ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD REPEALING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 542.02 (Note), 542.03 (3), (9), (10) (a) to (c) and (13), 542.06 (1), (2) and (3), 542.07 (2) (h) and (i), 542.08, 542.10 (1) (b) 2. (Note), 542.12, 542.14 (1), 544.03 (2), (3) and (12m), 544.05 (1) (a) 2. and 4., 544.08 (3) (c), 544.09 (1) (c) and (2) (c), 544.11 (2) (d), 544.16 (3) (a) 9., 11., 13., 15., 16., 17., 18., 19., 20., (5) (a), (b), (c), (d), (e), (f), (g), Table 1 and (Note); to amend NR 500.03 (190), 502.07 (2f) and (7) (s), 542.01, 542.02, 542.03 (8) and (10), 542.05 (1) (intro.), (e) (intro.), (g), (j) 2., (2) (intro.), (b), (g) (intro.) and 1., 542.06 (intro.), 542.07 (1), (2) (intro.), (a) and (d) 1., 542.10 (1) (a) (intro.) and (2), 542.14 (3) and (5), 544.03 (6m), (8m), (13), (21), (22), (27m), (33), (38), (39), and (39g), 544.04 (7) and (9g), 544.05 (1) (intro.), (3) (a), (b) and (Note), 544.06 (1) (Note), (2) (a), (b) 1., 2., 3., (c) 1., 2. and (d), 544.07, 544.08 (2) (c), (d), (g), (j), (k) and (3) (f), 544.09 (1) (intro.), 544.10 (1), (2), (a), (b), (c), (d), (f), (h), (i) and (j), 544.11 (2) (a), (b) and (c), 544.12 (1) and (2), 544.13 (2), 544.14 (2) (intro.), (a) and (4), 544.16 (1) (a), (b), (2) (a), (b), (3) (title), (a) (intro.), 1., 3., 4., 5., 6., 7., 8., 10., 12., 14., (4) (a), (b), (c), (d), (5) (intro.), (6), (8) (intro.), (c) and (d); to repeal and recreate NR 502.05 (3) (g), 502.06 (4) (er), 502.08 (2) (b), 542.04, 542.09, 542.13, 544.04 (1), 544.05 (1) (b) and (c); and to create NR 500.03 (107m), (198m) and (238m), 502.05 (3) (j) 8., 502.06 (4) (ew) and (i), 502.07 (7) (t), 542.03 (5m) and (8m), 542.05 (2) (i), 544.02 (3), 544.05 (1) (d), 544.06 (2) (b) 1. a., b., c., 544.08 (3) (f) (Note), 544.09 (2) (e), 544.10 (2) (bm), (cm), (k) and (L), 544.11 (2) (e), 544.14 (2) (a) (Note), 544.16 (1) (d), (Note), (e), (f), (3) (a) 21., 22., 23., (4) (bg), (br), (e), (f), (g), (h), (i), (9) and (10) relating to statewide materials recycling and effective recycling programs and affecting small business. |
WA-13-21
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority: Section 227.11 (a) (intro.), Stats., provides that a state agency “may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute,” subject to certain restrictions. Section 287.03, Stats., directs the department to promulgate rules necessary to implement ch. 287, Stats., related to solid waste reduction, recovery, and recycling. Section 289.06 (1), Stats., directs the department to promulgate rules implementing and consistent with ch. 289, Stats., related to solid waste facilities. 4. Related Statutes or Rules: Section 287.05 (intro.) and (1), Stats., state “The following are declared to be policies of the state concerning the reduction of the amount of solid waste generated, the reuse, recycling and composting of solid waste and resource recovery from solid waste: (1) That maximum solid waste reduction, reuse, recycling, composting and resource recovery is in the best interest of the state in order to protect public health, to protect the quality of the natural environment and to conserve resources and energy.”
Chapter NR 520, Wis. Adm. Code, includes criteria and methods for providing proof of owner financial responsibility for closure of a solid waste facility. 5. Plain Language Analysis:
The solid waste reduction, recovery and recycling law was enacted in 1990 (1989 WI Act 335) to promote the development of waste management structures and encourage reduction, reuse and recycling of Wisconsin’s solid waste. The law bans disposal and incineration of certain materials and delegates responsibility to local government responsible units for implementing municipal recycling programs to manage the banned materials. The provisions of 1989 WI Act 335 are found at ch. 287, Stats. In 1993, the department promulgated administrative rules necessary to implement ch. 287, Stats., under ch. NR 544, Wis. Adm. Code. The general objectives of this proposed rule are to correct, clarify, and update effective recycling program criteria throughout ch. NR 544, Wis. Adm. Code, as well as amend sections of other code chapters related to waste reduction, recovery, and recycling efforts. This rule also makes updates to definitions; changes to storage, collection and transportation, or processing requirements for recyclable materials; minor modifications or corrections to code based on previous statutory changes; and updates to recycling grants authorized under statutes. NR 500 – General Solid Waste Management Requirements
— Adds or clarifies definitions of “incidental,” “recyclable materials,” “responsible unit” and “transferring of solid waste.”
— Clarifies that glass used as an aggregate replacement is for “clean container” glass.
NR 502 – Solid Waste Facilities (Non-landfill)
— Clarifies definitions of a materials recovery facility and exempt recycling transfer station.
— Requires noncontainerized storage facilities and recycling transfer facilities to keep recyclable materials separate from solid waste and maintain the cleanliness of the materials for recycling purposes.
— Prohibits outdoor transfer of unbaled paper, plastic or other easily airborne material unless contained to prevent litter.
— Requires containers used for the collection of recyclable materials to be clearly labeled.
— Requires collection and transportation service providers that haul recyclables to provide residential recycling tonnage data to responsible units (local governments) by February 1 each year. Data shall include the name of the materials recovery facility(ies) used to process the materials and also be provided to the department upon request.
—Requires collection and transportation service providers to also notify responsible units when a new materials recovery facility is used.
NR 542 – Recycling Grants to Responsible Units
—Adds or clarifies definitions of “multiple-family dwelling,” “prevailing market rate,” “recyclable materials” and “recycling program costs.” Deletes definitions no longer used in the chapter.
— Deletes language referring to pre-2000 recycling grant eligibility and clarifies that eligible responsible units are those with effective recycling programs.
— Clarifies eligible and ineligible grant expenses.
— Deletes grant distribution language, which is no longer applicable.
— Corrects the grant application deadline to coincide with statute.
— Deletes grant assistance condition, grant payment, and dispute resolution language that is no longer applicable or needed in code.
— Specifies that grant payments shall be made by no later than June 1 of the year the grant is made.
— Replaces termination of awards section with repayment of awards (as the effect of a termination of a grant award is its repayment).
NR 544 – Effective Recycling Programs
— Adds materials recovery facilities to the Applicability section. Clarifies definitions of “designated agent,” “floodplain,” “multiple-family dwelling,” “non-residential facilities and properties,” “office paper,” “plastic container,” “recyclable materials,” “rural municipality,” “single commodity materials recovery facility,” and “single-stream collection.” Deletes definitions no longer used in the chapter.
— Specifies that education provided by responsible units under an effective recycling program must be reviewed for accuracy and distributed annually and include information on electronics recycling, batteries, and food waste and composting information.
— Clarifies that responsible units may provide for the collection of tires by providing information on where and how to recycle them.
—Deletes the prohibition on compaction of glass containers with newspaper.
— Deletes the requirement for responsible units to meet a specified pounds per person collection standard and its associated numeric values in Table 1.
— Specifies that a recycling collection system for urban municipalities (those with a population greater than 5,000) shall be curbside at least monthly or a drop-off used by at least 80% of residents documented by drop-off site monitoring records. If the minimum of monthly curbside is provided (versus the more common method of every other week pick-up), access to a drop-off site for recyclables must also be provided.
—Specifies that a recycling collection system for rural municipalities (those with a population of 5,000 or less) shall provide an adequately sized drop-off site for recyclables, open at least two days a month for five hours a day. Alternatively, a rural municipality may opt to provide curbside collection at least monthly (like an urban municipality). If the minimum of monthly curbside is provided (versus the more common method of every other week pick-up) access to a drop-off site for recyclables, for example in another municipality or at a private location, must also be provided.
— Clarifies that any municipality may opt to direct individual residents to contract directly for collection of recyclable materials to meet the requirements outlined for a collection system.
— Clarifies that the provision of providing adequate recycling services to multiple-family properties must include an equal or greater ratio of recycling containers to trash containers and one of the following: minimum total volume of recycling containers provided is 20 gallons per week per dwelling unit, ratio of trash container volume to recycling container volume is at most 2:1, or an alternative method which does not result in recyclable container overflow between collection.
— Clarifies that non-residential properties must provide adequate recyclable container volume to prevent overflow between collection.
— Reduces tenant notification requirements for multiple-family properties and non-residential facilities.
— Updates responsible unit annual reporting requirements to include a compliance assurance plan, financial information (if a recycling grant is received), and a description of recycling education.
— Clarifies that the department may withhold all or part of the recycling grant or take enforcement action if the department finds a responsible unit has not complied with the conditions of an effective recycling program and ch. NR 544. — Deletes the provision that probation may not exceed one year; clarifies that a responsible unit placed on probation may be required to submit a plan of action to meet program requirements.
— Adjusts for inflation the value of a processed ton of material when used for a variance requested by a responsible unit, from $40 (1989) to $98 (2023) based on the consumer price index inflation calculator from the U.S. Bureau of Labor Statistics at https://data.bls.gov/cgi-bin/cpicalc.pl. NR 544.16 Pertaining to certified materials recovery facilities (MRFs)
— Clarifies that “nuisance-free” and “environmentally sound manner” means where litter, odors, and vectors are controlled.
— Excludes MRFs in their first year of operation from meeting the demonstration of sending off-site 75% of material received each year, and clarifies that material sent off-site should be for acceptable recycling, reuse or disposal.
— Requires that MRFs attain owner financial responsibility (OFR) if expecting to receive over 5,000 tons/year of recyclable materials under normal operations or if the facility has received over 5,000 tons in two of the last three years. A MRF may request the release of OFR if it received less than 5,000 tons in each of the last five years and does not expect to exceed 5,000 tons in the following year. MRFs must attain OFR prior to accepting material from a responsible unit (if a new facility) by July 1 of the calendar year after the MRF accepted over 5,000 tons in two of the last three years, or within a year of the effective date of the rule (existing facilities).
— Establishes a minimum glass recycling rate of 12%, which means the weight of glass sent for recycling must be greater than 12% of the weight of total incoming material. If less, a facility must provide justification or submit a glass recycling rate improvement plan within 60 days. More information on development of this rate is described in 9., below. MRFs often receive broken glass or glass mixed with other material, like food, that render the glass unfit for market as a product. In those cases, glass may be disposed of as a residual or in ways not considered “recycling.” In addition, facilities that receive potentially marketable glass are sometimes not designed or operated to effectively capture all of this material. The minimum glass recycling rate sets a minimum baseline to ensure integrity of glass recycling efforts by facilities.
— Establishes a maximum residual rate of 20% for all materials processed by the facility. MRFs often receive non-recyclable materials (like trash, food, non-acceptable plastics, etc.) that are not marketable, or facilities are sometimes not designed or operated to effectively recover all recyclable material. If the residual rate is greater than 20%, a facility must provide justification or submit a residual rate improvement plan within 60 days.
— Creates a requirement for an application for self-certification (intended to differentiate between facility operations and annual tonnage data collection). MRFs are not required to be licensed by the department, but they must submit a self-certification report. The initial application must be submitted within 180 days of the effective date of the rule or within 30 days of most changes in operation. Facility contact information changes must also be submitted to the department within 30 days but do not require the submittal of a new application. The rule clarifies and specifies information to be collected in an application versus the annual self-certification renewal and report.
— Requires that MRFs provide contracted responsible units and collection and transportation service providers with information on acceptable materials.
— Requires that unbaled, easily wind-blown material (paper, plastic) be contained to prevent litter at the facility property.
— Requires the development of short-term (less than 48 hours) and long-term (48 hours or more) contingency plans that a facility will implement in the event of an unexpected shutdown.
— Requires educational material produced by the MRF to identify that it is specific for that facility. A MRF must review educational material within 60 days of a request from a responsible unit contracted with that facility.
— Specifies that materials delivered directly from a responsible unit be inventoried as residential material on the annual self-certification report submitted to the department.
— Adds collection and transportation service providers to existing entities (responsible units and the department) that must be notified of change of service requirements. Notification is required as soon as practicable after unanticipated interruption of service of 48 hours or more or one that results in change of materials acceptance.
— Codifies guidance and existing practices related to beneficial reuse of glass and for facilities requesting residual disposal fee exemptions at landfills.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The federal government has mostly relied on local and state governments to enact waste management and recycling laws. Federal legislation proposals to mandate minimum national recycling rates have not passed. In the 1970s, the federal Resource Conservation and Recovery Act (RCRA) abolished open dumps and required the Environmental Protection Agency (EPA) to create guidelines for solid waste disposal and regulations for hazardous waste management but did not directly address recycling.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
The department held a virtual preliminary public hearing on the statement of scope on June 6, 2022. Nineteen members of the public attended the hearing, 18 attending for information only and one in support. One member of the public provided testimony on behalf of the Associated Recyclers of Wisconsin (AROW) in support of the scope statement, noting that administrative code should be updated to adapt to changing markets, products, and staffing that has occurred in the recycling industry over time.
