligations, which likely will involve evaluation of waste disposal history and conducting waste audits, reviewing waste disposal arrangement and contracting, establishing partnerships with food rescue organizations and organics recyclers, evaluating the necessary infrastructure and financial investments, and preparing employee and customer training programs.
Additionally, whether or not your entity will be subject to the mandates, there are many reports building the “business case” for voluntary food waste reduction efforts. Did you know that the cost of food waste to the food industry is estimated at about $250 billion per year?
The New York mandate
Timeline. New York’s food waste recycling mandate is scheduled to take effect on Jan. 1, 2022. The New York State Department of Environmental Conservation has proposed (but not yet adopted) regulations to guide the implementation of the mandate. The comment period on these regulations closes April 27, 2021, and the regulations are expected to be adopted in summer/fall 2021.
Waste threshold. New York’s mandate applies to businesses that generate 2 or more tons of food waste per week at a single location. Potentially subject businesses include supermarkets, large foodservice businesses, higher education institutions, hotels, correctional facilities and sports and entertainment venues. It also is important to note that co-located businesses, for example two stores in the same shopping mall, that transport and dispose of food waste together are counted as a single business for purposes of the 2-ton waste threshold.
Food donation and recycling requirement. Businesses that meet the 2-ton per week waste generation threshold are required to donate edible food to the maximum extent practicable. Businesses that meet the threshold and are within 25 miles of an organics recycling facility (or intermediary, such as a regional de-packaging facility) with sufficient capacity will also be required to recycle their food waste. For the sake of clarity, an “organics recycling facility” is a facility that accepts and recycles organic waste, such as food scraps, vegetative and/or yard waste, and other natural materials, while an “intermediary facility” is a facility that receives food waste for aggregation and/or prepackaging before the waste is sent to a recycling facility.
Business notifications. The New York State Department of Environmental Conservation will notify businesses that are required to comply with the mandate by July 1 of each year, and businesses must come into compliance by Dec. 31 of the same year. (NYSDEC has said it will notify generators this year on June 1.) This annual determination by the NYSDEC will be based on proxy calculations (i.e., calculations based on information about the business and not actual waste data), although the agency may use site-specific data if available. If the proxy calculation suggests a business will generate more than 2 tons of food waste per week, a business can use site-specific data to establish that it actually is below the waste threshold and therefore obtain a waiver of the requirements of the mandate, but there are specific procedures that apply to waiver requests. Businesses that may be close to the threshold may want to generate site-specific data now so they are prepared to evaluate whether they actually need to comply with the mandate.