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Register February 2021 No. 782
Chapter NR 538
NR 538.01   Purpose.
NR 538.02   Applicability.
NR 538.03   Definitions.
NR 538.04   Performance standards.
NR 538.05   Solid waste rules exemption.
NR 538.06   Industrial byproduct characterization.
NR 538.08   Determination of eligible uses.
NR 538.09   Case-specific approvals.
NR 538.10   Eligible beneficial uses.
NR 538.12   Additional criteria for the beneficial use of industrial byproducts as geotechnical fill.
NR 538.14   Reporting.
NR 538.16   Storage and transportation requirements.
NR 538.18   Public participation.
NR 538.20   Environmental monitoring.
NR 538.22   Property owner notification.
NR 538.24   Excavation of existing geotechnical fill.
NR 538.01 NR 538.01Purpose. The purpose of this chapter is to allow and encourage, to the maximum extent possible, the beneficial use of industrial byproducts in a nuisance-free manner that is protective of public health and the environment and in accordance with good engineering practices. The department encourages the beneficial use of industrial byproducts to preserve resources, conserve energy, and reduce or eliminate the need to dispose of industrial byproducts in landfills. This chapter is adopted under ss. 289.05, 289.06, 289.43 (4), (7) and (8), and 227.11, Stats.
NR 538.01 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 19-080: am. Register May 2020 No. 773, eff. 11-1-20.
NR 538.02 NR 538.02Applicability.
NR 538.02(1)(1)Except as otherwise provided, this chapter governs the beneficial use of industrial byproducts, except hazardous waste as defined in s. 291.01 (7), Stats., and regulated under chs. NR 660 to 679; metallic mining operations for nonferrous minerals as defined in s. 293.01 (9), Stats., and regulated under ch. NR 182; and metallic mining operations for ferrous minerals as defined in s. 295.41 (26), Stats., including mining wastes and mining waste sites as defined in s. 295.41 (30) and (31), Stats., and regulated under subch. III of ch. 295, Stats.
NR 538.02(2) (2)This chapter does not apply to the design, construction or operation of industrial wastewater facilities, sewerage systems and waterworks treating liquid wastes approved under s. 281.41, Stats., or permitted under ch. 283, Stats., nor to facilities used solely for the disposal of liquid municipal or industrial wastes which have been approved under s. 281.41, Stats., or permitted under ch. 283, Stats., except facilities used for the disposal of solid waste.
NR 538.02 Note Note: The landspreading of wastewater treatment sludges is regulated under chs. NR 206 and 214. The landspreading of solid wastes is regulated under ch. NR 518. Additional state and local laws and codes may apply to the beneficial use of industrial byproducts regulated under this chapter.
NR 538.02 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 13-057: am. (1) Register July 2015 No. 715, eff. 8-1-15.
NR 538.03 NR 538.03Definitions. In this chapter, the following definitions as well as the definitions in ch. 289, Stats., and s. NR 500.03 are applicable:
NR 538.03(1) (1) “ Base aggregates" means specified or selected material of designated thickness placed on a subgrade to support a pavement or other structure.
NR 538.03(2) (2) “ Beneficial use” means the utilization of an industrial byproduct in a productive manner.
NR 538.03(3) (3) “ Encapsulated use” means a use in which the measurable leaching, emissions or decomposition characteristics of the industrial byproduct are substantially eliminated by binding them into a solid matrix.
NR 538.03(4) (4) “ Excess quantities” means the use of industrial byproducts in volumes that are greater than necessary for the specific project purpose.
NR 538.03(5) (5) ” Flue gas desulfurization material" or “FGD” means the material recovered from air pollution control systems that capture sulfur dioxide emissions from energy recovery facilities. “Flue gas desulfurization material” includes flue gas desulfurization gypsum produced as a byproduct of a lime or limestone-based reagent wet air pollution control scrubbing process that includes a forced oxidation system resulting in commercial grade calcium sulfate compound. “Flue gas desulfurization material” also includes flue gas desulfurization byproduct material generated in a dry or semi-dry air quality control system, provided the system includes separate coal combustion fly ash capture by means of an electrostatic precipitator or baghouse filter.
NR 538.03(6) (6) “ Foundry sand” means spent silica-based molding and core sand resulting from metal casting processes, including dry baghouse and wet collector sand fines collected at the foundry during the metal casting process.
NR 538.03(6m) (6m) “ Generator” means any person whose act or process produces an industrial byproduct as identified, listed, or determined by the department under sub. (8).
NR 538.03(7) (7) “ Impervious surface” means a barrier layer designed to prevent percolation or contain liquids that have come into contact with the byproduct consisting of either a minimum 3 inches thick of asphalt or concrete, a minimum 2 foot thick clay layer constructed in accordance with s. NR 504.06 (2) (a) and (f), a geomembrane layer constructed in accordance with s. NR 504.07 (5), or other impervious surface designs approved in writing by the department.
NR 538.03(8)(a) (a) “Industrial byproduct" means, subject to par. (b), papermill sludge; combustion ash including coal combustion residuals such as fly ash, bottom ash, boiler slag, and material captured in flue gas desulfurization systems; ferrous, steel and aluminum foundry sand; aluminum slag; byproducts from the production of lime including lime kiln dust; or non-hazardous solid waste with similar characteristics as determined by the department.
NR 538.03(8)(b) (b) “Industrial byproduct” includes only materials that have been generated as a byproduct of an industrial process and possess consistent physical and chemical properties.
NR 538.03(8)(c) (c) “Industrial byproduct” does not include any of the following:
NR 538.03(8)(c)1. 1. Post-consumer waste or the byproducts of combusting or processing post-consumer waste.
NR 538.03(8)(c)2. 2. Ash from solid waste incinerators.
NR 538.03(8)(c)3. 3. Slag generated by the production or processing of iron or steel that is managed as an item of value in a controlled manner and not discarded.
NR 538.03(8)(c)4. 4. Material that was previously disposed or landfilled.
NR 538.03 Note Note: Materials excluded from the definition of industrial byproducts may be beneficially reused if approved in writing by the department under s. NR 500.08 (5) (a) and s. 289.43, Stats., except iron or steel foundry slag which is exempted under ss. 289.01(33) and 287.29, Stats.
NR 538.03(9) (9) “ Lime kiln dust" means the material recovered from air pollution control systems that capture emissions from lime kilns.
NR 538.03(10) (10) “Productive manner” means the use of an industrial byproduct that meets all of the following criteria:
NR 538.03(10)(a) (a) Provides a functional benefit.
NR 538.03(10)(b) (b) Substitutes for the use of a virgin material that must be otherwise obtained.
NR 538.03(10)(c) (c) Meets relevant product specifications, regulatory standards or design standards when available, and, when such standards are not available, is not used in excess quantities.
NR 538.03(11) (11) “ Representative sample” means any sample of industrial byproduct material collected for analysis that reliably exhibits the average properties of the byproduct production stream.
NR 538.03(12) (12) “ Residential area" means properties that are in an area zoned as residential, are in an area planned for residential zoning under a master plan approved or adopted by a local municipal authority, or in an area within 100 feet of a human residence.
NR 538.03(12m) (12m) “Select foundry sand” means foundry sand, as defined under sub. (6), that is comprised of either spent green molding sand, resin bonded molding sand, or core sand with primary components consisting of combinations of silica sand, bentonite clay, and carbonaceous additives such as bituminous coal, gilsonite, and cellulose. “Select foundry sand” may include nominal quantities of spent molding aides such as riser sleeves and ceramic filters but may not include uncured chemically bonded sands or debris beyond trace quantities. “Select foundry sand” must also have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B to meet this definition.
NR 538.03(13) (13) “ Soil or plant additive” means a substance, intended for application to seeds, soil, or plants, that is designed for use or claimed to have value in promoting or sustaining plant growth, improving crop yield or quality, promoting or sustaining the fertility of the soil, or favorably modifying the structural, physical, or biological properties of the soil for agronomic or horticultural purposes and used in accordance with subch. III of ch. ATCP 40 or ch. ATCP 41.
NR 538.03(14) (14) “ Subgrade" means the uppermost soil bearing surface upon which base aggregates are placed.
NR 538.03(15) (15) “ Subgrade fill" means the layer or layers of industrial byproduct material placed to achieve a subgrade.
NR 538.03(16) (16) “ Topsoil” has the meaning given in s. NR 500.03 (236).
NR 538.03 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: renum. (2) to (6) to be (4) and (6) to (9) and am. (4) and (6), cr. (2), (3), (5) and (10) Register January 2006 No. 601, eff. 2-1-06; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in (12m) made under s. 35.17, Stats., Register May 2020 No. 773.
NR 538.04 NR 538.04Performance standards. No person may store, handle or beneficially use an industrial byproduct in a manner that may cause any of the following:
NR 538.04(1) (1)A significant adverse impact on wetland water quality standards as provided under ch. NR 103.
NR 538.04(2) (2)A take of an endangered or threatened species or other activity prohibited under s. 29.604, Stats.
NR 538.04(3) (3) A detrimental effect on any surface water quality standard as provided in s. NR 102.03 (7).
NR 538.04(4) (4)A detrimental effect on groundwater quality or will cause or exacerbate an attainment or exceedance of any preventive action limit or enforcement standard at a point of standards application as defined in ch. NR 140.
NR 538.04(5) (5)The migration and concentration of explosive gases in any structures, or in the soils or air at or beyond the project property boundary in excess of 25% of the lower explosive limit for the gases at any time.
NR 538.04(6) (6)The emissions of any hazardous air contaminant exceeding the limitations for those substances contained in s. NR 445.03.
NR 538.04 Note Note: The emissions of particulates and volatile organic compounds are regulated under s. NR 415.03 and chs. NR 419 to 424.
NR 538.04(7) (7) A discharge of pollutants carried by storm water exceeding any applicable permit requirements or standards under ch. NR 216.
NR 538.04 Note Note: The placement of materials in a floodplain where an obstruction to flood flows or an increase in regional flood event or an adverse affect upon a drainage course is regulated under ch. NR 116.
NR 538.04 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (2) Register January 2006 No. 601, eff. 2-1-06; CR 19-080: am. (1), (3), cr. (7) Register May 2020 No. 773, eff. 11-1-20.
NR 538.05 NR 538.05Solid waste rules exemption.
NR 538.05(1)(1)General. Persons who generate, use, transport, or store industrial byproducts that are characterized and beneficially used in compliance with this chapter are exempt from licensing under s. 289.31, Stats., and the regulatory requirements in chs. NR 500 to 528.
NR 538.05(2) (2)Existing exemptions. This chapter does not abrogate, rescind or terminate an approval or grant of exemption that was issued under s. 289.43 (7) or (8), Stats. Nothing in this subsection limits the authority of the department to modify, terminate or rescind any approval or grant of exemption as provided by law.
NR 538.05 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register February 2010 No. 650; CR 19-080: am. Register May 2020 No. 773, eff. 11-1-20.
NR 538.06 NR 538.06Industrial byproduct characterization.
NR 538.06(1)(1)General.
NR 538.06(1)(a)(a) Industrial byproducts that are beneficially used under this chapter shall be characterized, as specified in this section, to determine their eligible uses under s. NR 538.10. A generator, or the generator's designee, shall report the results of this characterization to the department as specified in s. NR 538.14 (1). The department shall reply with a written concurrence within 10 business days provided the applicant meets the applicable criteria of this chapter. The department has the option of concurring with the characterization, requesting additional information or analysis, determining that a case-specific approval under s. NR 538.09 is required, or issuing a non-concurrence decision. If the department does not respond to a certification request within 10 business days, the certification is deemed complete and concurrence is considered granted. The department may approve eligible uses for industrial byproducts that do not meet the listed characterization criteria on a case-specific basis in accordance with s. NR 538.09.
NR 538.06(1)(b) (b) For those materials not explicitly listed in, and which are subject to the requirements of the “Other” materials column of ch. NR 538 Appendix Tables 1 and 2, the department may do any of the following:
NR 538.06(1)(b)1. 1. Exempt the requirement to analyze for certain parameters on a material-specific basis.
NR 538.06(1)(b)2. 2. Require analysis for additional parameters on a material-specific basis in order to demonstrate compliance with performance standards identified at s. NR 538.04.
NR 538.06(1)(b)3. 3. Require the applicant submit a testing program plan, which the department must approve in writing prior to commencement of characterization.
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.