NR 538.10(3)(g)
(g)
Controlled low strength material. Industrial byproducts incorporated into controlled low strength material for structural improvements, commonly referred to as flowable fill, shall be used in accordance with ACI 229R-13, the Wisconsin department of transportation specifications for highway and structure construction, or other good engineering practices acceptable to the department.
NR 538.10 Note
Note: ACI 229R-13 is the American Concrete Institute report “Controlled Low Strength Materials." Copies of this report can be obtained at
https://www.concrete.org. Copies of this report are also available for inspection at the offices of the department of natural resources and the legislative reference bureau.
NR 538.10(3)(h)
(h)
Bonded surface course material. Industrial byproducts used as a bonded surface course such as seal coats and chip seals in paved federal, state or municipal roadways, commercial and private roadway or parking surfaces, driveways, airport runways, and trails shall conform to the Wisconsin department of transportation standard specifications for highway and structure construction applicable to asphaltic pavements, including limitations on the percentage of material passing the P200 sieve and application rates. Within 48 hours of application of the industrial byproduct, the surface shall be rolled to thoroughly embed these materials into the asphaltic mastic and, within one week of application, the surface shall be swept to remove any loose excess material.
NR 538.10(4)
(4)
Unconfined uses. Unconfined uses that are not contained, encapsulated, or covered by either 2 feet of soil or an impervious surface and meet the project criteria and uses specified in this subsection. Unconfined uses include any of the following:
NR 538.10(4)(a)
(a)
Unbonded surface course material. Industrial byproducts used as an unbonded surface course shall conform to the requirements of Wisconsin department of transportation standard specifications for highway and structure construction applicable to base materials and may be placed at a cumulative thickness of 6 inches or less and in areas separated by at least a 25-foot vegetated buffer to a navigable surface water. This includes the use of industrial byproducts as a surface course material in unpaved driveways, road shoulders, farm lanes, parking areas, and recreation or exercise trails. The use of industrial byproducts as unbonded surface course is prohibited in residential areas.
NR 538.10(4)(b)
(b)
Winter weather road abrasive on roadways with a rural cross-section. Winter road abrasives using industrial byproducts, wholly or as part of a mixture of abrasives and de-icing compounds, shall meet Wisconsin department of transportation gradation and application rate recommendations for winter highway maintenance contained in the state highway maintenance manual. The use of industrial byproducts as winter road abrasives is restricted to use on roadways designed with a rural type cross-section with only incidental sections of curbs and gutters.
NR 538.10(4)(c)
(c)
Manufactured soil blends. Manufactured soil blends with the mineral component derived from spent silica-based foundry sand from iron, steel, and aluminum foundries shall be comprised of no more than 50% spent foundry sand by weight and intended for use as a commercial or consumer product. Soil blends that incorporate industrial byproducts other than foundry sand or solid waste material shall be approved under the case-specific provisions specified in s.
NR 538.09.
NR 538.10 Note
Note: Bulk land application of spent foundry sand on agricultural fields is regulated under ch.
NR 518.
NR 538.10(5)
(5)
Soil or plant additives derived from flue gas desulfurization or lime-bearing industrial byproducts. Flue gas desulfurization or lime-bearing industrial byproducts used as soil or plant additives shall be managed, applied and licensed in accordance with subch.
II of ch. ATCP 40 or ch.
ATCP 41. Prior to use, initial certification, and concurrence by the department in accordance with s.
NR 538.06 is required. In addition to the certification information, the applicant shall demonstrate, as part of the required written notification, all of the following:
NR 538.10(5)(a)
(a) The industrial byproduct, as demonstrated through research projects approved under s.
NR 518.04 (2) or previously published research, has value as a soil or plant additive and will not result in detrimental effects to the soil or vegetation at the rates and mixtures proposed. If the additive is part of a mixture, the physical and chemical nature of the other materials in the mixture and the relative percentages of each material shall be described in the submittal.
NR 538.10(5)(b)
(b) The industrial byproduct or byproduct mixture will not be applied at rates such that excessive accumulation of hazardous substances occurs in soil or vegetation, cause a detrimental effect on surface water quality, or cause a detrimental effect on groundwater quality that would result in an exceedance of the groundwater quality standards specified in s. NR 140.
NR 538.10(5)(c)
(c) The industrial byproduct or byproduct mixture will be applied in accordance with accepted agricultural practices.
NR 538.10(5)(d)
(d) Industrial byproducts that are intended for use as agricultural liming materials, as defined under s.
94.66 (1) (am), Stats., meet the requirements of ch.
ATCP 41 and do not contain contaminant concentrations exceeding the values listed in Table 3 of s.
NR 204.07 (5) (c).
NR 538.10(5)(e)
(e) Flue gas desulfurization material intended for use as an agricultural soil amendment does not contain contaminant concentrations exceeding the values listed in ch.
NR 538 Appendix, Table 3, and will not be applied in volumes exceeding the maximum recommended application rates as determined by the Wisconsin department of agriculture, trade and consumer protection.
NR 538.10 Note
Note: USDA Code 333 is the guidance document “Amending Soil Properties with Gypsum Products,” published as Natural Resources Conservation Service Conservation Practices Standard Code 333 (333-CPS-1), June 2015, and is available through the U.S. department of agriculture website:
https://www.usda.gov/.
NR 538.10 Note
Note: Copies of Wisconsin department of transportation specifications for highway and structure construction and the state highway maintenance manual are available for inspection at the offices of the department of transportation, department of natural resources and the legislative reference bureau.
NR 538.10 Note
Note: Under s.
30.2022, Stats., highway and bridge projects affecting the waters of the state that are carried out under the direction and supervision of the department of transportation are exempt from department permit or approval requirements if accomplished in accordance with interdepartmental liaison procedures established by the department of natural resources and the department of transportation.
NR 538.10 History
History: Cr.
Register, December, 1997, No. 504, eff. 1-1-98;
CR 05-020: am. (5) (a) to (d), (f), (7) (b), (8) to (10), renum. (11) and (12) to be (12) and (13) and am., cr. (5) (h), (i) and (11)
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 (3) (b) made under s.
13.92 (4) (b) 7., Stats., and correction in (2) (b), (f) 5., (5) (intro.) made under s.
35.17, Stats.,
Register May 2020 No. 773.
NR 538.12
NR 538.12 Additional criteria for the beneficial use of industrial byproducts as geotechnical fill. NR 538.12(1)(1)
All geotechnical fill uses shall comply with the performance standards under s.
NR 538.04 and the applicable criteria in this section.
NR 538.12(2)
(2) Industrial byproducts that are utilized for any of the uses under s.
NR 538.10 (2) shall be placed in accordance with all of the following:
NR 538.12(2)(a)
(a) Industrial byproducts may not be placed within areas of permanent standing water or areas that need to be dewatered prior to placement due to groundwater infiltration.
NR 538.12(2)(b)
(b) For those beneficial uses listed in s.
NR 538.10 (2) that use industrial byproducts designated by the department as select foundry sand under s.
NR 538.06 (3) (f) or that do not exceed the concentrations specified in ch.
NR 538 Appendix, Table 1, Column A, there shall be a minimum separation distance of 3 feet between the industrial byproduct and the groundwater table at the time of placement, except geotechnical fill used for nonmetallic mine reclamation projects under s.
NR 538.10 (2) (f), which shall maintain a minimum separation distance as determined by s.
NR 538.10 (2) (f) 5. NR 538.12(2)(c)
(c) For those beneficial uses listed in s.
NR 538.10 (2) that use industrial byproducts, excluding select foundry sand, that exceed the concentrations specified in ch.
NR 538 Appendix, Table 1, Column A, but are less than the concentrations specified in ch.
NR 538 Appendix, Table 1, Column B, there shall be a minimum separation distance of 5 feet between the industrial byproducts and the groundwater table at the time the material is placed.
NR 538.12(2)(d)
(d) Industrial byproducts may not be placed within an area that meets the definition of a floodplain under s.
NR 116.03 (16) or below the ordinary high-water mark within any navigable waters as defined under s.
NR 115.03 (6) without prior written approval from the department.
NR 538.12(2)(e)
(e) Industrial byproducts used as geotechnical fill as part of the reclamation of nonmetallic mine sites in accordance with s.
NR 538.10 (2) (f) may not exceed the concentrations in s. NR 538 Appendix, Table 1, Column A unless designated by the department as select foundry sand under s.
NR 538.06 (3) (f).
NR 538.12(3)
(3) Industrial byproducts that are used for the beneficial uses listed in s.
NR 538.10 (2) and exceed 5,000 cubic yards may not be placed closer than 100 feet from a private or public water well. Prior written notification to the department in accordance with s.
NR 538.14 (5) and concurrence by the department under s.
NR 538.14 (6) is required for separation distances less than 100 feet. Concurrence by the department shall be based on site-specific conditions such as well construction and ground water flow direction.
NR 538.12(4)
(4) Beneficial use projects utilizing fill materials under s.
NR 538.10 (2) shall be completed, including the placement of final cover, within 12 months of first accepting industrial byproduct material. This period may be extended to no more than 16 months provided the site is adequately secured from public access by means of exclusion fencing and signage or other equally effective means as approved by the department in writing. If the beneficial use project requires more than 12 months to complete, or 16 months to complete if the site is adequately secured, the project shall be planned in phases with each phase of filling completed and interim or final cover placed prior to initiation of filling the next phase. Prior to use of an alternate cover, the generator, or the generator's designee, shall provide a written request to the department. A written approval by the department may be granted based upon site-specific conditions and good engineering practices.
NR 538.12(5)
(5) Confining surfaces and soil cover in beneficial use projects utilizing fill materials under s.
NR 538.10 (2) shall be maintained as designed. Fill materials exposed by erosion, excavation, or weathering shall be covered in accordance with the original design, or as approved by the department, as soon as practical. Requests for modification of the final cover shall be made in accordance with s.
NR 538.14 (7), and excavation of fill material shall be performed in accordance with s.
NR 538.24.
NR 538.12(6)
(6) Beneficial use projects proposing utilization of 100,000 cubic yards or more of geotechnical fill materials under s.
NR 538.10 (2) shall require a request to the department by the generator, or the generator's designee, for a case-specific approval in accordance with s.
NR 538.09.
NR 538.12(7)
(7) All vegetated soil covers over geotechnical fill materials under s.
NR 538.10 (2) shall utilize topsoil in sufficient quantities and of sufficient quality to support a vegetative cover that prevents erosion.
NR 538.12(8)
(8) All geotechnical fill projects under s.
NR 538.10 (2) shall be conducted in a manner to minimize windblown dust, odor, tracking, and spillage of the industrial byproduct and not to cause nuisance conditions.
NR 538.12 History
History: Cr.
Register, December, 1997, No. 504, eff. 1-1-98;
CR 05-020: am. (2) (b), r. (2) (d), cr. (2) (br)
Register January 2006 No. 601, eff. 2-1-06; correction in (3), (4) and (5) made under s. 13.93 (2m) (b) 7., Stats.,
Register May 2006 No. 605; correction in (1) made under s. 13.92 (4) (b) 7., Stats.,
Register February 2010 No. 650;
CR 19-080; r and recr.
Register May 2020 No. 773, eff. 11-1-20; correction in (2) (b), (e), (3), (5) made under s. 35.17, Stats.,
Register May 2020 No. 773.
NR 538.14(1)(1)
Initial certification. Prior to beneficial use of industrial byproducts under this chapter, or the establishment of a non-exempt storage facility, each generator, non-exempt storage facility operator, or the generator's designee, shall submit an initial certification form to the department. An initial certification form shall be submitted prior to beneficial use in accordance with this chapter for any industrial byproduct not previously approved for eligible uses, for any industrial byproduct for which the generation process has changed, or for the establishment of a storage facility for industrial byproducts. The initial certification form shall include all of the following information:
NR 538.14(1)(a)
(a) The name and address of the generator or storage facility operator.
NR 538.14(1)(b)
(b) The name, address, and telephone number of the designated generator or storage facility operator contact.
NR 538.14(1)(c)
(c) A description of each industrial byproduct intended for beneficial use or storage that clearly identifies the process that generated the material and an estimate of the volume that may be made available for beneficial use on an annual basis.
NR 538.14(1)(d)
(d) Initial byproduct characterization results as required under s.
NR 538.06 (1) to
(3), including a listing of the eligible uses of each industrial byproduct to be beneficially used or stored for beneficial use in accordance with s.
NR 538.10 and ch.
NR 538 Appendix, Tables 1 to 3. Documentation, including test results supporting the eligible use determinations, shall be included. Non-exempt storage facilities under s.
NR 538.16 (1) (a) shall provide the name and address of the generators of the industrial byproducts to be stored unless the storage facility is located at the same address as the industrial byproduct generating facility.
NR 538.14(1)(e)
(e) Authorization for Wisconsin department of natural resources staff to conduct inspections of the facilities generating industrial byproducts being beneficially used under this chapter or storage facilities for those industrial byproducts and collect samples to verify compliance with this chapter.
NR 538.14(1)(f)
(f) Certification by each generator, or the generator's designee, and each storage facility operator, or the operator's designee, that the information on the form is true and accurate, and that the performance standards of s.
NR 538.04 will be met.
NR 538.14 Note
Note: Copies of the initial certification form may be obtained from the department of natural resources, bureau of waste management, 101 South Webster Street, Natural Resources Building, P.O. Box 7921, Madison, Wisconsin 53707-7921.
NR 538.14(2)
(2)
Recharacterization. Each generator of industrial byproducts that have been beneficially used under this chapter, operator of a non-exempt storage facility for industrial byproducts as required under s.
NR 538.16 (1) (a), or the designee of the generator or operator, shall submit recertification information used to determine the eligible use of each industrial byproduct, electronically or on a form supplied by the department, every 4 years or after a process change in accordance with s.
NR 538.06 (5). The recertification form shall be submitted to the department no later than 60 days following the receipt of the analytical testing results which indicate a potential reassignment of the eligible uses for any industrial byproduct. Analytical testing results that confirm the eligible uses assigned during the initial certification or the previous recharacterization may be submitted with the annual certification under sub.
(3). The recertification form shall include all of the following information:
NR 538.14(2)(a)
(a) The name and address of the generator or storage facility operator.
NR 538.14(2)(b)
(b) The name, address, and telephone number of the designated generator or storage facility operator contact.
NR 538.14(2)(c)
(c) A description of each industrial byproduct intended for beneficial use or storage that clearly identifies the process and location of the generating facility.
NR 538.14(2)(d)
(d) Documentation, including analytical testing results, supporting the eligible use classifications as specified under s.
NR 538.08.
NR 538.14(2)(e)
(e) Certification by the generator, or the generator's designee, or the storage facility operator, or the operator's designee, that the information on the form is true and accurate.
NR 538.14(3)
(3)
Annual certification.
Each generator of industrial byproducts that have been beneficially used under this chapter, operator of a non-exempt storage facility for industrial byproducts as required under s.
NR 538.16 (1) (a), or the generator's or operator's designee, shall submit an annual certification, electronically or on a form supplied by the department, that documents the amount of material beneficially used for each eligible use in the previous calendar year and confirms the proper use of each industrial byproduct. The certification form shall be submitted no later than April 1 of the year following the reporting period. The annual certification form shall include all of the following information:
NR 538.14(3)(a)
(a) The name and address of the generator or storage facility operator.
NR 538.14(3)(b)
(b) The name, address, and telephone number of the designated generator or storage facility operator contact.
NR 538.14(3)(c)
(c) A description of each industrial byproduct intended for beneficial use or storage that clearly identifies the process and location of the generating facility.
NR 538.14(3)(d)
(d) The volume of each industrial byproduct that was beneficially used during the reporting period, identified by types of beneficial uses under s.
NR 538.10. If the industrial byproduct was given or sold to an entity other than the generator for subsequent use or distribution, the name and address of the recipient shall be listed along with the volume the recipient received and the intended beneficial uses.
NR 538.14(3)(e)
(e) For non-exempt storage facilities, the volume of each industrial byproduct that was in storage as of December 31 of the reporting year.
NR 538.14(3)(f)
(f) Documentation, including test results, supporting any required recharacterization as specified in s.
NR 538.06 (5). A non-exempt storage facility under s.
NR 538.16 (1) (a) shall provide the name and address of the generators of the industrial byproducts to be stored unless the storage facility is located at the industrial byproduct generating facility.
NR 538.14(3)(h)
(h) Certification by the generator, or the generator's designee, or storage facility operator, or the operator's designee, that the information on the form is true and accurate, and that the performance standards of s.
NR 538.04 have been met.
NR 538.14 Note
Note: Copies of the annual certification form may be obtained from the department of natural resources, bureau of waste management, 101 South Webster Street, Natural Resources Building, P.O. Box 7921, Madison, Wisconsin 53707-7921.
NR 538.14(4)
(4)
Exemption. Subsection
(2) does not apply if the volume of the generator's industrial byproducts beneficially used, or stored for future use, during the reporting period was less than 1,000 cubic yards.
NR 538.14(5)
(5)
Notification. Each generator, or a person designated by the generator such as a broker, shall submit written notification to the department prior to initiating a project when required under ss.
NR 538.10 (2) and
NR 538.12. All of the following information shall be included in the notification:
NR 538.14(5)(a)
(a) The name, address, and phone number of the contact for the project.
NR 538.14(5)(b)
(b) The location of the project and a site description, including a topographic or orthophoto map, township and range to the quarter section, and land use information. In addition, the applicant shall submit geographic information system locational information based on no fewer than 6 geographically informative points that define the limits of industrial byproduct placement. These points shall be collected using the North American Datum, NAD83 (1991). For each point, the longitude and latitude shall be referenced to the 5th decimal degree. The date, method, and tools used to collect locational information for each point shall also be included. Other methods of geolocation that provide similar or better accuracy are also acceptable, subject to approval by the department.
NR 538.14(5)(c)
(c) The approximate volume of industrial byproduct anticipated to be used in the project.
NR 538.14(5)(d)
(d) The anticipated start and end dates for the project and the timing of any phasing.
NR 538.14(5)(e)
(e) Identification of the types and generators of the industrial byproducts to be used and the eligible uses of these materials.
NR 538.14(5)(f)
(f) Information demonstrating that the proposed project will meet the performance standards and beneficial use specifications of this chapter.
NR 538.14(5)(g)
(g) For those beneficial uses listed in s.
NR 538.10 (2) that exceed 5,000 cubic yards, the method and the data used to determine the groundwater separation distance.
NR 538.14(5)(i)
(i) For those beneficial uses subject to the public notification requirement under s.
NR 538.18, proof that a public notice was placed in the local newspaper in accordance with s.
NR 538.18 (1) (a).
NR 538.14 Note
Note: Proof of a public notice may include a copy of the notice clipped from the newspaper along with the date it was published or any other notification verifying that an order for the public notice was placed with the newspaper and the expected date of publication.
NR 538.14(6)
(6)
Concurrence. For proposed projects that require submission of a written notification, the department shall reply with a written concurrence within 10 business days provided the applicant meets the applicable criteria of this chapter. If the department determines that the proposal does not demonstrate that the project will meet the applicable criteria, the department shall provide a written notice of non-concurrence within 10 business days, noting any deficiencies and allowing the applicant an opportunity to correct them or provide additional information. If the department does not respond to the notification within 10 business days, concurrence is considered granted.
NR 538.14(7)
(7)
Modifications. Any generator, or the generator's designee, that wishes to modify a project for which the department granted concurrence under sub.
(6) shall notify the department in writing describing the nature of the modification requested. In determining if a modification is required, the applicant shall consider if the proposed modification alters the original project footprint, substantially increases the volume of the byproduct material, or has the potential to affect any of the performance standards under s.
NR 538.04. The department shall review the modification request and notify the applicant in writing if submission of a revised notification under sub.
(5) is required. If the department does not respond to the notification within 10 business days, the modification is deemed complete and concurrence is considered granted.
NR 538.14(8)
(8)
Record keeping. The generator, or the generator's designee, shall maintain records of where industrial byproducts have been utilized under this chapter for one or more of the beneficial uses described under s.
NR 538.10 (2). These records shall be maintained and be accessible to department staff upon request for 5 years after the use of the industrial byproduct.
NR 538.14 History
History: Cr.
Register, December, 1997, No. 504, eff. 1-1-98;
CR 05-020: am. (4) (intro.), cr. (4) (f)
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 (2) (intro.), (4), (5) (g) made under s.
35.17, Stats.,
Register May 2020 No. 773; correction in (1) (d), (2) (intro.), (d), (3) (intro.) made under s.
13.92 (4) (b) 7., Stats.,
Register February 2021 No. 782;
correction in (3) (f), (g) made under s. 13.92 (4) (b) 7., Stats., Register August 2022 No. 800. NR 538.16
NR 538.16 Storage and transportation requirements. NR 538.16(1)(a)(a) Storage of industrial byproducts for beneficial use shall meet the performance standards specified in s.
NR 538.04. Storage facilities shall also satisfy all of the following:
NR 538.16(1)(a)1.
1. The storage facility shall meet all of the following design and operational criteria:
NR 538.16(1)(a)1.a.
a. Areas intended for the storage of industrial byproducts that have been determined to contain greater than the concentrations specified for the parameters listed in ch.
NR 538 Appendix, Table 1, Column B shall incorporate an impervious surface pad and be surrounded by curbs or berms to control surface water run-on and run-off. Alternately, if a low permeability clay surface is used, it shall include a protective material cover of, at a minimum, one foot of gravel or an equivalent material over the clay. Areas intended for the storage of byproducts that have been determined to contain less than the concentrations specified for the parameters listed in ch.
NR 538 Appendix, Table 1, Column B shall construct a surface pad beneath the storage pile consisting of either an impervious surface, compacted soil, or an aggregate surface with a minimum one-foot thickness or an equally effective design as approved by the department in writing.
NR 538.16(1)(a)1.b.
b. Storage facilities shall be operated and maintained to minimize dust, off-site tracking, and storm water runoff. The storage area shall be clearly delineated and lined on 3 sides with curbs, blocks or berms designed to prevent spillage and contain the byproduct to the designated storage area. A setback shall be maintained between the stored material and the entrance to the storage area to prevent spillage of material and to reduce off-site tracking.
NR 538.16(1)(a)2.
2. The operator of the storage facility shall provide the department an annual certification in accordance with s.
NR 538.14, including a summary of the storage facility performance, problems, and maintenance in the annual certification under s.
NR 538.14 (3) (g) and an affirmation that the impervious or low permeability surface pad, if required, still meets the design criteria specified in subd.
1. a. NR 538.16(1)(a)3.
3. Upon closure of an industrial byproduct storage facility, the storage operator shall remove all visible residues from the storage area.
NR 538.16(1)(b)
(b) All of the following industrial byproduct storage facilities are exempt from the requirements of this subsection:
NR 538.16(1)(b)1.
1. Facilities for the storage of industrial byproducts contained within enclosed structures such as buildings, silos, or roll-off boxes.
NR 538.16(1)(b)2.
2. Facilities for the storage of industrial byproducts within a lined area at a licensed engineered landfill. Storage of industrial byproducts at a licensed engineered landfill shall be subject to the conditions of the plan of operation and any other applicable solid waste approvals associated with the landfill.
NR 538.16(1)(b)3.
3. Municipal maintenance and storage facilities that stockpile no more than 300 cubic yards of industrial byproduct material at any given time. The stored material shall be contained by perimeter berms or curbs. These facilities shall be operated and maintained to minimize dust, minimize off-site tracking, and manage storm water runoff.
NR 538.16(1)(b)4.
4. Facilities for the temporary off-site storage or staging of industrial byproducts to be used beneficially in accordance with s.
NR 538.10. These temporary facilities shall be operated and maintained to minimize dust, off-site tracking, and storm water runoff, and limit public access. Industrial byproducts may not remain in temporary off-site storage or staging areas for more than 16 months after the date of their placement. These facilities shall provide to the department written notice of the storage location, the date on which the storage of materials began, and the total volume stored.
NR 538.16(1)(b)5.
5. Facilities for which the department issues an exemption on a case-specific basis in accordance with s.
NR 538.09.
NR 538.16 Note
Note: The discharge of stormwater is regulated under ch.
NR 216.
