•• Deletes grant distribution language, which is no longer applicable.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 •• Deletes grant assistance condition, grant payment, and dispute resolution language that is no longer applicable or needed in code.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 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. •• Adds that for any recyclable materials collection system, if only the minimum of monthly curbside collection 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. Access could include a drop-off site in another municipality or at a private location. If curbside collection is provided more often than once per month, additional access to a drop-off site is not required by code. _Hlk141686981• 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. •• 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). •• 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 provided that it also modifies its recycling ordinance and compliance assurance plan to reflect this requirement and collects recycling tonnage data. •• 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 beginning in 2027, in-state 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. Cost of closure calculations will be limited to removing remaining inventory including equipment and materials, recycling or disposal costs, transportation, labor, supervision, overhead costs, and taxes and a 10% contingency. •• 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.
_Hlk1414597027. 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 update to 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. Michigan requires materials recovery facilities that have more than 100 tons of materials onsite at any time to obtain a general permit, report annually, and obtain $20,000 in owner financial assurance.
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. Michigan requires that all materials recovery facilities do not receive an amount of solid waste equal to or more than 15% of the total weight of material received by the facility.
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 several 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 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. 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).
The department also considered economic benefits of proposed improvements to effective recycling programs statewide, which 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 (final regulatory flexibility analysis):
_Hlk141460018The 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 materials recovery facilities that may qualify as small businesses is not likely to exceed ten.
