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(4)   ACI 229R, “Controlled Low Strength Materials” incorporated by reference in s. NR 538.10(3)(g).
5. Plain Language Analysis:
The Beneficial Use Program originated in 1997, when chapter NR 538, Wis. Adm. Code, was first adopted. This code laid out a streamlined process whereby certain industrial byproduct such as coal combustion byproducts, foundry sand, lime-kiln dust, paper mill sludge and other high-volume industrial wastes with similar characteristics could be beneficially used in a variety of approved applications. The process was designed to be mostly self-implementing, with byproduct generators responsible for characterization of their material and annual reporting of materials used. For some projects, the rule provided for department review to evaluate the potential for impacts to human health or the environment.
The program has been generally successful, but the code needs updating to address new environmental standards, laws and changes in manufacturing and air pollution control processes, while continuing to encourage the beneficial use of waste materials that might otherwise be landfilled. To accomplish this, the department is proposing the following changes to ch. NR 538, Wis. Adm. Code:
(A) Update standards.
  (1) The current chapter NR 538 Appendix I consists of Tables 1 through 4, each with a list of concentrations of elements and compounds that are compared to the test results of a water leach test and a totals analysis for each byproduct material to assign them to a reuse category of 1 through 5. Each category corresponds to a list of accepted reuse activities. The Appendix I standards were based on s. NR 140.10, Wis. Adm. Code, groundwater quality standards for the water leach test results, and ch. NR 720, Wis. Adm. Code, soil clean-up standards for the totals analysis results, as they existed in 1997 when ch. NR 538, Wis. Adm. Code, was promulgated. To update and simplify these tables and standards, the department proposes repealing Appendix I in its entirety and replacing it with an Appendix that includes the following changes:
  a. Appendix Table 1, to establish water leach testing standards based on the current ground water quality enforcement standard (ES) exceedance values in ch. NR 140, Wis. Adm. Code. Table 1, Column 1A is based on the ES value and Table 1, Column 1B is based on five times the ES value. The required parameters for testing are based on published studies of each byproduct material or existing water leach performance data.
  b. Appendix Table 2, to establish bulk testing standards based on Wisconsin Department of Health Services (DHS) modelling of potential ingestion and inhalation exposures from specific approved uses that are not covered or encapsulated.
  c. Appendix Table 3, to establish bulk testing standards for the use of flue gas desulfurization (FGD) gypsum as an agricultural soil amendment based on standards established by the U.S. Department of Agriculture in Natural Resource Conservation Service (NRCS) Conservation Practice Code 333 or Wisconsin-specific background threshold values in accordance with s. NR 720, Wis. Adm. Code, for certain elements.
  d. Appendix Table 4, to establish eligible uses for byproduct materials that meet the standards thresholds in Appendix Tables 1-3.
(B) Simplify rule requirements.
  (1) Section NR 538.08, Wis. Adm. Code, establishes criteria for assigning a byproduct material to one of five categories based on testing results in comparison to the standards in the Appendix I Tables 1 through 4. Each category of byproduct material is then allowed certain specified uses under s. NR 538.10, Wis. Adm. Code. The department proposes simplifying this requirement by eliminating the category designations and instead directly assigning eligible uses to each byproduct material based on test results and the revised Appendix Table 1-4 standards. To accomplish this, the following sections will be modified:
  a. Section NR 538.08, Wis. Adm. Code, will be repealed and recreated to describe the standards by which each byproduct material will be assigned acceptable eligible uses.
  b. Section NR 538.06, Wis. Adm. Code, will be repealed and recreated to describe the testing and reporting necessary in an initial certification or recharacterization submittal from a generator to obtain a concurrence from the department regarding the eligible uses for each byproduct material.
(C) Update eligible uses.
  (1) Section NR 538.10, Wis. Adm. Code, lists all of the eligible beneficial uses for industrial byproducts and establishes standards for their use. The department proposes repealing and replacing section NR 538.10, Wis. Adm. Code, to delete some previously approved uses and add some new uses that have been developed since the original promulgation of the rule. New, revised and deleted permitted beneficial uses under s. NR 538.10, Wis. Adm. Code, include the following:
  (a) Section NR 538.10(1), Wis. Adm. Code, is created to allow for uses that are fully contained in a disposal facility, encapsulated and bound in a matrix, burned for fuel or converted into a product. There are few conditions placed on these eligible uses.
  (b) Section NR 538.10(2) and s. NR 538.12, Wis. Adm. Code, are created to allow for the limited use of byproducts as geotechnical fill material. Eligible uses include subgrade fill beneath non-residential buildings, subgrade fill beneath roadways and paved lots, fill material in berms or parking areas to be covered with two feet of soil cover or gravel, foundry sand to be used as fill beneath livestock buildings, transportation facility embankments, and geotechnical fill to restore nonmetallic mine sites to a stable and safe condition.
  (c) Section NR 538.10(3), Wis. Adm. Code, is created to allow for byproducts to be used in a variety of construction uses including as subgrade fill beneath a roadway, base aggregates as a gravel substitute, as utility trench backfill under paved roadways, as fill material in underground tank abandonments, as slabjacking material, as in-situ soil or pavement stabilization, as controlled low-strength flowable fill, and bonded surface course. Fully encapsulated transportation embankments, decorative stone and bridge abutments were deleted as eligible construction uses due to their limited future application potential.
  (d) Section NR 538.10(4), Wis. Adm. Code, is created to allow for certain beneficial uses that are unconfined by a soil or pavement cover and are not encapsulated within a matrix. These uses include unbonded surface course on roadways, parking lots or trails as a substitute for gravel, winter weather road abrasives, and manufactured soil blends made from spent foundry sand.
  (e) Section NR 538.10(5), Wis. Adm. Code, is created to allow for the use of flue gas desulfurization (FGD) gypsum and lime-bearing industrial byproducts as agricultural soil or plant additives provided they obtain licenses from the Department of Agriculture, Trade and Consumer Protection (DATCP).
(D) Long-term management of geotechnical fills.
  (1) Section NR 538.14, Wis. Adm. Code, is modified to require that geotechnical fills greater than 5000 cubic yards obtain a concurrence from the department and submit detailed locational information so the fill sites and the byproduct used can be documented in a database.
  (2) Section NR 538.22, Wis. Adm. Code, is modified so property owner notifications are required for all geotechnical fill projects and copies are submitted to the department to be recorded and kept on file.
  (3) Section NR 538.24, Wis. Adm. Code, is created to regulate the excavation of existing geotechnical fill material. This will allow for excavation and reuse of existing, documented geotechnical fills without the need to conduct an investigation and obtain approval from the department’s Remediation and Redevelopment Program.
(E) Appendix I.
  (1) Section NR 538, Appendix I is repealed and replaced with section NR 538, Appendix. The revised Appendix contains new standards based on the groundwater quality standards in s. NR 140, Wis. Adm. Code, use-specific exposure modeling from DHS and NRCS standards for soil amendment application. Categories (1-5) have been eliminated to simplify the standards. Testing parameters are based on constituents of concern in published U.S. EPA reports and historic detects in the department’s beneficial use database files.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The department is proposing changes in ch. NR 538, Wis. Adm. Code, under existing state statutory authority in s. 289.05(4), Stats. The proposed changes are not prompted by any changes in federal regulation of solid waste. Some associated federal rules that apply to the beneficial use of industrial byproducts include:
40 CFR 257.2, which defines materials that are regulated as solid waste. The federal definition of “solid waste” is almost identical to the state definition in s. 289.01(33), Stats. with the exception that state rules exempt iron and steel process slag under certain conditions while the federal rule does not allow for an exemption of iron or steel process slag from the definition of solid waste.
40 CFR 257.53 defines the beneficial use of coal combustion residuals (CCRs), which are considered “industrial byproducts” under the proposed revisions to ch. NR 538, Wis. Adm. Code, by describing four “legitimacy criteria” that must be met before CCR material may be considered beneficially used and not disposed. The first three legitimacy criteria were incorporated into proposed s. NR 538.03(9), Wis. Adm. Code, which defines use of the industrial byproducts in a “productive manner.The fourth criteria contained volume limitations that the department determined were not appropriate for inclusion in the proposed rule revision, although the rules do include standards to prevent releases from beneficial use projects that may exceed regulatory standards.
7. Comparison with Similar Rules in Adjacent States (Illinois, Michigan, Minnesota and Iowa):
There is no federal rule regulating the beneficial use of all industrial byproducts. State regulations vary considerably. The state of Wisconsin was one of the first in the nation to promulgate rules on the beneficial use of industrial byproducts in 1997, and many states have rules that are loosely based on the ch. NR 538, Wis. Adm. Code, regulatory format.
The State of Michigan regulates the beneficial use of various industrial waste materials under Part 115 Rule (statute) through authority granted to the Michigan Department of Environmental Quality (MDEQ). Acceptable beneficial uses are listed under Section 11502(8) of the rule, which divides the uses into five separate categories. Specifications for testing and criteria for use are explained in other sections of Rule 115. Acceptable beneficial uses include bonding into cement or asphalt, construction fill under roadways, land application, waste treatment at landfills, soil blending, and flue gas scrubbing reagent. Uses must be demonstrated to be protective of groundwater and surface water quality as well as human health and the environment.
The State of Minnesota regulates the beneficial use of certain industrial waste byproducts through Minn. Rule Ch. 7035.2860 by establishing a process under which waste generators can apply to the Minnesota Pollution Control Agency (MPCA) for a case-specific beneficial use determination (CSBUD) or make use of a list of standing beneficial uses (SBUD) that do not require prior MPCA approval. The list of SBUD uses includes reclaimed glass as aggregate, coal fly ash as an ingredient in cement, recycled concrete as an aggregate, tire chips as aggregate, shingles in asphalt mixes, lime-bearing wastes as an agricultural soil amendment, and foundry sand in cement mixes. Foundry sand can be used in a variety of uses including construction and geotechnical fill under a CSBUD specifically for foundry material. The permitted uses are listed in the appendix and fills must meet certain chemical standards and locational criteria such as being placed five feet above the seasonal groundwater table, not in contact with surface water, covered, and placed in thicknesses not to exceed four feet unless used as building sub-base or as approved by the MPCA. Uses not included in the SBUD list or the foundry CSBUD must be physically and chemically characterized in accordance with 7035.2861 which specifies that the analysis methods used for characterization must be consistent with the management option or beneficial use being proposed. Subpart 7 also requires annual reporting to the county in which the byproduct is generated.
The State of Illinois regulates the beneficial use of certain industrial byproducts in accordance with Section 22.54 of the Illinois Environmental Protection Act (415 ILCS 5/22.54) by requiring the generator or applicant to submit a formal Request for a Beneficial Use Determination for review by the Illinois Environmental Protection Agency (IEPA). All determinations are case-specific and based on the properties of the byproduct and site-specific conditions. All applications must justify that the byproduct materials are being legitimately beneficially used. However, coal combustion byproducts are exempted under subsection (4)(f) provided they qualify for a list of pre-approved beneficial uses under 415 ILCS 5/ 3.135. Steel and foundry wastes that are classified as "beneficially usable" by Board rules (35 Ill. Code 817) are also exempt per subsection (4)(h). Steel and foundry wastes that are used for land reclamation purposes are not exempt from this provision and must obtain an individual beneficial use determination. In accordance with 35 Ill. Adm. Code 817, steel and foundry wastes must be tested using water leach test method ASTM D3987, with the results compared to water quality standards specified in 35 Ill. Adm. Code 620. Based on the water leach test results, the steel and foundry wastes are then designated as either beneficially usable, potentially usable or low risk.
The State of Iowa regulates industrial byproducts through Beneficial Use Determinations issued under ch. 108 of the Iowa Adm. Code (IAC 567 ch. 108). This Code also covers use of byproducts as alternate daily cover at landfill disposal sites. Similar to WI requirements, s. 108.04, IAC lists a variety of byproducts and specified eligible uses for each byproduct material that do not require prior approval by the IDNR but are considered universally approved beneficial use determinations. Byproducts used as fill material must meet the conditions in s. 108.6(1) IAC which includes water leach testing and a total metals analysis that is compared to water quality and state-wide soil standards. It also requires submission of a solid by-product management plan to the IDNR by all recipients of a beneficial use determination which must be updated and reported annually under s. 108.7 IAC. One section of the Code, 108.5, IAC, includes a provision for obtaining a beneficial use determination from the IDNR for byproduct materials or uses not specified in the Code.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The proposed ch. NR 538, Wis. Adm. Code, rule revisions rely on byproduct-specific analytical data to demonstrate the suitability of the byproduct material to be beneficially used while minimizing potential environmental impacts. Accepted uses are determined from established ASTM standards and Wisconsin Department of Transportation standard practices. Restrictions on those uses to protect public health and the environment are based on studies, existing quality standards in the administrative code, and good engineering practices. Specific examples include the following:
  (A) Section 538.06, Wis. Adm. Code, requires the industrial byproduct generator to analyze the byproduct material for leachability through ASTM-D3987 and for bulk analytical through methods in EPA Method SW-846 for an initial certification determination to assign appropriate eligible uses.
  (B) Section NR 538, Wis. Adm. Code, Appendix Table 1, lists the water leaching test parameters required for the Initial Characterization and Recharacterization of each industrial byproduct material. The parameters listed are based on listed constituents of concern from U.S. EPA studies of foundry sand and coal combustion residuals as well as historic characterization data collected by the department since implementation of the beneficial use program in 1997. Foundry sand parameters originated from Phase II Constituents of Concern per EPA Risk Assessment 530-R-14-003 (groundwater and ecological). Coal ash parameters were derived from Appendix III and IV, 40 CFR 257 (CCR Rule) and Constituents of Concern for groundwater and surface water per EPA 530-R-14-001.
  (C) Section NR 538, Wis. Adm. Code, Appendix Table 2, lists the bulk analyses parameters and standards required for Initial Certification and Recharacterization based on standards developed by DHS-specific potential human exposure modelling results for unconfined uses.
(D) Section NR 538, Wis. Adm. Code, Appendix Table 3, lists the parameters and standards for the use of flue gas desulfurization gypsum as a soil amendment that are derived from NRCS Conservation Practice Standard Code 333, June 2015 and Wisconsin-specific soil background concentrations in ch. NR 720, Wis. Adm. Code.
  (E) Section NR 538.10, Wis. Adm. Code, which is proposed to be repealed and replaced, contains numerous references to construction standards to define when a use is considered beneficial. Standards include:  
  (1) NRCS Code 313 for animal waste storage facilities and NRCS Code 629 for animal feed storage facility construction.
  (2) ASTM D7765 for use of foundry sand used for structural fill.
  (3) ASTM E-2277 for use of coal ash in structural fills.
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