— 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— Deletes grant distribution language, which is no longer applicable.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— Deletes grant assistance condition, grant payment, and dispute resolution language that is no longer applicable or needed in code.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.
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.
