Chapter NR 528

NR 528.02 Note Note: The sediment manager or environmental professional may use knowledge or testing in accordance with NR 662.011 to determine if the accumulated sediment is subject to chs. NR 660 to 679. In general, accumulated sediment is not subject to regulation under chs. NR 660 to 679.

NR 528.02(3)(f) (f) Solid waste regulated under chs. NR 518 and 538.

NR 528.02(3)(g) (g) Sediment removed from temporary sediment control practices during the construction phase of a project.

NR 528.02(3)(h) (h) Contaminated soils regulated under chs. NR 700 to 722.

NR 528.02(3)(i) (i) Metallic mining operations for nonferrous minerals as defined in s. 293.01 (9), Stats., and regulated under ch. NR 182.

NR 528.02(3)(j) (j) Materials associated with metallic mining operations for ferrous minerals as defined in s. 295.41 (26), Stats., including mining wastes as defined in s. 295.41 (30) and sediment from stormwater management structures, as regulated under subch. III of ch. 295, Stats.

NR 528.02 Note Note: Use of this code does not release the sediment manager from the requirement to obtain other permits as appropriate. Permits may include ch. NR 216, for land disturbance of one or more acres; ch. 30, Stats., for waterway and wetland activities such as dredging of ponds or culvert cleaning; and ch. 283, Stats., for general wastewater discharges such as Pit/Trench Dewatering and Carriage and Interstitial Water from Dredging Operations.

NR 528.02 History History: CR 08-111: cr. Register November 2009 No. 647, eff. 12-1-09; correction in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register February 2012 No. 674; CR 13-057: cr. (3) (i), (j) Register July 2015 No. 715, eff. 8-1-15.

NR 528.03 NR 528.03 Definitions. The following definitions as well as the definitions in ch. 289, Stats., and s. NR 500.03 are applicable to the terms used in this chapter.

NR 528.03(1) (1) “Accumulated sediment” means settleable solid material contained in storm water runoff that is collected, retained and subsequently removed from storm water management structures.

NR 528.03(2) (2) “Commercial” means those buildings for which the primary function involves the sale of goods or services.

NR 528.03(3) (3) “Confined geotechnical fill” has the meaning specified in s. NR 538.03 (2).

NR 528.03 Note Note: Section NR 538.03 (2) defines confined geotechnical fill to mean “a fill that is covered by an impervious surface such as concrete or asphalt.”

NR 528.03(4) (4) “Dedicated sediment management sites” means sites designed and operated for multiple applications of accumulated sediment from one or more storm water management structures where the accumulated sediment is landspread or treated.

NR 528.03(5) (5) “Drainage area” means the land area from which the storm water management structure receives runoff.

NR 528.03(6) (6) “End use” or “end use of accumulated sediment” means use in agriculture, landscaping, site stabilization, construction, transportation projects, fill, backfill, reclamation of disturbed sites including mine reclamation, the placement of accumulated sediment and similar uses.

NR 528.03(7) (7) “Environmental professional” means a professional engineer registered pursuant to s. 443.04, Stats., or a professional soil scientist, geologist or hydrologist licensed under ch. 470, Stats.

NR 528.03(8) (8) “Forebay” means a pond-like structure that receives storm water prior to its entrance into the main portion of the pond with the purpose of removing coarse-grained sediment.

NR 528.03(9) (9) “General fill” means a location where accumulated sediment is used as fill in a natural topographic depression, an excavation such as an existing borrow area or an intentional excavation or to build up or shape the local landscape.

NR 528.03(10) (10) “Industrial” means those buildings used for the manufacture, storage or distribution of goods.

NR 528.03(11) (11) “Institutional” means any public or private schools or colleges, churches, hospitals, or other government facilities not covered under commercial.

NR 528.03(12) (12) “Landspreading of accumulated sediment” means the application of accumulated sediment in thin layers to the surface of the land or incorporation into subsurface soils.

NR 528.03(13) (13) “Licensed landfill” means a solid waste disposal facility with a license obtained pursuant to ch. 289, Stats.

NR 528.03(14) (14) “Multi-family residential” means housing for three or more attached dwelling units in a single building.

NR 528.03(15) (15) “Sediment manager” means any person with responsibility for the management of the accumulated sediment and may include those holding fee title, an easement or other interest in a property, or their agent including contractors or subcontractors and others required or authorized to undertake removal and subsequent management of accumulated sediment, including data gathering, reporting and recordkeeping.

NR 528.03(16) (16) “Storm water management structure” means a device that detains, retains and treats storm water runoff resulting in the accumulation of sediment, and pollutants carried in the runoff. Such structures are characterized by having an outlet that discharges to waters of the state but only in response to storm events and includes wet and dry detention ponds and infiltration basins but not landscape ponds on private property with no designed inlet or outlet.

NR 528.03(17) (17) “Waters of the state” means those portions of Lake Michigan and Lake Superior within the boundaries of Wisconsin, all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, water courses, drainage systems and other surface water or groundwater, natural or artificial, public or private within the state or under its jurisdiction, except those waters which are entirely confined and retained completely upon the property of a person.

NR 528.03 History History: CR 08-111: cr. Register November 2009 No. 647, eff. 12-1-09.

NR 528.04 NR 528.04 Locational criteria, performance standards, erosion control measures and ceiling levels. The sediment manager shall ensure that the management option selected for the accumulated sediment is implemented in accordance with all of the following applicable criteria:

NR 528.04(1) (1) Locational criteria.

NR 528.04(1)(a) (a) Except as provided in par. (b), a site where accumulated sediment is used or deposited shall meet the locational criteria in Table 1.

NR 528.04(1)(b) (b) The locational criteria in Table 1 do not apply to sediment from a drainage area that meets all the criteria in s. NR 528.06 (2) or to sediment used in an end use in accordance with s. NR 528.07 (3) or to sediment managed under s. NR 528.07 (7).

NR 528.04(2) (2) Performance standards.

NR 528.04(2)(a) (a) No person may use or dispose of accumulated sediment at a site if there is a reasonable probability that the sediment end use will cause any of the following:

NR 528.04(2)(a)1. 1. A significant adverse impact on wetlands as defined in ch. NR 103.

NR 528.04(2)(a)2. 2. A take of an endangered or threatened species prohibited by s. 29.604, Stats.

NR 528.04(2)(a)3. 3. A detrimental effect on any surface water.

NR 528.04(2)(a)4. 4. A detrimental effect on groundwater quality that will cause or exacerbate an exceedance of any preventive action limit or enforcement standard at a point of standards application as defined in ch. NR 140. The point of standards application is defined by s. NR 140.22 (1).

NR 528.04(2)(b) (b) The accumulated sediment end use shall comply with all applicable department approvals, federal, state and local requirements and be conducted in accordance with this subsection.

NR 528.04 Note Note: Compliance with this section does not release the sediment manager from the requirement to obtain other permits as appropriate. Permits may include ch. NR 216, for land disturbance of one or more acres; ch. 30, Stats., for waterway and wetland activities such as dredging of ponds or culvert cleaning; and ch. 283, Stats., for general wastewater discharges such as Pit/Trench Dewatering and Carriage and Interstitial Water from Dredging Operations.

NR 528.04(3) (3) Erosion control measures. The sediment manager shall ensure that measures are taken to control run-on and runoff, minimize the area disturbed by the project, minimize loss of fugitive dust and retain sediment on the site during and after the placement of the accumulated sediment. Runoff control measures shall be effectively inspected and maintained. Any area where topsoil is exposed shall be seeded and mulched or otherwise stabilized within 48 hours of placement. Where applicable, the requirements in ch. NR 216 shall be followed.

NR 528.04(4) (4) Ceiling levels. If the sample results obtained in accordance with s. NR 528.06 (3) (b) exceed any of the ceiling levels listed in Table 2, the sediment manager shall ensure that the accumulated sediment is disposed of in a licensed landfill.

Table 1

Locational Criteria for Management of Accumulated Sediment

Table 2

Ceiling Levels Governing Management of Accumulated Sediment

NR 528.04 History History: CR 08-111: cr. Register November 2009 No. 647, eff. 12-1-09.

NR 528.05 NR 528.05 Management decisions.

NR 528.05(1) (1) The sediment manager shall determine from the options listed in s. NR 528.07 an appropriate end use for the accumulated sediment based on consideration of all of the following factors:

NR 528.05(1)(a) (a) Evaluation of sediment sample data in s. NR 528.06 (4).

NR 528.05(1)(b) (b) Completion and evaluation of the appropriate portions of the certification form supplied by the department.

NR 528.05(1)(c) (c) Factors specific to the site where sediment is generated as identified in s. NR 528.06 (3) (b) 5.

NR 528.05(1)(d) (d) Factors specific to the site proposed for end use of the accumulated sediment.

NR 528.05(1)(e) (e) Any other factors relevant to the minimization of risk to public health, safety or the environment.

NR 528.05(2) (2) No sediment may be used in a manner which is likely to cause any significant risk to public health, safety or the environment.

NR 528.05 History History: CR 08-111: cr. Register November 2009 No. 647, eff. 12-1-09.

NR 528.06 NR 528.06 Sediment evaluation, certification requirements and end use determination. Except in cases where the accumulated sediment will be disposed of in a licensed landfill, the sediment manager shall evaluate the characteristics of the drainage area from which the accumulated sediment is removed, sample the accumulated sediment, where applicable, evaluate the sample results, choose an end use and create and maintain a record by completing the required certification form as set out in this section.

NR 528.06(1) (1) Certification form. The sediment manager shall ensure that the applicable portions of the certification form supplied by the department are accurately and completely filled out and certified.

NR 528.06 Note Note: Copies of the certification form may be obtained from the department of natural resources, bureau of waste and materials management, 101 South Webster Street, Natural Resources Building, P.O. Box 7921, Madison, Wisconsin 53707-7921, [phone], [e-mail].

NR 528.06(2) (2) Drainage area evaluation. The sediment manager shall certify in accordance with sub. (1) whether or not the drainage area meets all of the following criteria:

NR 528.06(2)(a) (a) Has less than 15% commercial, multi-family residential, institutional and industrial land uses combined, excluding green space such as parks, cemeteries, golf courses and lawns.

NR 528.06(2)(b) (b) Has no areas of suspected contamination that may adversely affect sediment management.

NR 528.06(2)(c) (c) Has no other existing conditions or known historical events that may adversely affect sediment management.

NR 528.06(2)(d) (d) Has no reported hazardous substance spills regulated under s. 292.11, Stats., since construction or since accumulated sediment was last removed.

NR 528.06(3) (3) Sampling. If the drainage area does not meet the criteria in sub. (2), the sediment manager shall ensure that the sediment is properly sampled and analyzed, each time, prior to its removal from the storm water management structure. Routine sediment sampling and handling shall be performed in accordance with par. (a). Sediment sample analysis shall be performed in accordance with par. (b). All sediment sampling, handling and analysis shall be performed under the supervision of an environmental professional in accordance with par. (c). The sediment manager may elect to use previous sampling results in lieu of new sediment sampling and analysis if the drainage area has not changed significantly since the sediment was last tested.

NR 528.06(3)(a) (a) Sample collection. Representative accumulated sediment samples shall be obtained by meeting all of the following criteria:

NR 528.06(3)(a)1. 1. Samples shall be obtained using proper handling, storage and delivery procedures required by the laboratory where the samples will be analyzed.

NR 528.06(3)(a)2. 2. Samples shall be obtained that are representative of the entire volume of sediment to be removed and managed using all of the following:

NR 528.06(3)(a)2.a. a. One sample shall be obtained in each surface acre or portion of a surface acre in storm water management structures that are 4 acres or less. This sample may consist of multiple samples composited together to obtain a representative sample.

NR 528.06(3)(a)2.b. b. At least one sample per quadrant shall be obtained when the storm water management structure is greater than 4 acres.

NR 528.06(3)(a)2.c. c. A greater number of samples shall be obtained when necessary to represent the variability in the sediment due to factors such as sediment transport within the structure, changes in land use in the drainage area and the duration of time during which the sediment has been accumulating.

NR 528.06(3)(a)2.d. d. Samples shall be taken to the depth of the anticipated sediment removal.

NR 528.06(3)(a)3. 3. Samples shall be obtained to provide a volume of sediment adequate to meet the analytical requirements based on the parameters to be analyzed for and the methods of analysis to be performed by the laboratory where the samples will be analyzed.

NR 528.06 Note Note: Additional information on how to perform sediment sampling can be found in existing USEPA Guidance for its Biosolids Rule, CFR Part 503. Please see Methods and Manner of Sampling. http://www.epa.gov/owm/mtb/biosolids/ 503pe/503pe_6.pdf

NR 528.06(3)(b) (b) Sample analysis. Samples collected in par. (a) shall be analyzed for all of the constituents in this paragraph. Constituents listed in subds. 3. and 5. shall be analyzed at a laboratory certified or registered in accordance with ch. NR 149:

NR 528.06(3)(b)1. 1. Percent solids, percent organic matter, electrical conductivity as a saturated paste and pH to provide information on physical characteristics.

NR 528.06(3)(b)2. 2. Total Kjeldahl nitrogen, total nitrate nitrogen, total phosphorus and total potassium to provide information on nutrient content. Nutrient content shall be expressed as mg/kg on a dry weight basis.

NR 528.06(3)(b)3. 3. Total arsenic, cadmium, copper, chromium, lead, nickel and zinc to ensure these are not present at elevated levels and as indicator parameters showing the potential presence of other heavy metals and possible need for additional sampling. Results shall be calculated on a dry weight basis.

NR 528.06(3)(b)4. 4. Pathogen or indicator organism, as referenced in ss. NR 204.06 (2) (b) 4. or 204.07 (6), showing the potential presence of other pathogens and possible need for additional pathogen sampling and analysis.

NR 528.06 Note Note: Effective with the incorporation of this rule, the current pathogen indicator organism is fecal coliform. The maximum allowable density is 1,000 expressed as MPN/gTS (most probable number per gram of total solids on a dry weight basis).

NR 528.06(3)(b)5. 5. Additional parameters beyond those required under subds. 1. to 4. if deemed necessary by the sediment manager based on all of the following factors:

NR 528.06(3)(b)5.a. a. The present and past land uses in the drainage area served by the storm water management structure such as commercial, multi-family residential, institutional and industrial.

NR 528.06(3)(b)5.b. b. Any other known or suspected sources of contamination.

NR 528.06(3)(b)5.c. c. Existing conditions or known historical events that may affect the likelihood of safe sediment management.

NR 528.06(3)(b)5.d. d. Reported hazardous substance spills under s. 292.11, Stats., in the drainage area since construction or since accumulated sediment was last removed.

NR 528.06(3)(b)5.e. e. Sample data indicating significantly elevated levels of contaminants above background concentrations for indicator parameters in subds. 3. and 4. that may affect management in s. NR 528.05.

NR 528.06(3)(b)5.f. f. Any other applicable administrative code requirements.

NR 528.06 Note Note: Additional parameters may include priority pollutants or TCLP constituents.

NR 528.06(3)(c) (c) Oversight. Sample collection and evaluation pursuant to this subsection shall be performed by or under the supervision of an environmental professional.