Chapter NR 538

NR 538.14(2) (2) Recharacterization. Each generator of industrial byproducts that have been beneficially used under this chapter, operator of a non-exempt storage facility for industrial byproducts as required under s. NR 538.16 (1) (a), or the designee of the generator or operator, shall submit recertification information used to determine the eligible use of each industrial byproduct, electronically or on a form supplied by the department, every 4 years or after a process change in accordance with s. NR 538.06 (5). The recertification form shall be submitted to the department no later than 60 days following the receipt of the analytical testing results which indicate a potential reassignment of the eligible uses for any industrial byproduct. Analytical testing results that confirm the eligible uses assigned during the initial certification or the previous recharacterization may be submitted with the annual certification under sub. (3). The recertification form shall include all of the following information:

NR 538.14(2)(a) (a) The name and address of the generator or storage facility operator.

NR 538.14(2)(b) (b) The name, address, and telephone number of the designated generator or storage facility operator contact.

NR 538.14(2)(c) (c) A description of each industrial byproduct intended for beneficial use or storage that clearly identifies the process and location of the generating facility.

NR 538.14(2)(d) (d) Documentation, including analytical testing results, supporting the eligible use classifications as specified under s. NR 538.08.

NR 538.14(2)(e) (e) Certification by the generator, or the generator’s designee, or the storage facility operator, or the operator’s designee, that the information on the form is true and accurate.

NR 538.14(3) (3) Annual certification. Each generator of industrial byproducts that have been beneficially used under this chapter, operator of a non-exempt storage facility for industrial byproducts as required under s. NR 538.16 (1) (a), or the generator’s or operator’s designee, shall submit an annual certification, electronically or on a form supplied by the department, that documents the amount of material beneficially used for each eligible use in the previous calendar year and confirms the proper use of each industrial byproduct. The certification form shall be submitted no later than April 1 of the year following the reporting period. The annual certification form shall include all of the following information:

NR 538.14(3)(a) (a) The name and address of the generator or storage facility operator.

NR 538.14(3)(b) (b) The name, address, and telephone number of the designated generator or storage facility operator contact.

NR 538.14(3)(c) (c) A description of each industrial byproduct intended for beneficial use or storage that clearly identifies the process and location of the generating facility.

NR 538.14(3)(d) (d) The volume of each industrial byproduct that was beneficially used during the reporting period, identified by types of beneficial uses under s. NR 538.10. If the industrial byproduct was given or sold to an entity other than the generator for subsequent use or distribution, the name and address of the recipient shall be listed along with the volume the recipient received and the intended beneficial uses.

NR 538.14(3)(e) (e) For non-exempt storage facilities, the volume of each industrial byproduct that was in storage as of December 31 of the reporting year.

NR 538.14(3)(f) (f) Documentation, including test results, supporting any required recharacterization as specified in s. NR 538.06 (5). A non-exempt storage facility under s. NR 538.16 (1) (a) shall provide the name and address of the generators of the industrial byproducts to be stored unless the storage facility is located at the industrial byproduct generating facility.

NR 538.14(3)(g) (g) A summary of the performance, problems, and maintenance associated with any storage facilities in accordance with s. NR 538.16 (1) (a) 2.

NR 538.14(3)(h) (h) Certification by the generator, or the generator’s designee, or storage facility operator, or the operator’s designee, that the information on the form is true and accurate, and that the performance standards of s. NR 538.04 have been met.

NR 538.14 Note Note: Copies of the annual certification 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 538.14(4) (4) Exemption. Subsection (2) does not apply if the volume of the generator’s industrial byproducts beneficially used, or stored for future use, during the reporting period was less than 1,000 cubic yards.

NR 538.14(5) (5) Notification. Each generator, or a person designated by the generator such as a broker, shall submit written notification to the department prior to initiating a project when required under ss. NR 538.10 (2) and NR 538.12. All of the following information shall be included in the notification:

NR 538.14(5)(a) (a) The name, address, and phone number of the contact for the project.

NR 538.14(5)(b) (b) The location of the project and a site description, including a topographic or orthophoto map, township and range to the quarter section, and land use information. In addition, the applicant shall submit geographic information system locational information based on no fewer than 6 geographically informative points that define the limits of industrial byproduct placement. These points shall be collected using the North American Datum, NAD83 (1991). For each point, the longitude and latitude shall be referenced to the 5th decimal degree. The date, method, and tools used to collect locational information for each point shall also be included. Other methods of geolocation that provide similar or better accuracy are also acceptable, subject to approval by the department.

NR 538.14(5)(c) (c) The approximate volume of industrial byproduct anticipated to be used in the project.

NR 538.14(5)(d) (d) The anticipated start and end dates for the project and the timing of any phasing.

NR 538.14(5)(e) (e) Identification of the types and generators of the industrial byproducts to be used and the eligible uses of these materials.

NR 538.14(5)(f) (f) Information demonstrating that the proposed project will meet the performance standards and beneficial use specifications of this chapter.

NR 538.14(5)(g) (g) For those beneficial uses listed in s. NR 538.10 (2) that exceed 5,000 cubic yards, the method and the data used to determine the groundwater separation distance.

NR 538.14(5)(h) (h) A copy of the property owner notification form required under s. NR 538.22.

NR 538.14(5)(i) (i) For those beneficial uses subject to the public notification requirement under s. NR 538.18, proof that a public notice was placed in the local newspaper in accordance with s. NR 538.18 (1) (a).

NR 538.14 Note Note: Proof of a public notice may include a copy of the notice clipped from the newspaper along with the date it was published or any other notification verifying that an order for the public notice was placed with the newspaper and the expected date of publication.

NR 538.14(6) (6) Concurrence. For proposed projects that require submission of a written notification, the department shall reply with a written concurrence within 10 business days provided the applicant meets the applicable criteria of this chapter. If the department determines that the proposal does not demonstrate that the project will meet the applicable criteria, the department shall provide a written notice of non-concurrence within 10 business days, noting any deficiencies and allowing the applicant an opportunity to correct them or provide additional information. If the department does not respond to the notification within 10 business days, concurrence is considered granted.

NR 538.14(7) (7) Modifications. Any generator, or the generator’s designee, that wishes to modify a project for which the department granted concurrence under sub. (6) shall notify the department in writing describing the nature of the modification requested. In determining if a modification is required, the applicant shall consider if the proposed modification alters the original project footprint, substantially increases the volume of the byproduct material, or has the potential to affect any of the performance standards under s. NR 538.04. The department shall review the modification request and notify the applicant in writing if submission of a revised notification under sub. (5) is required. If the department does not respond to the notification within 10 business days, the modification is deemed complete and concurrence is considered granted.

NR 538.14(8) (8) Record keeping. The generator, or the generator’s designee, shall maintain records of where industrial byproducts have been utilized under this chapter for one or more of the beneficial uses described under s. NR 538.10 (2). These records shall be maintained and be accessible to department staff upon request for 5 years after the use of the industrial byproduct.

NR 538.14 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (4) (intro.), cr. (4) (f) Register January 2006 No. 601, eff. 2-1-06; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in (2) (intro.), (4), (5) (g) made under s. 35.17, Stats., Register May 2020 No. 773; correction in (1) (d), (2) (intro.), (d), (3) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register February 2021 No. 782; correction in (3) (f), (g) made under s. 13.92 (4) (b) 7., Stats., Register August 2022 No. 800.

NR 538.16 NR 538.16 Storage and transportation requirements.

NR 538.16(1) (1) Storage.

NR 538.16(1)(a) (a) Storage of industrial byproducts for beneficial use shall meet the performance standards specified in s. NR 538.04. Storage facilities shall also satisfy all of the following:

NR 538.16(1)(a)1. 1. The storage facility shall meet all of the following design and operational criteria:

NR 538.16(1)(a)1.a. a. Areas intended for the storage of industrial byproducts that have been determined to contain greater than the concentrations specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B shall incorporate an impervious surface pad and be surrounded by curbs or berms to control surface water run-on and run-off. Alternately, if a low permeability clay surface is used, it shall include a protective material cover of, at a minimum, one foot of gravel or an equivalent material over the clay. Areas intended for the storage of byproducts that have been determined to contain less than the concentrations specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B shall construct a surface pad beneath the storage pile consisting of either an impervious surface, compacted soil, or an aggregate surface with a minimum one-foot thickness or an equally effective design as approved by the department in writing.

NR 538.16(1)(a)1.b. b. Storage facilities shall be operated and maintained to minimize dust, off-site tracking, and storm water runoff. The storage area shall be clearly delineated and lined on 3 sides with curbs, blocks or berms designed to prevent spillage and contain the byproduct to the designated storage area. A setback shall be maintained between the stored material and the entrance to the storage area to prevent spillage of material and to reduce off-site tracking.

NR 538.16(1)(a)2. 2. The operator of the storage facility shall provide the department an annual certification in accordance with s. NR 538.14, including a summary of the storage facility performance, problems, and maintenance in the annual certification under s. NR 538.14 (3) (g) and an affirmation that the impervious or low permeability surface pad, if required, still meets the design criteria specified in subd. 1. a.

NR 538.16(1)(a)3. 3. Upon closure of an industrial byproduct storage facility, the storage operator shall remove all visible residues from the storage area.

NR 538.16(1)(b) (b) All of the following industrial byproduct storage facilities are exempt from the requirements of this subsection:

NR 538.16(1)(b)1. 1. Facilities for the storage of industrial byproducts contained within enclosed structures such as buildings, silos, or roll-off boxes.

NR 538.16(1)(b)2. 2. Facilities for the storage of industrial byproducts within a lined area at a licensed engineered landfill. Storage of industrial byproducts at a licensed engineered landfill shall be subject to the conditions of the plan of operation and any other applicable solid waste approvals associated with the landfill.

NR 538.16(1)(b)3. 3. Municipal maintenance and storage facilities that stockpile no more than 300 cubic yards of industrial byproduct material at any given time. The stored material shall be contained by perimeter berms or curbs. These facilities shall be operated and maintained to minimize dust, minimize off-site tracking, and manage storm water runoff.

NR 538.16(1)(b)4. 4. Facilities for the temporary off-site storage or staging of industrial byproducts to be used beneficially in accordance with s. NR 538.10. These temporary facilities shall be operated and maintained to minimize dust, off-site tracking, and storm water runoff, and limit public access. Industrial byproducts may not remain in temporary off-site storage or staging areas for more than 16 months after the date of their placement. These facilities shall provide to the department written notice of the storage location, the date on which the storage of materials began, and the total volume stored.

NR 538.16(1)(b)5. 5. Facilities for which the department issues an exemption on a case-specific basis in accordance with s. NR 538.09.

NR 538.16 Note Note: The discharge of stormwater is regulated under ch. NR 216.

NR 538.16(2) (2) Transportation. A vehicle or container used to transport industrial byproducts intended for beneficial use shall meet all of the following criteria:

NR 538.16(2)(a) (a) The vehicle or container shall be designed and built to be durable and leak-proof and maintained to prevent nuisance conditions from occurring.

NR 538.16(2)(b) (b) The vehicle or container shall be loaded and hauled in such a manner that the contents do not fall, spill, or leak, including the use of covers as necessary. Any spilled industrial byproduct shall be properly recovered.

NR 538.16 Note Note: Storage and transportation of industrial byproduct in accordance with this chapter are exempt from the storage and transportation requirements of ch. NR 502 as specified in ss. NR 502.05 (3) (i) and 502.06 (2) (k).

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.