Chapter NR 538

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.