Hofstra Environmental Law Digest, Fall 1990
New York City's Recycling Law:
Reality Meets Idealism One Year Later
By Corey B. Bearak*
I. Introduction: Local Government Making A Difference For Our Environment
This article examines the effectiveness of local legislation in improving our environment. It will look at New York City's experience in developing and implementing a comprehensive law to improve the management of solid waste.
Legislation enacted or proposed in our nation's largest urban center already covers a wide range of environmental issues. In addition to its recycling law,[1] innovative laws protect workers and the public from hazardous chemicals and regulate the disposal of asbestos.[2] Other laws ban apartment house incinerators and regulate infectious (medical) waste.[3] Proposed laws would safeguard the city's drinking and coastal waters,[4] improve air quality,[5] protect against the dangers of in place asbestos containing materials[6] and decrease disposable solid waste[6]
Any law that impacts trash disposal affects almost every local resident and visitor, too. The size, diversity and complexity of New York City make a look at its recycling law a useful guide for other municipalities.
II. The New York City Recycling Law: A History
On July 13, 1989, the New York City Recycling Law took effect.[8] Local Law 19 of 1989 represented the culmination of a multi year effort to develop an integrated solid waste disposal system for New York City. Until the law's enactment, New Yor City lacked a realistic strategy to address its disposal of garbage.
New York was not alone in facing a garbage crisis. In 1987, the piling up of garbage in northern New Jersey and the unsuccessful barging of Islip, Long Island waste as far as Mexico and Belize dramatized the trash disposal crisis facing our nation. New York City faced the depletion of its landfill space by 1997.[9]
In 1987, New York City's strategy, approved three years before, included plans to build massive resource recovery incinerators as well as a goal to achieve 15 percent recycling in 1991.[10] Despite the recycling goal, the Koch administration focused almost solely on developing waste to energy incinerators. It failed to commit to an integrated solid waste disposal strategy.
A reliance on resource recovery would not meet the need. In 1988, the city disposed of approximately 28,000 tons of trash per day.[11] The City continues to dump most of its trash at its Fresh Kills, Staten Island Landfill. Its Edgemere landfill, slated to be closed in 1991 (under a consent decree with the state), received about 1,400 tons daily about five percent of the trash the city must dispose in 1988. In the same year, the City burned about 1,500 tons per day in its three existing incinerators. The City then dumps the incinerator ash at Fresh Kills.[12]
With five resource recovery plants on line and operating at full capacity, the City could only expect to burn 11,500 tons per day. In addition, those plants would produce about 1,500 to 3,000 tons of potentially toxic ash for disposal each day. In the absence of other initiatives, more than half the waste would continue to disposed of in the city's dwindling landfill.
Without recycling, according to an unpublished 1988 Sanitation Department report, the City would have to pay at least $120 per ton to ship garbage out of state.[13] It placed virtually no emphasis on alternative strategies such as waste reduction and recycling. The Sanitation Department had a Deputy Commissioner for Resource Recovery. No Recycling office at any level existed in the Department in 1987.
As might be expected, the City's progress on recycling was at best modest. The Sanitation Department planned to introduce a curbside newspaper recycling pilot program in each borough by the end of the following fiscal year.[14] The only existing program was a pilot apartment house containerized program in the Borough of Manhattan. No plans to expand that pilot existed.
The inability of the City's executive branch to move its resource recovery program made it imperative that recycling and waste reduction measures succeed. This offered an opportunity for the City Council to seize the initiative.
The Council introduced its recycling bill, Int. No. 952, on December 8, 1987 after over a year of drafting and fine tuning. Its sponsors cited the existence of recycling laws in Philadelphia[15] and New Jersey.[16] The Koch administration's recycling efforts remained less than one percent of the waste stream.
The administration's reluctance to introduce recycling in New York, perhaps, stemmed from the city's urban complexity, its size and a sense that many New Yorkers viewed their trash collection as a "free" service.
Much of the city consists of high rise apartment and office buildings. Its concentration of high density developments posed impediments to efforts to develop recycling on any significant scale. The drafters of Int. No. 952 recognized that New York City's diversity would require flexibility in the implementation of recycling measures. Low density neighborhoods could receive curbside collection; high density areas might require containerized collection. Businesses which receive private collection would need another set of rules.[17]
New York City's sheer size also posed logistical problems in implementing any full scale program. Personnel had to be trained, equipment purchased, residents educated, routes designed and markets for recyclables had to be located. This required that recycling be introduced incrementally on an area by area basis. To succeed, an incremental approach would require firm timetables and achievable goals.
Unlike their counterparts in many other localities, New York City residents do not pay directly for garbage collection. New Yorkers would only benefit indirectly by their participation in recycling. Where no direct benefit accrues to the recycler, mandatory compliance proves effective over voluntary participation. A 1979 U.S. Environmental Protection Agency study found that 50 percent of mandatory programs had participation rates equal to or exceeding 50 percent.[18] The National Solid Waste Management Association, in a study of 26 voluntary and 13 mandatory programs, found average voluntary participation to be 34 percent and average mandatory participation to be 55 percent.[19] The recycling program proposed for New York City would need to be mandatory to achieve any significant level of recycling.
The Council cited models for programs, of varying scale, found throughout the United States. San Francisco has recycled 25 percent of its trash through a combination of curbside recycling and easily accessible dropoff centers; it seeks to achieve 35 percent recycling by 1995. Seattle recycles about 25 to 30 percent and aims for 40 percent by 1997. San Jose, California runs a curbside source separation program covering 170,000 homes. Philadelphia's 1988 law requires 50 percent recycling within four years[20]
In 1983, Oregon enacted legislation requiring large cities to provide convenient drop off centers and to offer curbside collection at least once per month. Rhode Island's mandatory source separation program targets 15 percent recycling by 1992, 20 percent by 2000 and 25 percent by 2005. New Jersey's 1987 law required municipalities to achieve 25 percent recycling in 1989. Other states enacting legislation included Connecticut and Florida.[21]
Examples of recycling abroad include Denmark, which recycles almost of all of its bottles and glass and about 90 percent of its cardboard. Japan recycles at about 50 percent.[22] A City Council "working paper" reported that 17 [West] German cities compost source separated organic waste.[23]
The legislation evolved over six hearings, including much testimony from public officials, the Sanitation Department, environmental and business groups, recycling industries, private carters, property owners and community organizations. Int. No. 952 A resulted from the first series of hearings in the first four months of 1988. It was further refined during hearings in September 1988 and the following January and March when the Council's Environmental Protection Committee approved the bill for consideration by the entire Council.[24]
With one amendment on the floor, Int. No. 952 B passed the Council, 29 1, on March 28, 1989. It was signed into law on April 14. It marked the first time the Council made a determination of environmental significance, subject to the State Environmental Quality Review Act, when it passage of a local law. The Council adopted a determination of negative environmental significance. A discussion of the law's major provisions follows.
III. The New York City Recycling Law/ Local Law 19
Local Law 19 of 1989 mandates that New York City reduce and/ or recycle 25 percent of all non hazardous solid waste, measured in tonnage, by December 31, 1993 This includes recycled commercial waste, city collected waste, city agency waste, yard waste, Christmas trees, batteries, tires, Bottle Bill[25] material, waste reduction measures, and waste exported for recycling.[26]
The law also requires, within the same five years, the recycling and/ or reduction of at least 25 percent of the waste collected by the city's Department of Sanitation and accepted free at the city's landfill. Further, Local Law 19 anticipates the need to achieve the state's goal of 40 percent recycling and eight to ten percent waste reduction by 1997. It requires the Commissioner of Sanitation to prepare and submit "a detailed and comprehensive plan" within four years of its effective date.[27] The law specifically excludes from counting towards its requirements any reduction or recycling of resource recovery plant ash residue or sludge from air or water treatment facilities.[28]
Although mandatory, the recycling law provides great flexibility in its implementation. It leaves to the Department of Sanitation the discretion to determine at least six materials (including yardwaste) which shall be designated for residential source separation and recycling.[29] To the extent the Department meets the law's recycling requirements, the six materials can be phased in over 4.5 years.[13] Currently, residential households recycle one or more of the following: newspapers, metal cans and glass bottles, plastic containers, magazines and corrugated cardboard. City agencies and institutions, such as voluntary hospitals and private colleges, will recycle these six materials, bulk items, yard waste and office paper.[31]
One third of all households must be source separating within one year; two thirds within three years; all within 4.5 years.[32] Also, the law imposes specific requirements on owners or persons in charge of buildings with nine or more units. They must 1) provide an area and containers for recyclables; 2) notify tenants of the law's requirements; and 3) remove any trash contaminating the containers of recyclable materials.[33] The law also mandates, within 18 months of its enactment date, the adoption and implementation of residential recycling regulations for those buildings which do not meet reasonable expectations for recycling. The regulations must provide for the use of transparent bags for the disposal of non recyclable materials and permits random inspections (upon the request of the building owner or person and charge and the commissioner's determination of compliance with the recycling law by such owner or person in charge) to facilitate compliance by building tenants.[34]
Within nine months of its effective date, Local Law 19 requires the Sanitation Department to adopt and implement regulations that designate recyclable materials constituting one half of all waste collected by private (commercial) carters. The law requires source separation of recyclables unless the carter provides post collection
recycling.[35]
All city agencies must recycle designated materials with six months.[36] The law also requires the city to remove any discrimination against products with recycled content and to encourage the purchase of products made from recycled materials.[37] It authorizes a ten percent price preference for the purchase of recycled paper[38] and a five percent price preference for all other products.[39] The City's Department of General Services must promulgate regulations by January 1, 1991 to establish minimum levels of secondary content for non paper products.[40]
The recycling law requires, within 18 months, source separating and composting of yard waste collected from October 15 through November 30; within 36 months this program expands to March 1 through July 31 and September 1 through November 30.[41] During these periods, city landfills (except for use as cover) and incinerators cannot accept yardwaste for disposal. City agencies must give preference to the use of compost materials derived from the city's solid waste in land maintenance. Within 18 months, the Department must provide for the collection of Christmas trees during the first three weeks of January each year. It also must provide for the recycling or composting of any trees collected or received for disposal.[42]
In the absence of state or federal programs to collect or impose deposits on batteries and tires within 18 months, a city wide program shall be established and implemented. In such an event, the commissioner of sanitation is empowered to establish deposit charges for batteries and tires.[43]
The law also requires the establishment of at least ten recycling centers, including one buy back center in each of the city's five boroughs, within 18 months. Existing and private centers can be used to meet this requirement. To the extent these recycling centers meet the current need for processing, fewer centers can be established.[44]
Failure to abide by the recycling law and any regulations promulgated pursuant to it will result in a civil penalty of $25 for the first violation, $50 for the second violation and $100 for the third and each subsequent violation. A person committing a fourth and any subsequent violation within a six month period shall be classified as a persistent violator. Such person shall be liable for a $500 fine for each violation. No more than 20 violations can be issued on a per bag or container basis during any 24 hour period.[45]. This latter provision was a concession to building owners who expressed concern at City Council hearings and in private lobbying.
Education and community involvement remain important components of any viable waste reduction strategy. The law recognizes these needs. Section 16 315 requires education programs. Its implementation has included print ads, bulk mailings, speakers at meetings and news releases. Section 16 317 creates citizens' solid waste advisory boards in each borough to review the Department's annual recycling plan.[46] Section 16 319 creates a citywide recycling advisory board to meet at least four times each year to review and make recommendations on the Sanitation Department's recycling plan.[47]
The success of the city's recycling effort ultimately lies, not in its ability to collect recyclables, but in marketing its recyclables. Section 16 322's procurement provisions offer a basis for establishing the city as buyer of materials processed from its recyclables. To the extent the city guarantees a demand for products reprocessed from recyclables, it enhances it ability to encourage processers to take its recyclables. The law leaves to the Department of Sanitation the responsibility for developing a marketing strategy. The Departments of Finance and Generals Services and the Office of Economic Development have important support roles in market development. Finance is charged with looking at tax incentives. OED is charged with helping to develop markets. General Services is charged with improving the city's procurement of recyclables.[48]
V. Local Law 19's Administration: Implementing Recycling
The Department of Sanitation, in its preliminary recycling plan issued, in October 1990, pursuant to Local Law 19, noted several positive developments: 1) curbside source separation in 27 of 59 community districts, covering more than one third of city households; other residential programs reach an additional 14 districts; 2) a detailed analysis of the city's solid waste stream; 3) an intermediate processing center (IPC) in East Harlem processed an average of 100 tons per day and reducing processing residue from 20 to five percent at the end of the prior fiscal year (ended June 30, 1990); 4) the letting of two contracts for IPCs, and the development of a 300 tons per day IPC, the conversion of the former Hamilton Avenue (Brooklyn) incinerator to a 50 tons per day IPC; 5) the approval of contracts for four privately operated buy back centers; three facilities will be operational soon; 6) a successful pilot leaf composting study at the Edgemere, Queens landfill and the construction of the city's first full scale leaf and yardwaste composting facility, to begin operations this fall, at the Fresh Kills landfill; and 7) the completion of preliminary end use market surveys for 15 secondary materials.[49]
Sanitation Commissioner Steven M. Polan, in this plan, indicated a number of major concerns: 1) the program has exceeded its initial $65 per ton estimate for collection and processing; full implementation is now estimated to cost from $198 to $273 per ton; 2) a focus on meeting first year recycling tonnage requirements limited attention to post collection processing and marketing and future program design; 3) insufficient diversion of targeted recyclables in neighborhoods receiving curbside collection; 4) a possibility that targeted recyclables alone will not provide a sufficient yield to achieve third year recycling requirements; 5) an insufficient infrastructure for separating and sorting recyclables (processing capacity); 6) "[u]nanticipated institutional barriers" (diverse building types, management, trash disposal practices, labor issues, space restraints and employee education needs) to tapping substantial tonnage of recyclables; insufficient data to make judgments concerning requirements for private carter recycling; 7) limited opportunities to quickly develop markets for recyclables; and 8) current inability of city to promote legislation to limit wasteful practices.[50]
Much of the city's problems in implementing recycling relate to the failure of the Sanitation Department and the city's prior administration to anticipate Local Law 19's enactment. In response to Commissioner Polan's concerns that the law mandates more than the Department can reasonably implement, City Councilman Sheldon S. Leffler, the bill's principal author, stated: "The real problem has been insufficient planning and insufficient attention."[51]
In the spring of 1988, enactment of a recycling law was just a matter of negotiation. The administration sought to promote its weak, non mandatory proposal, Int. No. 1040. A large majority of the Council supported Int. No. 952, which eventually was enacted as Int. No. 952 B. The Council's leadership left negotiations to its Committee on Environmental Protection. The need to give a fair hearing, if not any reasonable accommodation, to the varied parties interested in a recycling law also contributed to the its delay.
The Department ought to have used that lag time to develop and fine tune possible programs for collecting, processing and marketing recyclables. The agency's own white paper, issued in January 1988, its prior studies, proposals by environmental organizations, programs in place in other jurisdictions and an Environmental Protection Committee working paper all provided sufficient bases for adequate planning in advance of Local Law 19's enactment.[52]
Some Local Law 19 mandates remain to be implemented or could use further refinement. As this article is being written, only draft rules cover private carter waste. The private carter regulations, as currently drafted, fail to provide for full recycling of construction waste.[53]
Rules covering institutions and municipal agencies include no requirement for Sanitation Department assistance in the development and implementation of recycling plans for individual institutions. The Department "expects" to offer training.[54] "This remains a glaring weakness," according to Councilman Leffler.[55]
The Department has also indicated plans to seek leave from the law's requirements to implement recycling of tires and batteries.[56] A recent State law only covers motor vehicle batteries.[57]
The City's Department of General Services(DGS), pursuant to Local Law 19, reported on its recycling efforts.[58] The agency reported that 43 percent of the dollar value of contracts for paper products were for products with recycled content. It also awarded a contract for re refined oils, purchased containers with 40 percent recycled content for the recycling program and added contract language to encourage vendors to bid products with recycled content.
DGS appears on schedule to meet Local Law 19's minimum requirements. It must revise product specifications to remove discriminatory references against products with recycled content. It must also set values for minimum recycled content for products to qualify for a price preference.
The agency could and should be doing more now. It must aggressively seek vendors of products with recycled contents. Rather than encourage the use of recycled products by municipal agencies, it ought to seek either a mayoral executive order or Council legislation to require the use of such products.
Efforts at waste reduction and reuse also lag. City proposals to authorize its enforcement of the Bottle Bill have failed to meet approval in Albany. The State's Department of Environmental Protection lacks the personnel and resources to provide the enforcement needed in New York City.
To further reduce solid waste, pending City Council legislation would address the use of polystyrene ("Styrofoam") containers and non recyclable/ non compostable packaging.
Int. No. 323 A would ban the use of polystyrene foam packaging which do not meet established recycling goals. Currently in negotiation, the bill's recycling requirements may be phased in. Sanitation Commissioner Steven M. Polan recently suggested a ten percent recycling rate for polystyrene foam increased by five percent annually until 60 percent recycling is achieved.[59] The bill's sponsor, Councilman Sheldon S. Leffler, believes the prospect for enactment remains good.[60] A companion measure, Councilman Leffler's Int. No. 228, would ban non compostable and non recyclable packaging of any kind.
V. Assessing Local Law 19: The Promise of Recycling
The key measures of the success of recycling in New York City are the diversion of tonnage dumped in the City's two landfills and the ability to effectively market collected recyclables as raw materials.
The program exceeded first year tonnage goals but Commissioner Polan expresses concern that the Department can achieve future tonnage goals. Improved education and outreach, better planning for curbside collection routes and improved efforts to expand recycling in institutions and by agencies remain for implementation.
To the extent that the cost of collecting and re processing certain recyclables exceeds the cost of manufacturing and traditional disposal, marketing must be done to expand demand.[61]
The marketing component has lagged but the agency is moving ahead with plans for a Solid Waste Management Policy Office. The office, headed by a Deputy Commissioner, will be charged with developing a comprehensive marketing strategy. Interagency coordination and private sector partnerships will be the key components of this effort.[62]
The real test of the success of this recycling law will be determined within the coming years, as new programs, based on the law, are implemented. As discussed above, ample models for success exist. Also, as indicated above, ample opportunity exists to build on the current programs. New York City must allocate the resources necessary to achieve Local Law 19's goals.
New York City has yet to fully implement recycling. If it fails, it likely faces exorbitant charges for exporting its garbage. The resource recovery program, which poses environmental concerns, remains several years away at best. A well run recycling program remains environmentally safe and more cost effective when compared to the marginal costs of alternative disposal technologies. "The more New Yorkers reduce and recycle their trash, the more cost effective recycling becomes when compared to the marginal cost of shipping garbage out of state and incineration, which requires the disposal of ash and adherence to strict environmental standards."[63]
Most significantly, the city's recycling program represents the ultimate test for "green" policies of environmental advocacy. If proven successful, it will demonstrate whether "green" policies can address, on a grand scale, the large problem of disposing trash in an industrial society.
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*Mr. Bearak, Hofstra B.A. '77, J.D. '81, serves as Counsel/Chief of Staff to New York City Councilman Sheldon S. Leffler. The author thanks Mr. Leffler for access to his files and providing Mr. Bearak the opportunity to work on environmental legislation, Arthur Nitzburg and Anne LoCascia, Mr. Leffler's legislative assistant for environmental affairs, for their advice and comments, and Louis Confino for technical assistance in getting this article to print.
ENDNOTES:
1. "The New York City Recycling Law," Local Law 19 of 1989.
2. The "Spill Bill", Local Law 26 of 1987 and "The Community Right to Know Law," Local Law of 1988. Local Law 76 of 1985 as amended by Local Law 80 of 1986.
3. Local Laws 39 of 1989 and 75 of 1989 (medical waste).
4. Int. No. 538, the proposed New York City Clean Water Law.
5. Int. No. 227 A, to mandate the use of alternative fuel vehicles.
6. Int. No. 453, in relation to the control of in place asbestos.
7. Int. Nos. 323, to ban non recyclable polystyrene foam packaging, and 228, to ban non recyclable and non compostable packaging.
8. Local Law 19 became effective 90 days after it was signed into law by then Mayor Edward I. Koch on April 14, 1990. It was introduced into the City Council in December, 1987.
9. The February and September 1987 Mayor's Management Report is authority for landfill space depleted in 1987).
10. Board of Estimate Resolution 61, December 20, 1984 set a goal of recycling 2,600 tons per day. The board, now extinct, shared budget powers with the City Council, approved major contracts and had final power to approve land use, zoning and siting issues. Resolution 61 was passed as part of a compromise to secure the board's approval for a Koch administration plan to build eight garbage to energy incinerators, at least one in each of the five boroughs. To date, only one, at the Brooklyn Navy Yard plant, has been sited.
11. Mayor's Management Report, September 15, 1988.
12. Mayor's Management Report, September 15, 1988.
13. "Recycling Proposal Costs"
14. New York City's fiscal year runs on a July 1 through June 30 basis. Fiscal Year 1987, for example, would run July 1, 1986 through June 30, 1987.
15. It requires 25 percent recycling after two years; 35 percent recycling in three year; and 50 percent recycling in four years.
16. Approved April 20, 1987, it required 15 percent recycling after one year and 25 percent after two years.
17. Local Law 19 of 1989 require the Department of Sanitation to promulgate regulations governing residential recycling, institutional and city agency recycling and private carter collected trash.
18. cited in SEQRA Negative Declaration: Notice of Determination of Non significance: The New York City Recycling Law as printed in City Council minutes for March 28, 1989.
19. Ibid., citing Coming Full Circle: Successful Recycling Today, by Nevin Cohen, Michael Herz and J. Ruston (Environmental Defense Fund, 1988).
20. Ibid. See also "White Paper: New York City Recycling Strategy", New York City Department of Sanitation, January 1988.
21. Ibid.
22. Ibid., citing Garbage Management in Japan: Leading the Way, by Allen Hershkowitz and E. Salerni (NY: INFORM, 1987). Mr. Hershkovitz testified at several Council hearings on the recycling bill.
23. "Solving The Crisis: Programs to Achieve Int. No. 952 A Recycling Levels", issued by City Council Environmental Protection Committee Chair Sheldon S. Leffler (October 20, 1988).
24. The committee approved the bill, 7 0, on March 13, 1989.
25. New York State Returnable Container Act (need to cite NYS law sec.).
26. New York Administrative Code sec. 16 304.
27. NYC Ad. Code sec. 16 316b.
28. NYC Ad. Code sec. 16 304.
29. NYC Ad. Code sec. 16 305a.
30. NYC Ad. Code sec. 16 305c.
31. See Department of Sanitation recycling regulations for City agencies and institutions.
32. NYC Ad. Code sec. 305d.
33. NYC Ad. Code sec. 16 305 f(1), (2) and (3).
34. NYC Ad. Code sec. 16 305g.
35. NYC Ad. Code sec. 16 306.
36. NYC Ad. Code sec. 16 307.
37. NYC Ad. Code sec. 16 322a.
38. NYC Ad. Code sec. 16 322b.
39. NYC Ad. Code sec. 16 322c.
40. NYC Ad. Code sec. 16 322c.
41. NYC Ad. Code sec. 16 308.
42. NYC Ad. Code sec. 16 309.
43. NYC Ad. Code sec. 16 310.
44. NYC Ad. Code sec. 16 311.
45. NYC Ad. Code sec. 16 323a.
46. NYC Ad. Code sec. 16 318.
47. NYC Ad. Code sec. 16 320.
48. NYC Ad. Code sec. 16 313 and sec. 16 316a(3).
49. Preliminary Recycling Plan Fiscal Year 1991, Department of Sanitation, Office of Operations Planning, October 9, 1990, introductory letter by Commissioner Steven M. Polan.
50. Ibid
51. Interview with Allan Gold, New York Times, October 12, 1990, p. B6.
52. See Sanitation Department white paper, Environmental Protection Committee working paper.
53. Analysis prepared for Councilman Leffler (by CB).
54. Then Deputy Sanitation Commissioner for Legal Affairs Marlene Gold in a May 17, 1990 letter to Councilman Leffler
55. Councilman Leffler, in comments on the City Agency/Institutional Recycling Regulations,letter to Marlene Gold, April 20, 1990.
56. Preliminary Recycling Plan.
57. Chapter 152 of the Laws of 1990.
58. Recycled Goods Procurement Program, NYC Department of General Services, October 1990.
59. Letter, dated October 12, 1990 from Commissioner Polan to Environmental Protection Committee Chair Enoch Williams.
60. Conversation with Councilman Leffler.
61. Recycling becomes economical when the cost of collection and re processing equals the fair market value of the material plus the marginal disposal cost. Thus, high marginal disposal costs justify either a government subsidy and/ or price preferences. It also justifies a higher collection cost for recycling than regular collection.
62. October 22, 1990 conversation with Commissioner Polan.
63. Statement by Councilman Leffler, November 1, 1990, at kick off of recycling program in Community District 13 (eastern Queens).