8. Comparison with Similar Rules in Adjacent States:
All states bordering Wisconsin (Illinois, Iowa, Minnesota, and Michigan) as well as Indiana have state laws and requirements for recycling. Of the five, Minnesota’s program has the most in common with the Wisconsin program. Both the Wisconsin and the Minnesota programs comprehensively impact the residential and the non-residential/commercial/institutional sectors throughout the state. Both delegate authority to implement and enforce state recycling requirements to the local level, although the Wisconsin program assigns this authority to the municipal level while Minnesota’s program is delegated to the counties, except for the Minneapolis/St. Paul metro area. Both state programs are also closely monitored, and are supported by state recycling grants.
The Indiana and Iowa recycling programs place a greater emphasis on voluntary localized recycling initiatives and general recycling education. The Illinois program emphasizes the use of economic incentives such as recycling market development and recycled content requirements. Michigan recently undertook a significant recasting of its recycling law and now has a statewide program similar to the Minnesota and Wisconsin comprehensive programs.
Minnesota, Illinois and Iowa do not require owner financial responsibility (OFR) for materials recovery facilities, and Indiana only requires OFR for certain specific recycling operations.
The proposed rule also establishes a minimum glass recycling rate and maximum facility residual rate (unless acceptable justification is provided to the department). Neighboring states do not employ a minimum glass recycling rate; however, Iowa and Michigan recover more container glass because they have container deposit systems. Minnesota indicated their overall glass capture rate was >70%, but this is not calculated the same as the glass recycling rate proposed in the rule.
The proposed rule establishes a maximum overall residual rate of 20% at materials recovery facilities, which means facilities should only be sending a maximum of 20% by weight of all incoming materials for disposal at a landfill. This would include unmarketable recyclable materials and waste. For comparison, Minnesota has a tax incentive for recycling facilities to recycle 85% of material. Iowa requires 75% of material to be recycled to qualify as a “legitimate” recycling operation.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The department inquired about other states’ recycling programs through the Association of State and Territorial Solid Waste Management Officials, State Recycling Leaders group of the national non-profit The Recycling Partnership, and attendees at the national Resource Recycling Conference. The department also solicited feedback in Wisconsin via the department’s Waste and Materials Management Study Group (the program’s stakeholder advisory group), the Wisconsin Integrated Resource Management Conference, the Wisconsin Council on Recycling, the National Waste and Recycling Association Wisconsin Chapter, the Wisconsin Beverage Association and the Wisconsin Counties Solid Waste Management Association. In an effort to fact-check and understand perspectives of regulated entities, the department held targeted feedback sessions for materials recovery facilities and responsible units. All of these efforts were used to inform the regulatory approach and language used.
Adequate recycling services at multi-family dwellings
To assess rule changes related to providing adequate recycling services at multi-family dwellings, the department sought information on multi-family capacity ordinances from around the United States. Example requirements were received from nine localities in Florida, North Carolina, Texas, Colorado, California and Minnesota. Where specified, capacities ranged from 11 gallons to 24 gallons collected per week, with the most common being 20 gallons per week. Rather than placing a single numerical value on multi-family dwelling recycling services, the department decided to provide qualitative criteria for dwelling owners that include: minimum total volume of recycling containers provided (20 gallons per week per dwelling unit), maximum ratio of trash container volume to recycling container volume (2:1), or an alternative method which does not result in recyclable container overflow between collection events.
Owner financial responsibility (OFR) for materials recovery facilities (MRFs)
The department requires licensed solid waste processing facilities in Wisconsin to provide OFR to cover the costs of closure and clean-up should the operator abandon or be unable to properly close the facility. OFR criteria and methods are included in ch. NR 520. MRFs are processing facilities that are exempt from licensing and currently do not have OFR with the department. The rule seeks to align MRFs with other solid waste processing facilities by requiring OFR for MRFs that annually accept more than 5,000 tons of materials. In 2012, a MRF in Brown County went out of business and abandoned the facility. The department sought funds for clean-up of the property from the bankruptcy proceedings (sale of equipment) and cleaned up only a portion of the abandoned material. With no additional funds available to clean up the property, the site stayed dormant with remaining unsorted recyclables, plastic and glass. In 2014, vandals broke into the vacant property and set off fireworks, causing a fire that required crews from several area fire departments to extinguish and temporarily closed State Highway 54 (“Fire at Hobart industrial site closes Wis. 54,” Green Bay Press Gazette, July 9, 2014). Due to the fire and safety concerns, the municipality chose to pay for the balance of the cleanup. The total cost of clean-up exceeded $16,000. The risk of this occurring again at similar facilities led to the proposed rule requirement for OFR at certain MRFs.
There are 42 MRFs currently certified with the department to accept materials from responsible units. Of those, seven are out-of-state facilities not subject to OFR because the state of Wisconsin would not be the location of a potentially abandoned facility. Facilities vary in size from those that process less than 100 tons per year to facilities that process 175,000 tons per year. In an effort to reduce the economic impact on small operations (including municipally owned and small business MRFs), the department proposes to exempt facilities that process 5,000 tons per year or less. This exempts fifty percent of in-state materials recovery facilities (17 of 35) from OFR requirements, reducing the impact on small operations, and eliminates the need to set aside the relatively small amounts for OFR that would be required.
Proposal to require a minimum recycling rate for container glass:
Container glass is one of the materials statutorily banned from landfill disposal or incineration. This proposed rule provides a minimum recycling rate that materials recovery facilities must meet for container glass. A majority of facilities make a good-faith effort to recycle the glass they receive, but the department has worked with facilities that label much of their processed glass as residual material. In response to comments from facility owners that have invested in methods to produce as much recycled glass as possible, this recycling rate was developed so that facilities all have the same standard and are on a more even playing field. The minimum glass recycling rate sets a minimum baseline to ensure integrity of glass recycling efforts by facilities.
Most materials recovery facilities accept recyclables in mixed, or “single-stream,” loads. The total incoming weight of materials is reported to the department on annual self-certification reports, along with the weight of each sorted material that was sent out for recycling or reuse. To calculate a reasonable minimum glass recycling rate goal for glass, the department used the most recent five years of data from each MRF to calculate a general glass recycling percent for each MRF (commercial sources and specialty MRFs were excluded, as were MRFs currently exhibiting poor recovery rates for glass). To account for variations across facility operations, the department multiplied the state average glass recycling rate by 70%. This will allow any materials recovery facility recycling achieving at least 70% of the state average to be in compliance. The calculations resulted in a minimum recycling rate requirement for glass of 12% of the total weight of materials each MRF receives. Facilities not meeting the 12% glass recycling rate can achieve compliance by providing justification to the department for the low rate or by implementing a glass recycling improvement plan.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
In addition to the analyses noted in 9., above, the department utilized data collected annually from responsible units and materials recovery facilities. The department receives annual reports from all responsible units and conducts one-on-one evaluations with at least 50 responsible units each year. In addition, the department receives annual certification reports and has conducted well-attended stakeholder meetings with materials recovery facilities each year since 2018. The data and information received from these regular interactions informed decision making during rule development and to prepare the economic impact report.
The department held three feedback sessions for responsible units and materials recovery facilities in May 2023 to receive feedback on rule concepts including economic impact. It is not known which MRFs are technically considered small businesses, however, their feedback is important. A MRF session was held on May 3 with 34 attendees and approximately 20 facilities represented. Responsible unit sessions were held on May 8 (evening) and May 10 (noon hour). A total of 213 participants attended the two sessions.
The department sought feedback on the proposed rule and economic impact from trade groups who represent some small businesses, including the Associated Recyclers of Wisconsin, Solid Waste Association of North America- Badger Chapter, National Waste and Recycling Association- Badger Chapter, Wisconsin Counties Solid Waste Management Association, and the department’s Waste and Materials Management Study Group, from January 2023 through August 2023. This was done via presentations to leadership boards, committees or membership webinars, as well as via a presentation on rule concepts at the WI Integrated Resource Management Conference (statewide conference of solid waste and recycling professionals and policy makers).
Most proposed rule changes would clarify and update existing code or policy requirements as well as add requirements that ensure universal recycling access and related documentation. Economic benefits, as a result of proposed improvements to effective recycling programs statewide, include preserving natural resources, prolonging landfill space, providing feedstock to businesses and supporting an estimated 20,100 jobs (based on estimates by the Institute for Scrap Recycling Industries [ISRI] Economic Impact Report for Wisconsin, https://www.isri.org/economic-impact). ISRI estimates the total economic benefit of recycling in Wisconsin at over $4.6 billion. 11. Effect on Small Business (initial regulatory flexibility analysis):
The main economic impact of the rule on small businesses is the addition of owner financial responsibility on MRFs. It is difficult to assess the precise number of MRFs that qualify as small businesses. MRFs typically employ office workers, material handlers, heavy equipment operators, maintenance staff, line sorters and managerial positions. In total, these positions likely exceed 25 employees at a substantial number of facilities. The department does not have data on the number of employees at each MRF. Further, the department does not have data on gross annual sales. It is noted that annual sales data will vary considerably year over year as the primary revenue generator for MRFs is the sale of recyclable commodities. Commodity market pricing changes at least monthly (more often for certain materials) and is affected by international and domestic factors, such as other countries buying and selling commodities, transportation challenges in exporting and domestic travel by truck and rail, fuel expenses, labor disputes, paper mill downtime, seasonal fluctuations in supply and demand and other trends. A MRF may exceed gross annual sales of $5,000,000 in one year and fall below this level in the subsequent year due to commodity market values. A MRF may meet the definition of a small business in certain years and not in others.
However, the department is able to confidently state that the number of potential small businesses affected is small. Excluding municipally owned facilities and those that are not independently owned and operated and dominant in their field, the number of material recovery facilities that may qualify as small businesses is not likely to exceed ten.
To reduce the economic impact on small operations (including municipally owned and private small businesses) and in response to comments received from stakeholders, the proposed rule would exempt materials recovery facilities that process 5,000 tons per year or less from the new requirement to attain OFR. This would exempt approximately fifty percent of in-state materials recovery facilities (17 of 35) from OFR requirements, reducing the impact on small businesses yet protecting the state from the most significant financial risks associated with cleaning up large, abandoned processing operations.
The rule will also reduce annual reporting obligations of MRFs (including those that qualify as small businesses) by limiting requests for certain operational information, not likely to change on an annual basis, to a one-time operational self-certification application. This change will reduce the content of the recurring annual self-certification report and reduce the time needed to complete the report.
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Kate Strom Hiorns – WA/5
Department of Natural Resources
101 S. Webster St.
PO Box 7921
Madison, WI 53703
(608) 294-8663
RULE TEXT
Section 1 NR 500.03 (107m) is created to read:
NR 500.03 (107m) “Incidental” means a minor amount occurring without intention.
Section 2 NR 500.03 (190) is amended to read:
Section 3 NR 500.03 (198m) and (238m) are created to read:
NR 500.03 (198m) “Responsible unit” has the meaning specified under s. 287.01 (9), Stats. (238m) “Transferring of solid waste” includes sorting out of incidental amounts of recyclable materials, incidental amounts of materials that pose a potential threat to transfer operations, and incidental amounts of other materials separated for the intent of reuse or recycling.
Section 4 NR 502.05 (3) (g) is repealed and recreated to read:
NR 502.05 (3) (g) A materials recovery facility that maintains materials in marketable condition and that does not have a primary purpose to process waste tires.
Section 5 NR 502.05 (3) (j) 8. is created to read:
NR 502.05 (3) (j) 8. Stored recyclable materials are kept separate from other solid waste and in a manner that maintains the cleanliness of those materials for recycling purposes.
Section 6 NR 502.06 (4) (er) is repealed and recreated to read:
NR 502.06 (4) (er) A service for the collection and transportation of recyclable materials shall do all of the following:
1. By February 1 of each year, provide each responsible unit, including a responsible unit not under direct contract, with the total tonnage amount of recyclable materials specified under s. 287.07 (4), Stats., collected from single family and 2 to 4 unit residences in the responsible unit in the prior year, specifically including all of the following: a. Tonnages of materials at the point of collection and from all areas within the responsible unit service area.
b. Names of the materials recovery facilities that processed the materials.
2. Provide to the department upon request the estimated weights of collected recyclable materials specified under s. 287.07 (4), Stats., and identify the materials recovery facilities that processed these materials. Section 7 NR 502.06 (4) (ew) and (i) are created to read:
NR 502.06 (4) (ew) A service for the collection and transportation of recyclable materials specified under s. 287.07 (4), Stats., shall notify a responsible unit within one week of a change in materials recovery facility used. (i) Containers provided by the service provider for use in a recycling collection system shall be clearly labeled to distinguish their use for recycling purposes only.
Section 8 NR 502.07 (2f) and (7) (s) are amended to read:
NR 502.07 (2f) Exempt recycling transfer facilities. A facility only for the transfer of items under s. 287.07 (4), Stats., shall comply with the operational requirements inunder sub. (7) (a), (c), (d), (i), (k), and(n), (o), (s), and (t) and the performance standards and closure requirements inunder s. NR 502.04 (1) and (3) (a) and (b), and, for new or expanded facilities opening after July 1, 2005, the locational criteria in sub. 3, but is exempt from all other requirements of this chapter. (7) (s) Recyclable material may be Material for recycling that is separated from the incoming waste and stored provided that no fire hazard or nuisance conditions are created shall be managed in a manner to maintain the cleanliness of those materials for recycling purposes and in a manner in which no fire hazard or nuisance condition is created.
