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The Wisconsin Natural Resources Board adopts an order to repeal NR 538.18 (2) (a) 4. and 538 Appendix I; to amend NR 538.01, 538.02 (Note), 538.04 (1) and (3), 538.05, 538.18 (1) (intro.), (a), and (2) (b) 1., and 538.22 (1) and (4); to repeal and recreate NR 538.03, 538.06, 538.08, 538.10, 538.12, 538.14, 538.16, 538.18 (2) (a) 1. and (b) 3., 538.20 (1), 538.22 (2), and (3); and to create NR 538.04 (7) and (Note), 538.09, 538.18 (1) (a) (Note), 538.24, and 538 Appendix relating to the beneficial use of industrial byproducts and affecting small business.
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Section 289.05(4), Wis. Stats.
2. Statutory Authority:
Section 289.05(4), Wis. Stats., establishes the authority for promulgation of the proposed rule revisions.
3. Explanation of Agency Authority:
Section 289.05(4), Wis. Stats., requires that the department promulgate, by rule, standards for the reuse of foundry sand and other high-volume industrial waste. This resulted in the promulgation of ch. NR 538, Wis. Adm. Code, Beneficial Use of Industrial Byproducts, on August 1, 1997. Under the statute, the department is required to design the rules to allow and encourage, to the maximum extent possible consistent with the protection of public health and the environment, the beneficial reuse of high-volume industrial waste, to preserve resources, conserve energy and reduce or eliminate the need to dispose of high-volume industrial waste in landfills. In developing rules under this subsection, the department is required to review methods of reusing high-volume industrial waste that are approved by other states and incorporate those methods to the extent that the department determines is advisable. In developing rules, the department must also consider the analysis and methodology used by the U.S. Environmental Protection Agency (EPA) in determining the impacts on groundwater from various methods of reusing high-volume industrial wastes. These statutory provisions support the department’s proposed changes to ch. NR 538, Wis. Adm. Code, which will update regulatory standards, simplify the rule to encourage beneficial use, and revise the standards to incorporate new research and uses.
4. Related Statutes or Rules:
Chapter NR 538, Wis. Adm. Code, for the Beneficial Use of Industrial Byproducts with an effective date of December 1997 and January 2006.
Section 289.43(7), Wis. Stats., for the Exemption from Licensing, Recycling of High-Volume Industrial Waste. This section authorizes the department to exempt a specific solid waste facility or specified types of facilities to allow recycling of any high-volume industrial waste.
Subsections 227.21(2)(b) and 291.05, Wis. Stats., for the incorporation by reference testing, monitoring and other technical standards established by the federal government and technical societies and organizations, to which reference is made in ch. NR 538 Wis. Adm. Code. Some materials that are incorporated by reference in the references listed below are hereby incorporated by reference and made a part of ch. NR 538 Wis. Adm. Code. References include:
(1)   SW-846 test methods incorporated by reference in s. NR 538.06(3)(a).
(2)   ASTM D3987-12, “Test Method for Shake Extraction of Solid Wastes with Water” incorporated by reference in s. NR 538.06(3)(c).
(3)   ASTM C618-15, “Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use in Concrete” incorporated by reference in s. NR 538.10(3)(f).
(4)   ACI 229R-13, “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 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:
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