CLIENT ADVISORY: COVID-19 Impacts on Solid Waste

FEDERAL UPDATE
The Federal Motor Carrier Safety Administration consolidates all updates regarding its Expanded Emergency Declaration at the following website: https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19.
 
The Expanded Emergency Declaration, No. 2020-02, which was issued pursuant to 409 C.F.R. § 390.23, covers all 50 states and the District Of Columbia.
 
The Expanded Emergency Declaration “provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for…(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 
The FAQ issued connection with the Expanded Emergency Declaration provides the following clarification:
 
 
Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 

 
MASSACHUSETTS UPDATE
On March 20, 2020, Governor Baker issued a Declaration of Emergency Notice, pursuant to 49 C.F.R. § 390.23 declaring “that an emergency exists pertaining to an essential service, the intrastate pickup of residential and commercial refuse from residences and businesses and the delivery of such refuse to recycling and landfill sites within the Commonwealth of Massachusetts.
 
 

 
From concerns over infectious trash, to an expected shortage of employees, the solid waste industry and regulators are busy developing contingency plans to address possible impacts of COVID-19.
 
 
The industry has historically weathered flu seasons and earlier outbreaks.  Thus, in its March 6 Guidance on Coronavirus (COVID-19) the Solid Waste Association of North America has not recommended any special precautions to protect waste workers from COVID-19.  Nevertheless, the Association recommends that employers and managers review the US Centers for Disease Control and Prevention’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

Similarly, the National Waste and Recycling Association (NWRA)’s March 9th FAQ on 2019 Novel Coronavirus states that “[b]ased on discussions with the CDC, waste from households can be managed as they typically would be for the flu. No special precautions are necessary.” For worker safety the NWRA recommends the typical “general precautionary measures” and references OSHA’s requirement that workers use appropriate engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposure.
 
More recently, OSHA has issued an Alert to Prevent Worker Exposure to Coronavirus (COVID-19) that contains the same precautions we have heard repeatedly on the news and from public officials and a Guidance on Preparing Workplaces for COVID-19 which does not categorize workers in the solid waste industry as either medium or high risk of exposure.
 
Beyond concerns over the trash itself and worker safety, the industry is concerned about the effect of emergency declarations and strict regulations on its ability to operate.  In order to address the foregoing concerns, on March 16, the NWRA sent a request to all states for regulatory flexibility in handling of municipal solid waste, yard waste and recycling. Separately, the NWRA has requested a “Critical Industry” designation from Governor Baker that would exempt the industry from economy wide constraints that the government may promulgate under the Governor’s Declaration of a State of Emergency.
 
Possible employee shortages are the main concern.  A waste handling facility without employees cannot run itself, nor do garbage trucks drive and pick up waste without drivers.  The industry and regulators are anticipating possible facility outages or difficulties moving waste.  In addition to typical curb side collection of commercial and residential waste, the industry in New England relies very heavily upon long-haul trucking and rail of waste to out-of-state landfills such as those in New York, Ohio and Virginia.  Since there is not enough disposal capacity within New England for all of our waste, if transport to these out-of-state landfills is curtailed, waste will back up locally.  The same holds true for facilities within Massachusetts. For example, about 66% (3.2 M tons/yr.) of our municipal solid waste goes to 7 energy from waste facilities.  If one of these facilities cannot operate due to employee absences, the waste will need to be redirected.  Currently there is no flex built into the system to accommodate that additional waste. In order to avoid the specter of waste piling up at the curbside, industry and government officials are discussing various temporary local relief valves, such as lifting facility tonnage limits, to absorb whatever backups may occur
 
Let’s hope that none of these eventualities come to pass and that our social distancing will flatten the curve enough to keep people healthy and get the economy back up and running soon.  Meanwhile, bag your waste and wash your hands!

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