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.
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:
A public comment period on the draft rule occurred from December 4, 2023, to January 24, 2024, and a public hearing was held on January 17, 2024.
RULE TEXT
1Section 1 NR 500.03 (107m) is created to read: NR 500.03 (107m) “Incidental” means a minor amount occurring without intention.
2Section 2 NR 500.03 (190) is amended to read: 3Section 3 NR 500.03 (198m) and (238m) are created to read: (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.
4Section 4 NR 500.08 (2) (f) is amended to read: NR 500.08 (2) (f) Facilities where clean container glass is processed or used as an aggregate replacement in asphalt pavement and subbase material under roadways subject to the following:
5Section 5 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.
6Section 6 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.
7Section 7 NR 502.06 (4) (er) is repealed and recreated to read: _Hlk150241072NR 502.06 (4) (er) A service for the collection and transportation of recyclable materials shall do all of the following: _Hlk137645315 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, including all of the following: a. Tonnages of materials collected from throughout the responsible unit service area prior to any sorting or processing of the collected materials.
_Hlk137645739 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. 8Section 8 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.
9Section 9 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 in under sub. (7) (a), (c), (d), (i), (k), and(n), (o), (s), and (t) and the performance standards and closure requirements in under 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.
10Section 10 NR 502.07 (7) (t) is created to read: _Hlk142310976NR 502.07 (7) (t) Outdoor transfer space shall not be used for unbaled paper, cardboard, plastic, or other materials that can be easily moved by wind or water unless contained by a bunker of at least 3 sides with wall height and length greater than the recyclables it contains or other containment of equal and adequate efficacy for litter control. 11Section 11 NR 502.08 (2) (b) is repealed and recreated to read: NR 502.08 (2) (b) A materials recovery facility that maintains materials in marketable condition and that does not have a primary purpose to process waste tires.
12Section 12 NR 542.01 is amended to read: NR 542.01 Purpose. The purpose of this chapter is to establish rules under s. 287.23, Stats., for the implementation and administration of a grant program for planning, constructing, or operating effective recycling programs with one or more of the components specified in s. in accordance with ss. 287.11 (2) (a) to (h) and 287.23, Stats. 13Section 13 NR 542.02 is amended to read: 542.02 Applicability and cross referencing. This chapter applies to all applicants and recipients of funding under s. 287.23, Stats., for planning, constructing, or operating a recycling program. This chapter does not apply to applicants for financial assistance for waste reduction and recycling demonstration grants under s. 287.25, Stats., nor the waste tire grant program under s. 287.17, Stats. 14Section 14 NR 542.02 (Note) is repealed. 15Section 15 NR 542.03 (3) is repealed. 16Section 16 NR 542.03 (5m) is created to read: NR 542.03 (5m) “Multiple-family dwelling” means a structure containing 5 or more residential units, including units that are occupied seasonally.
17Section 17 NR 542.03 (8) is amended to read: NR 542.03 (8) “Prevailing market rate” has the meaning specified in s. 287.23 (1) (d), Stats. This means a reasonable estimate of the price of a recyclable material that will be paid by a collection facility serving the area within the boundaries of a responsible unit during the year for which an application for assistance is submitted. 18Section 18 NR 542.03 (8m) is created to read: NR 542.03 (8m) “Recyclable materials” has the meaning specified in s. NR 544.03 (33). 19Section 19 NR 542.03 (9) is repealed. 20Section 20 NR 542.03 (10) is amended to read: NR 542.03 (10) “Recycling program costs” means the costs incurred for collection, transportation, processing, and marketing costs incurred as a result of any of the following: of materials specified under s. 287.07 (2), (3), and (4), Stats. 21Section 21 NR 542.03 (10) (a) to (c) and (13) are repealed. 22Section 22 NR 542.04 is repealed and recreated to read: NR 542.04 Applicants. A responsible unit that has been determined by the department to have an effective recycling program is eligible to apply for grant assistance under this chapter.
_Hlk142045800Section 23 NR 542.05 (1) (intro.), (e) (intro.), (g), (j) 2., (2) (intro.), (b), (g) (intro.) and 1. are amended to read: NR 542.05 (1) Eligible costs. The grantee’s effective recycling program costs, net of the sale of recovered materials, that are reasonable and necessary for planning, constructing, or operating a an effective recycling program during a grant year are eligible for grant assistance. Eligible costs may include, but are not limited to any of the following:
(g) Costs of collecting recyclables, marketing and transporting recyclables to market; materials specified under s. 287.07 (2), (3), and (4), Stats., from a single family or a 2 to 4 unit residence. (j) 2. The proportionate share of the remaining costs as calculated as a equal to the proportion of recovered recyclables recyclable materials to total waste, by weight; and.
(2) Ineligible costs. Costs not directly associated with or not necessary for the planning, construction, or operation of an effective recycling program are not eligible for grant assistance. Ineligible costs include, but are not limited to all of the following:
(b) The costs Costs of collecting and disposing of municipal solid waste not separated for recycling, except as provided for in under sub. (1) (k);.
(g) Costs incurred in a contract which that creates a real or apparent conflict of interest. An apparent conflict of interest arises when an official or employee of a grantee participates in the selection, awarding, or administration of a contract supported by this program and when any of the following occurs:
1. The official or employee, or his or her a partner or immediate family member of the official or the employee, has an ownership interest in the firm selected for the contract; or.
24Section 24 NR 542.05 (2) (i) is created to read: NR 542.05 (2) (i) Costs of collecting, transporting, or marketing recyclable materials from a multiple-family dwelling or commercial, retail, industrial, or governmental facility.
