Chapter NR 538

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) (1) Storage.

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.

NR 538.16(2) (2) Transportation. A vehicle or container used to transport industrial byproducts intended for beneficial use shall meet all of the following criteria:

NR 538.16(2)(a) (a) The vehicle or container shall be designed and built to be durable and leak-proof and maintained to prevent nuisance conditions from occurring.

NR 538.16(2)(b) (b) The vehicle or container shall be loaded and hauled in such a manner that the contents do not fall, spill, or leak, including the use of covers as necessary. Any spilled industrial byproduct shall be properly recovered.

NR 538.16 Note Note: Storage and transportation of industrial byproduct in accordance with this chapter are exempt from the storage and transportation requirements of ch. NR 502 as specified in ss. NR 502.05 (3) (i) and 502.06 (2) (k).

NR 538.16 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (1) (a) 4. Register January 2006 No. 601, eff. 2-1-06; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 6-1-20.

NR 538.18 NR 538.18 Public participation.

NR 538.18(1) (1) Notification. Except as provided in sub. (2), no person may initiate a beneficial use project where the volume of the industrial byproduct to be used is greater than 30,000 cubic yards, or construct or operate a permanent or temporary storage facility with a design capacity greater than 30,000 cubic yards, prior to the person giving notice to the affected public and providing for adequate public participation. Unless other forms of public notification and involvement are approved by the department in writing, the notice and public participation process provided by the person intending to initiate a beneficial use project or storage facility shall include, at a minimum, all of the following:

NR 538.18(1)(a) (a) Placing a public notice in the local newspaper at least 30 business days prior to initiating an industrial byproduct beneficial use project or storage facility, specifying the nature of the beneficial use project or storage facility, including the type and amount of the material to be used or stored, how and where the material will be used, the time frame of the project or storage facility operation, that the person intending to initiate the beneficial use project or storage facility may hold a public informational meeting either electively or if requested, and a contact person for the public to request a meeting.

NR 538.18 Note Note: The public informational meeting is not considered an informational hearing under s. 289.26, Stats., even if department staff elect to participate.

NR 538.18(1)(b) (b) Holding a public informational meeting, if requested by the public, at which details of the project can be discussed. Department staff may participate in the meeting.

NR 538.18(2) (2) Exemptions.

NR 538.18(2)(a) (a) The following beneficial use projects are exempt from the public participation requirements under this section:

NR 538.18(2)(a)1. 1. Beneficial uses described under s. NR 538.10 (1), (3), (4), and (5).

NR 538.18(2)(a)2. 2. Wisconsin department of transportation beneficial use projects that were addressed in the department of transportation’s environmental review process.

NR 538.18(2)(a)3. 3. Beneficial use projects at facilities licensed under chs. NR 500 to 538.

NR 538.18(2)(b) (b) The following beneficial use storage facilities are exempt from the public participation requirements under this section:

NR 538.18(2)(b)1. 1. Storage facilities located on the property where the industrial byproducts are generated.

NR 538.18(2)(b)2. 2. Storage facilities that are licensed under ch. NR 502.

NR 538.18(2)(b)3. 3. Municipal maintenance and storage facilities under s. NR 538.16 (1) (b) 3.

NR 538.18 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; correction in (2) (a) 3. made under s. 13.92 (4) (b) 7., Stats., Register February 2010 No. 650; CR 19-080: am. (1) (intro.), (a), r. and recr. (2) (a) 1., r. (2) (a) 4., am. (2) (b) 1., r. and recr. (2) (b) 3. Register May 2020 No. 773, eff. 11-1-20.

NR 538.20 NR 538.20 Environmental monitoring.

NR 538.20(1) (1) The department may require environmental monitoring for beneficial use projects subject to this chapter that do not meet the beneficial uses described in s. NR 538.10 or are subject to a case-specific approval under s. NR 538.09.

NR 538.20(2) (2) Fully encapsulated transportation facility embankments. Environmental monitoring for embankments that are fully encapsulated under s. NR 538.10 (6) shall be conducted as follows:

NR 538.20(2)(a) (a) One headwell shall be installed if less than 50,000 cubic yards of industrial byproducts are used in the embankment. A second headwell shall be installed if 50,000 cubic yards or more of industrial byproducts are used in the embankment.

NR 538.20(2)(b) (b) The head elevation in each headwell shall be monitored twice each year at least 4 months apart. If the head level on the liner exceeds 2 feet, the department shall be notified. This notification shall include an evaluation of the reason for the head level build up and a proposed response to reduce the head level on the liner.

NR 538.20(3) (3) Capped transportation facility embankment. The environmental monitoring for embankments that are capped and not lined under s. NR 538.10 (7), shall be conducted as follows:

NR 538.20(3)(a) (a) One basin lysimeter shall be installed with a collection area of 100 square feet. The lysimeter shall be placed directly below the industrial byproduct, and shall be located so that it will be beneath the thickest placement of the industrial byproduct.

NR 538.20(3)(b) (b) The volume of fluid collected in a basin lysimeter shall be monitored and recorded twice each year at least 4 months apart. If the volume of liquid collected in a basin lysimeter exceeds 375 gallons in one year the department shall be notified. This notification shall include an evaluation as to the reason for the volume of liquid being collected, an analysis of the liquid collected for all the parameters listed ch. NR 538 Appendix I, Table 2A and a proposed response to reduce the volume of liquid exfiltrating through the industrial byproduct.

NR 538.20 Note Note: On May 25, 2020, the department of natural resources published CR 19-080. In that rule, the department intended to repeal and recreate all of s. NR 538.20, removing subs. (2) and (3), but erroneously repealed and recreated only sub. (1). The subsections which previously referred to fully encapsulated transportation facility embankments and capped transportation facility embankments were removed from s. NR 538.10 and the cross-references to s. NR 538.10 (6) and (7) included in these subsections are obsolete. The department will address corrections to this section in future rulemaking.

NR 538.20 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 19-080: r. and recr. (1) Register May 2020 No. 773, eff. 11-1-20.

NR 538.22 NR 538.22 Property owner notification.

NR 538.22(1) (1) Written notice shall be provided to all owners of property on which any volume of industrial byproducts is utilized under this chapter for one or more of the beneficial uses described under s. NR 538.10 (2). This notice shall be provided to the owner of property and the department prior to its use. The generator, or a person designated by the generator, shall provide the notice in accordance with this section, unless the department approves an alternative notice procedure. This notice shall be on a form provided by the department or in a format approved by the department in writing. Any property owner receiving this notice shall retain this information and provide this information to the next purchaser of the property.

NR 538.22 Note Note: Copies of this 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 538.22(2) (2) A property owner notification shall include all of the following information:

NR 538.22(2)(a) (a) The type, volume, and generator of the industrial byproduct used as geotechnical fill on the property.

NR 538.22(2)(b) (b) The location of the project and a site description, including a topographic or orthophoto map, township and range to the quarter section, or geographic information system locational information that defines the location of industrial byproduct placement.

NR 538.22(2)(c) (c) Affirmation that the generator, or the generator’s designee, has discussed the contents of this notice with the property owner and has provided them with a copy.

NR 538.22(3) (3) A copy of the property owner notification form shall be submitted to the department prior to placement of any industrial byproduct material. A copy of the notification may be submitted by mail or electronically as directed by the department.

NR 538.22 Note Note: Copies of this form may be obtained electronically or 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 538.22(4) (4) For projects that utilize more than 10,000 cubic yards of industrial byproducts, the notification shall include an affidavit recorded with the register of deeds, within 60 business days after completing the placement of the industrial byproduct, indicating that industrial byproducts were used on the property, and an indication where the information required under sub. (1) may be obtained.

NR 538.22 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 538.22 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (1) Register January 2006 No. 601, eff. 2-1-06; CR 19-080: am. (1), r. and recr. (2), (3), am. (4) Register May 2020 No. 773, eff. 11-1-20.

NR 538.24 NR 538.24 Excavation of existing geotechnical fill.

NR 538.24(1) (1) General. An owner of property where industrial byproducts had previously been used as geotechnical fill in accordance with the provisions of this chapter, or the owner’s designee, may petition the department for approval to excavate and re-use or dispose of the industrial byproduct material provided they meet the provisions of this section.

NR 538.24(2) (2) Re-use. Except as provided in sub. (5), the property owner, or the owner’s designee, shall submit a written notification to the department for re-use of the existing geotechnical fill. The department shall review and respond to the notification in accordance with s. NR 538.14 (6). The notification shall contain all of the following information:

NR 538.24(2)(a) (a) The name, address, and contact information for the property owner and the owner’s representative or consultant.

NR 538.24(2)(b) (b) Information demonstrating that the existing geotechnical fill had been placed as a beneficial use project in accordance with this chapter. This information may include a copy of the concurrence letter from the department, a copy of the owner notification notice required under s. NR 538.22, the location on a database maintained by the department for locating beneficial use projects, or other proof as accepted by the department.

NR 538.24(2)(c) (c) The location of the existing geotechnical fill material and the proposed extent of the excavation and relocation of the material.

NR 538.24(2)(d) (d) The proposed re-use, including a demonstration that it will meet the applicable standards specified in ss. NR 538.04 and 538.10.

NR 538.24(3) (3) Disposal. If any excavated geotechnical fill material will be disposed rather than reused, the property owner or the owner’s designee shall provide to the department in writing the information required under sub. (2) (a) to (c), the name of the disposal facility, and the volume of disposed material within 60 days after completion of the project.

NR 538.24(4) (4) Offsite re-use. If the excavated material is to be beneficially used on a property other than the original fill site, the property owner of the re-use site shall be notified in accordance with s. NR 538.22. A public notice shall also be issued in accordance with ch. NR 538.18 for excavated material re-use projects with a design capacity greater than 30,000 cubic yards.

NR 538.24(5) (5) Exemptions. Minor excavations of 1,000 cubic yards or less of geotechnical fill material that had previously been approved under the provisions of ch. NR 538 shall be exempt from the requirements of sub. (2), provided the excavated fill material is either re-used in accordance with s. NR 538.04 and an eligible beneficial use per s. NR 538.10 or disposed in a landfill. Any remaining fill material shall be covered with a confining surface or soil cover in accordance with an eligible use under s. NR 538.10 (2) (a) to (f).

NR 538.24 History History: CR 19-080: cr. Register May 2020 No. 773, eff. 11-1-20; correction in (2) (a) to (c), (5) made under s. 35.17, Stats., Register May 2020 No. 773.