• Meleesa Johnson (Ringle, WI), Director of Marathon County Solid Waste Department (now former director), registered in support and stated that public and solid waste industry engagement throughout the rulemaking process is valuable. Having a broad representation of industry engaged and at the table will result in positive changes to rules. She looks forward to the rule change opportunity. • Craig Summerfield (Madison, WI), Wisconsin Manufacturers and Commerce Director of Environmental and Energy Policy, registered for information only and stated that the subject matter of the scope statement is very broad and could have a large economic impact. The rule should not be overly burdensome and no more restrictive than what is required by federal law, noting that s. 289.05, Stats., states that the department shall promulgate rules necessary to ensure compliance and consistency with the federal Resource Conservation and Recovery Act. Summerfield said the department should consider forming an official technical advisory committee so stakeholders can provide input rather than relying only on the Department’s Waste and Materials Management Study Group, which does not include an industrial landfill operator. • Lynn Morgan (Germantown, WI), WM Public Affairs Manager, registered in support and stated that she supports changes in rule that would allow alternative landfill liner and cover requirements. The rule’s overarching concept should shift from prescriptive engineering requirements to performance-based requirements that allow applicants to bring in various designs that meet performance standards. With the current rulemaking process, it is difficult to conduct rulemaking frequently, which limits opportunity to update code for new technology and practices and requires variances or waivers. It would be a better use of department time to look at whether proposals meet performance standards than prescriptive standards. • Mark Torresani (Madison, WI) registered in support and stated updating landfill location criteria and design standards will require significant technical analysis and will take time. Technical information should be reviewed early in the process so decisions and rules are based on science and technology. Rulemaking should ensure that code still allows variances and room for new technology and improvements. Industry appreciates the opportunity to conduct rulemaking. The public comment period ended on December 22, 2022. The department received two written comments on the proposed statement of scope from Wisconsin Manufacturers and Commerce and WM that reflected their spoken comments above.
8. Comparison with Similar Rules in Adjacent States:
Michigan, Minnesota, Illinois, and Iowa, as well as Wisconsin, all have solid waste management laws and permit programs based on federal law and approved by the U.S. Environmental Protection Agency. The landfill permitting and licensing for each state includes a technical decision-making process focusing on the ability of the proposed landfill design to meet all criteria and standards to protect public health and the environment. Each state regulates the construction, operation and closure of facilities and projects that manage, process and dispose of solid waste.
• The rule proposes to codify existing annual report requirements that are currently specified in each landfill’s plan of operation. Three states—Illinois, Iowa, and Minnesota—require annual reports be submitted highlighting landfill operations from the previous year. • The rule proposes notification deadlines for landfills to send certain information to the department, such as notification of a landfill surface fire within one day, notification of a subsurface fire or elevated temperatures within five days of verification, and notification of a leachate seep or leachate spill outside the limits of waste within one day of discovery. Minnesota requires notification of ‘emergency situations’ such as landfill fires and spills. Michigan requires landfills to develop and maintain an ‘Emergency Response and Remedial Action Plan’ for situations such as landfill fires or spills. • The rule proposes changing the minimum inside diameter of all leachate collection or transfer pipes to be 6 inches, rather than the current 6-inch outside diameter requirement. This provides a minimum numerical standard. The four adjacent states require leachate pipes allow for sufficient flow and access for cleaning, but without a specific diameter. • The proposed rule allows for alternative final cover design proposals for municipal solid waste landfills. The design must meet certain performance-based criteria but is open to new design proposals. All four adjacent states also allow for alternative final cover design proposals. • The proposed rule codifies current practice that the department may approve delaying final cover placement for up to two years after a municipal solid waste landfill attains either final waste grades or maximum interim waste grades. This allows time for potential settling of the waste and adding new waste to the existing landfill footprint. Michigan allows delaying placement of final cover up to one year. • The rule proposes allowing a municipal solid waste landfill to have waste placed temporarily up to 10 percent higher than the approved final waste grades, which assumes that settling will occur before final closure and placement of a final cover. This would allow a landfill to accept additional waste and delay the need for an expansion or a new landfill. No information was found related to this type of allowance in adjacent states. • The proposed rule allows a specific alternative landfill liner design than what is currently required in code for composite lined landfills (composite liners consisting of a 60-mil HDPE geomembrane and four foot thick clay liner are currently required for all municipal solid waste landfills). This is an option, not a requirement, for design of a landfill in areas that may have limitations on obtaining the current minimum four foot clay component for a landfill liner. All four neighboring states have minimum liner design requirements similar to Wisconsin’s and allow for an alternative landfill liner design. •o In Michigan, municipal solid waste landfills must have: (a) a secondary (bottom) composite liner, made of two feet of compacted clay or a manufactured equivalent liner and a 60-mil plastic liner, and (b) a primary (top) composite liner, made of two feet of clay or a manufactured equivalent and a 60-mil synthetic liner. The secondary composite liner is not required if a proposed landfill location already has a natural soil barrier that is demonstrated to provide equal protection (such as 10 feet of natural low-permeability clay) or alternate system that is approved by the director and which prevents the migration of hazardous substances at least as effectively as the other options specified in Michigan rule. Additional leachate collection system components are also required along with a layer, typically two feet of sand, protecting those components. •o In Minnesota, the liner system in combination with the cover system must achieve an overall site efficiency of 98.5 percent collection or rejection of the precipitation that falls on the disposal area and minimize the amount of leachate leaving the site to the soil and groundwater system below the site. The liner must be four feet of natural soil (clay) barrier or a composite liner with two feet of clay and a 60-mil synthetic liner. An alternative liner system design may be used when approved by the MN agency’s commissioner, and is based on the ability of the proposed liner system to control leachate migration, meet performance standards, and protect human health and the environment. •o Illinois requires its landfill liners have at least five feet of clay in a natural soil liner, or three feet of clay and a 60-mil synthetic liner. Alternative liners may be proposed if the landfill operator demonstrates that alternative technology or material provides equivalent or superior performance to the standard requirements, the technology or material has been successfully utilized in at least one application similar to the proposed application, and methods for manufacturing quality control and construction quality control can be implemented. •o Iowa requires liner construction to include two feet of compacted soil with a synthetic liner, and has also approved four foot natural soil (clay) liners. Alternate liner designs may be proposed if evidence is provided that the liner can keep contaminant levels below state standards, as monitored downgradient of waste and within 50 feet of the waste boundary. Iowa code states that it must consider at least the following when approving an alternative liner design: the hydrogeologic characteristics of the facility and surrounding land, the climatic factors of the area, the volume and physical and chemical characteristics of the leachate, the sensitivities and limitations of the modeling demonstrating the applicable point of compliance, and practicable capability of the owner or operator. • The proposed rule adjusts the license fee surcharge paid to the department based upon the number of tons or equivalent volume of solid waste disposed of at each landfill during each quarterly reporting period (currently 15.0 cents/ton): 25.0 cents/ton effective January 1, 2026, 27.0 cents/ton effective January 1, 2031, and 30.0 cents/ton effective January 1, 2036. These ‘tipping fees’ are assessed per ton of waste disposed of in Wisconsin landfills and are the only tipping fees in Administrative Code. All other tipping fees, totaling $13/ton when combined, are designated in statute and cannot be altered by this rule. Revenue from all tipping fees is used at multiple agencies for multiple purposes, including local government recycling grants; programs overseeing air, water, and soil clean up; and general department operations and debt service. The current 15.0 cents/ton license surcharge tipping fee goes directly to the department’s Waste and Materials Management Program to cover a portion of general operations expenditures. The rule also proposes updated plan review fees, most of which had not been changed since 2006, for municipal solid waste landfills and industrial solid waste landfills. Together these fees encompass a portion of funding that supports overall solid waste management work being done by the department; additional funds are provided through legislative appropriations in the biennial budget. It is difficult to compare funding mechanisms state by state because there are several different methods of assessing fees and determining how the revenue is allocated to one or multiple purposes or programs. The information below does not compare apples-to-apples information with the proposed rules, but is provided for general awareness. Each state is likely to have additional revenues not included here that are also applied to its solid waste work.
•o In Michigan, 36 cents is charged for each ton or portion of a ton of solid waste or municipal solid waste incinerator ash that is disposed of in a landfill. Michigan’s governor proposed budget recommendations in early 2024 to increase this solid waste surcharge from $0.36 to $5.00 per ton. This would generate funds for program oversight of contaminated site cleanup, brownfield redevelopment, recycling, and waste management. Other landfill fees found in Michigan law include permit application fees of $3,000 to construct a new landfill, $2,000 to construct a lateral expansion of an existing landfill, and $1,500 for a vertical expansion. •o In Minnesota, waste management services (waste haulers, transfer stations, incinerators, landfills, local governments) collect and submit to the state a solid waste management tax charged for the solid waste services they provide. The tax rate is 9.75 percent of the sales price charged by the service provider for residential waste, and 17 percent for commercial clients. 70 percent of tax collected goes into Minnesota’s Environmental Fund and 30 percent goes into the state general fund. •o Illinois does not charge fees for landfill plan reviews or inspections. The only fees are the tipping fees referenced in the Illinois Environmental Protection Act: if more than 150,000 cubic yards of non-hazardous solid waste is permanently disposed of at a site in a calendar year, the total fee per ton is $2.22. The fees provide funding for the delegated county enforcement program, various solid waste collection programs and the related staff support for each, as well as solid waste permitting programs. •o In Iowa, fees are paid on each ton landfilled. The base fee is $4.25 per ton; however, based on penalties and rewards for the landfill’s waste diversion efforts, each landfill pays slightly more or slightly less than the base amount. Landfill operators remit a portion of the fee to the state each quarter. The remaining funds are to be used for planning and environmental protection activities at the local level. 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Solid waste landfills in Wisconsin are professionally designed, constructed and operated to minimize the risk of pollution. The department regulates landfills to prevent negative impacts to people and the environment. Landfills must collect and treat liquids and gases they generate before releasing them to the environment. Landfill operators must monitor their facilities to detect any contamination, report monitoring data to the department and respond quickly to any problems. Money is set aside during landfill operation to ensure that monitoring and maintenance continue after the landfill closes. Department staff inspect landfills regularly.
This rule’s regulatory approach is to ensure that the above objectives continue to be met.
The changes proposed are based on:
• Subtitle D of the Resource Conservation and Recovery Act (RCRA, 40 CFR Part 258) and chs. 287 and 289, Stats. • Knowledge and experience of department staff, including waste management engineers, hydrogeologists, and policy specialists. • Research conducted by the U.S. Environmental Protection Agency and educational institutions. • Meetings with and comments from this rule’s assigned Technical Advisory Committee. The department met with this group six times during 2023 and early 2024 specifically targeted to gather rule proposals and other feedback. Draft code changes were shared throughout the rulemaking process and the Committee provided comments. This was an invaluable exercise to ensure those impacted by proposed rule changes had a voice in the process, understood the reasons for the changes being proposed, and had a direct line to staff for open communication. The Committee consists of solid waste industry association representatives, landfill owners and operators, landfill design consultants, an environmental group representative, and a university representative. • Advice from the Waste and Materials Management Study Group, a stakeholder working group that provides the Waste and Materials Management Program with constructive feedback on policy and technical issues and works collaboratively with department staff. • The Alternative Landfill Liner Study that was commissioned by the department in 2021. The study includes information on liner requirements in other states, approval processes in other states, and models used to assess landfill liner performance and contaminant migration. • Information gathered from adjacent states on landfill design regulations and solid waste fees. • Economic impact analyses conducted by the department on potential impacts to private businesses, local governments, and the state economy related to plan review fee changes and license surcharge fee changes that impact all generators of solid waste. All landfill owners and operators will benefit from updating, clarifying, and codifying regulations related to landfill design and operation, including alternative options for landfill liner and cover, options for including additional waste prior to closure, and easier submittals and lower fees for vertical-only expansions. Many existing policies will be codified in this rule for consistent application of regulations statewide, ensuring an even playing field among competing landfills. The rulemaking process included six meetings with the Technical Advisory Committee to gather ideas. Many changes were made to rule proposals based on Committee feedback.
State residents and businesses can rely on the existence of an efficient system for disposing of solid waste and the protection from risks to public health and the environment that sound implementation of the state solid waste codes provide.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Proposed changes to landfill design or operation requirements and fees may result in both economic savings and costs for landfill owners and operators, none of which are small businesses. There are currently 58 active licensed municipal solid waste and industrial landfills and thousands of closed landfills in Wisconsin. State residents and businesses, including small businesses, are indirectly affected by state solid waste management policies and standards because they rely on the existence of an efficient system for disposing of solid waste and the protection from risks to public health and the environment that state solid waste codes provide. Regulations ensure modern landfills are well-engineered and managed for the disposal of solid waste. Landfills are located, designed, operated and monitored to ensure compliance with regulations and to protect the environment from contaminants that may be present in the waste stream.
Portions of the rule may have a positive economic impact on landfill facility owners and operators due to reduced construction costs or other technical and administrative efficiencies. The benefits will likely vary for each landfill based on differences in locally available construction materials and costs across the State. Some landfills may not realize any construction cost changes because of locally available materials. Increased operating costs may be offset by benefits and efficiencies realized from other changes within the proposed rule.
The rule proposes changes to plan review and licensing fees consistent with s. 289.61, Stats., which requires the department adopt by rule a graduated schedule of reasonable license and review fees for solid waste license and review activities at a level anticipated to recover the solid waste program staff review costs. Any impacts from modified fees may be passed on by facility operators to the generators of the waste being managed (businesses, small businesses, municipalities, and residential customers). Several of the proposed rule changes codify more modern, existing practices now utilized by the industry since the last updates to this code or conditions applied to a majority of landfill design and operations, and therefore have minimal to no economic impact when compared to current conditions. There are also several proposed rule changes that are optional and therefore have minimal to no economic impact unless the landfill designs are proposed by a landfill in its plan of operations.
Proposed rule changes that would likely have an economic impact were assessed for impacts to privately owned landfills, publicly owned landfills, and to generators of waste—households and businesses in Wisconsin. Some information on costs of materials (leachate pipes, geotextile liners), costs for consultants to conduct plans, and estimates of OFR savings were provided by members of the Technical Advisory Committee. To assess the average impact of proposed fee changes on individual households, information on Wisconsin households was collected from the U.S. Census Bureau. The average impact of proposed fee changes on businesses and small businesses was determined using U.S. Census Statistics of U.S. Businesses provided by the Wisconsin Economic Development Corporation.
Additional information is included in the fiscal estimate and economic impact analysis included with this rule package.
11. Effect on Small Business (final regulatory flexibility analysis):
The department assumes that no private solid waste landfills operating in Wisconsin meet the definition of a small business under s. 227.114 (1), Stats. (“small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000). In general, there may be minimal economic impact to small businesses in the State because of changes to fees applied to solid waste disposed of in landfills. The definition of “small business” in s. 227.114 (1), Stats., does not match how small businesses are defined by the U.S. Census Statistics of U.S. Businesses, but the data are used here to show the limited impact an increase in landfill license surcharge fees would have on each individual business. Year after proposed code change | License surcharge fee per ton of waste disposed (a) | Average annual fee collection1 (b = a * 6,993,185 tons) | Additional fee increase in comparison to current rule (c = b - $1,048,978) | Private Business Impact Per Year |
| | | | Total fees borne by business (d = c/2) | Average fee borne per business unit (e = d/ 108,122)2 | Average fee borne per small business unit (f = e * 86%)3 |
Current rule | $0.15 | $1,048,978 | - | - | - | - |
First year (2026) | $0.25 | $1,748,296 | $699,318 | $349,659 | $3 | $2.80 |
Second year (2027) | $0.25 | $1,748,296 | $699,318 | $349,659 | $3 | $2.80 |
Sixth year (2031) | $0.27 | $1,888,160 | $839,182 | $419,591 | $4 | $3 |
Eleventh year (2036) | $0.30 | $2,097,956 | $1,048,978 | $524,489 | $5 | $4 |
1 Based on 5-year average tonnage in each category of waste to which the surcharge fee is applied (6,993,185 tons). A majority of waste is reported as “municipal solid waste” that is a mix of household and business waste.
2108,122 firms in Wisconsin in 2020 (U.S. Census Statistics of U.S. Businesses)
3 86% of all businesses/86% of fees impact; 93,112 firms in Wisconsin with 24 or fewer employees in 2020 (U.S. Census Statistics of U.S. Businesses)
13. Place where comments are to be submitted and deadline for submission:
A public comment period occurred from August 26 through October 7, 2024, and a public hearing was held on September 30, 2024.
RULE TEXT
1Section 1 NR 500.03 (11) and (18) are amended to read: NR 500.03 (11) “Aquifer" means a geologic formation, group of formations, or part of a formation which are that is saturated and can transmit economic usable quantities of groundwater.
(18) “Bedrock" means all rock formations at or beneath the land surface. any naturally formed consolidated or cohesive material of the earth's crust, composed of one or more minerals, rock fragments, or organic material, that underlies any soil or other unconsolidated surficial material or is exposed at the surface.
Note: Bedrock includes limestone (dolomite), sandstone, shale, and igneous and metamorphic crystalline rock, including granite, rhyolite, quartzite, gabbro, basalt, gneiss, schist, diorite, and greenstone.
2Section 2 NR 500.03 (37) is repealed. 3Section 3 NR 500.03 (42m) is created to read: NR 500.03 (42m) “Competent bedrock” means bedrock that is structurally sound and exhibits a minimum of chemical or physical weathering such that it retains its consolidated and cohesive properties.
