Madison, WI 53707-7921
Phone: 608.267.3538
Fax: 608.267.2768
July 25, 2019 – 1:00 p.m. – Department of Natural Resources Green Bay Service Center, 2984 Shawano Avenue, Green Bay WI; Lake Michigan Conference Room
July 29, 2019 – 1:00 p.m. – Department of Natural Resources, 101 S. Webster St., Madison, WI; Room G27A
The consent of the Attorney General will be requested for the incorporation by reference of SW-846 test methods; ASTM D3987, “Test Method for Shake Extraction of Solid Wastes with Water”; ASTM C618, “Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use in Concrete”; and ACI 229R, “Controlled Low Strength Materials.”
Section 1. NR 538.01 is amended to read:
NR 538.01 Purpose. The purpose of this chapter is to allow and encourage, to the maximum extent possible, consistent with the protection of public health and the environment and good engineering practices, 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 in order 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. Section 2: NR 538.02 (Note) is amended to read:
NR 538.02 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. Other Additional state and local laws and codes, however, may apply to the beneficial use of industrial byproducts regulated under this chapter. Section 3: NR 538.03 is repealed and recreated to read:
NR 538.03 Definitions. In this chapter, the following definitions as well as the definitions in ch. 289, Stats., and s. NR 500.03 are applicable: (1) "Base aggregates" means specified or selected material of designated thickness placed on a subgrade to support a pavement or other structure.
(2) “Beneficial use” means the utilization of an industrial byproduct in a productive manner.
(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.
(4) “Excess quantities” means the use of industrial byproducts in volumes that are greater than necessary for the specific project purpose.
(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.
(6) “Foundry sand” means spent silica-based molding and core sand that has been subject to the metal casting process, including dry baghouse and wet collector sand fines collected at the foundry during the metal casting process.
(6m) “Generator” means any person whose act or process produces an industrial byproduct as identified, listed, or determined by the department under sub. (8).
(7) “Impervious surface” means a barrier layer designed to prevent percolation or contain liquids that have come into contact with the byproduct consisting of 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. (8) (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.
(b) “Industrial byproduct” includes only materials that have been generated as a byproduct of an industrial process and possess consistent physical and chemical properties.
(c) “Industrial byproduct” does not include any of the following:
1. Post-consumer waste or the byproducts of combusting or processing post-consumer waste.
2. Ash from solid waste incinerators.
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.
4. Material that was previously disposed or landfilled.
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. (9) "Lime kiln dust" means the material recovered from air pollution control systems that capture emissions from lime kilns.
(10) “Productive manner” means the use of an industrial byproduct that meets all of the following criteria:
(a) Provides a functional benefit.
(b) Substitutes for the use of a virgin material that must be otherwise obtained.
(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.
(11) “Representative sample” means any sample of industrial byproduct material collected for analysis that reliably exhibits the average properties of the byproduct production stream.
(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.
(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. (14) "Subgrade" means the uppermost soil bearing surface upon which base aggregates are placed.
(15) "Subgrade fill" means the layer or layers of industrial byproduct material placed to achieve a subgrade.
Section 4. NR 538.04 (1), (3) and (6) are amended to read:
NR 538.04 (1) A significant adverse impact on wetlands as provided under ch. NR 103. (3) A detrimental effect on any surface water waters as defined in s. NR 102.03 (7). (6) The emissions of any hazardous air contaminant exceeding the limitations for those substances contained in ss. NR 445.03, s. NR 445.04 or 445.05. Section 5. NR 538.04 (7) is created to read:
NR 538.04 (7) A discharge of pollutants carried by storm water exceeding any applicable permit requirements or standards under ch. NR 216. Note: The emissions of particulates and volatile organic compounds are regulated under s. NR 415.03 and chs. NR 419 to 424. Section 6. NR 538.05 is amended to read:
NR 538.05 Solid waste rules exemption. (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 538 528. (2) Existing exemptions. This chapter does not abrogate, rescind or terminate an approval or grant of exemption in effect on January 1, 1998 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. Section 7. NR 538.06 is repealed and recreated to read:
NR 538.06 Industrial byproduct characterization. (1) GENERAL. 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 notification within 10 business days, the notification is deemed complete and concurrence is considered granted. The testing program for materials not specifically listed in ch. NR 538 Appendix, Tables 1 to 3, shall be approved by the department in writing prior to characterization. For those materials not listed in ch. 538 Appendix, Tables 1 to 3, the department may modify the list of parameters required to be analyzed for and may establish standards on a material-specific basis for additional parameters. (2) INITIAL CHARACTERIZATION. A representative sample of each industrial byproduct shall be properly characterized prior to beneficial use to determine its eligible uses under s. NR 538.10. Samples shall be obtained at the point of accumulation nearest to where the byproduct is generated. A case-specific approval under s. NR 538.09 may be required if the byproduct is subject to any deliberate post-accumulation processing, excluding mechanical size reduction or sorting and the application of water to improve handling or as dust suppression. (3) CHARACTERIZATION METHODS. (a) General. The limits of detection used in the characterization shall be at or below the concentrations listed in ch. NR 538 Appendix, Tables 1 to 3 for each parameter. When a limit of detection at or below a standard is not achievable, the method that will achieve the lowest detection limit shall be used. All material sampling, total elemental analyses, and analyses of elutriate from leach testing shall be performed using EPA SW-846 methods, unless alternate methods are otherwise approved by the department in writing. The generator shall report the limit of detection and the limit of quantitation with the sample results. If a substance is detected below the limit of quantitation, the detected value with the appropriate qualifier shall be reported. (b) Hazardous waste determination. All industrial byproducts that are to be beneficially used under this chapter shall first be determined not to be a hazardous waste as defined under s. NR 660.10 (52) using a method specified under ch. NR 662.011. The generator shall provide supporting documentation of the waste determination along with the initial certification submitted to the department as specified in sub. (1). Note: Supporting documentation may include representative sampling and analysis, safety data sheets, published information, process flow diagrams, profiles developed from the prior handling of industrial byproducts, or supported process knowledge.
(c) Water leach test. All industrial byproducts, except byproducts to be used as a soil or plant additive in accordance with s. NR 538.10 (5), shall be analyzed using ASTM D3987 water leach test as specified in ch. NR 538 Appendix, Table 1. (d) Bulk analysis. All industrial byproducts, except byproducts to be used as a soil or plant additive in accordance with s. NR 538.10 (5), shall be analyzed using a bulk analysis for the parameters in ch. NR 538 Appendix, Table 2, unless another analytical method is approved by the department in writing. (e) Flue gas desulfurization analysis. All flue gas desulfurization materials to be marketed and used as soil or plant additives in accordance with s. NR 538.10 (5) shall be analyzed using a total elemental analysis for the parameters in ch. NR 538 Appendix, Table 3, unless another analytical method or parameters are approved by the department in writing. (4) MIXING OF INDUSTRIAL BYPRODUCTS. If separate industrial byproducts will be mixed together, each of the byproducts must be individually eligible for the specific intended final use of the resulting mixture unless otherwise approved by the department in writing under s. NR 538.09. Note: Copies of EPA SW-846 test methods are available directly from the U.S. environmental protection agency at https://www.epa.gov/hw-sw846. Copies of the test methods are available for inspection at the offices of the department of natural resources and the legislative reference bureau. Note: ASTM-D3987 is the American society for testing and materials "Test Method for Shake Extraction of Solid Wastes with Water." Copies of the ASTM standard may be obtained from ASTM International at https://www.astm.org/Standards/D3987.htm. Copies of the standard are available for inspection at the offices of the department of natural resources and the legislative reference bureau. Note: Due to the presence of combined water, samples of FGD gypsum should be tested in accordance with ASTM C 471M, “Standard Test Methods for Chemical Analysis of Gypsum and Gypsum Products” available at https://www.astm.org/Standards/C471M.htm. (5) RECHARACTERIZATION. (a) Industrial byproducts that are beneficially used under this chapter shall be recharacterized after the initial characterization in accordance with this section, unless the department approves, in writing, an alternative recharacterization method.
(b) Industrial byproducts shall be recharacterized as follows:
1. A representative sample of each industrial byproduct shall be recharacterized whenever there is a change in the process that produces the industrial byproduct that could potentially result in a change in the eligible uses of the industrial byproduct.
2. A representative sample of each industrial byproduct shall be recharacterized in accordance with ch. NR 538 Appendix, Tables 1 and 2, once every 4 years from the date of the initial certification or the last recharacterization, except that recharacterization is not required under this subsection for any industrial byproduct of which less than 1000 cubic yards were beneficially used or stored for beneficial use in any calendar year during the previous 4-year period. (c) The generator shall submit documentation of any recharacterization test results required under this section to the department in accordance with s. NR 538.14 (2). The department shall reply with a written concurrence within 10 business days, provided the submittal meets the applicable criteria of this chapter. If the department does not respond to a notification within 10 business days, the notification is deemed complete and concurrence with the recharacterization is considered granted. (6) INITIAL APPLICABILITY. A generator that submitted an initial certification prior to January 1, 2021 may submit a recharacterization to the department within 4 years of the date the last recharacterization or initial certification was submitted to the department prior to January 1, 2021, provided there has been no change in the process that produces the industrial byproduct in accordance with s. NR 538.06 (5) (b) 1. Section 8. NR 538.08 is repealed and recreated to read:
NR 538.08 Determination of eligible uses. Acceptable beneficial uses for industrial byproducts that have been determined not to be a hazardous waste as defined in s. NR 660.10 (52) and tested in accordance with s. NR 538.06 shall be determined as follows:
