NR 538.06(5)(b)1. 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.

NR 538.06(5)(b)2. 2. A representative sample of each industrial byproduct shall be recharacterized in accordance with ch. NR 538 Appendix, Tables 1 and 2, at a minimum of 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.

NR 538.06(5)(c) (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 recertification request within 10 business days, the recertification is deemed complete and concurrence with the recharacterization is considered granted.

NR 538.06(6) (6) Initial applicability. A generator that submitted an initial certification prior to January 1, 2021, may submit a recharacterization and a hazardous waste determination under sub. (3) (b) 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 sub. (5) (b) 1.

NR 538.06 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (3) (c) Register January 2006 No. 601, eff. 2-1-06; corrections in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register February 2010 No. 650; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in numbering in (1) (b) made under s. 13.92 (4) (b) 1., Stats., and correction in (1) (a), (b) 3., (3) (b), (5) (c), (6) made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.08 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:

NR 538.08(1) (1) Contained or converted uses. All industrial byproducts, including select foundry sand, are eligible for contained or converted uses in accordance with provisions of s. NR 538.10 (1).

NR 538.08(2) (2) Geotechnical fill. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B, are eligible for use as geotechnical fill in accordance with the provisions of ss. NR 538.10 (2) and 538.12, except nonmetallic mine reclamation uses under s. NR 538.12 (2) (e), which must be designated by the department as a select foundry sand under s. NR 538.06 (3) (f) or determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column A.

NR 538.08(3) (3) Construction uses. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B, are eligible for construction uses in accordance with the provisions of s. NR 538.10 (3).

NR 538.08(4) (4) Unconfined uses. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B and Table 2 are eligible for unconfined uses in accordance with the provisions of s. NR 538.10 (4).

NR 538.08(5) (5) Soil or plant additives. Flue gas desulfurization materials that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 3, are eligible for use as soil and plant additives in accordance with the provisions of s. NR 538.10 (5). Industrial byproducts intended for use as agricultural liming additives that have been determined to contain less than the concentrations specified in Table 3 of s. NR 204.07 (5) (c) are eligible for use as soil or plant additives in accordance with the provisions of s. NR 538.10 (5).

NR 538.08(6) (6) Criteria and process for using eligibility standards.

NR 538.08(6)(a) (a) If a standard for a parameter listed in ch. NR 538 Appendix is above the limit of detection and the limit of quantitation, the standard shall be considered exceeded if the parameter is reported at or above the standard.

NR 538.08(6)(b) (b) If a standard for a parameter listed in ch. NR 538 Appendix is between the limit of detection and the limit of quantitation, inclusive, the standard shall be considered exceeded if the parameter is reported at or above the limit of quantitation.

NR 538.08(6)(c) (c) The following applies when a standard for a parameter listed in ch. NR 538 Appendix is below the lowest achievable limit of detection:

NR 538.08(6)(c)1. 1. If a parameter is not detected in a sample, the standard shall be considered to have been met.

NR 538.08(6)(c)2. 2. If a parameter is reported at or above the limit of detection but below the limit of quantitation, a confirmation analysis shall be conducted. The standard shall be considered exceeded if the presence of that parameter has been confirmed by the use of an appropriate analytical method as determined by the department.

NR 538.08(6)(c)3. 3. If a parameter is reported at or above the limit of quantitation, the standard shall be considered exceeded.

NR 538.08 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (3) and (7) Register January 2006 No. 601, eff. 2-1-06; corrections in (1) to (5), (6) (a) to (c) made under s. 13.93 (2m) (b) 7., Stats., Register April 2013 No. 688; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in (intro.) made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.09 NR 538.09 Case-specific approvals. The department may review the characterization results for an industrial byproduct not defined in s. NR 538.03 (8) in response to a request from the generator and may, on a case-specific basis, approve a beneficial use or uses for that material or conditionally approve a beneficial use that does not meet the beneficial uses or standards specified in this chapter. The department may require additional information prior to a case-specific approval. Any exemption or approval granted under this section shall be in accordance with the applicable requirements of s. 289.43 (4), (7) and (8), Stats. If the department determines that the industrial byproduct material falls under the s. NR 538.03 (8) (b) or (c) exclusions or the proposed use does not meet the definition of a beneficial use under s. NR 538.03 (2), approval for use or disposal must be obtained through the applicable provisions under ss. NR 500 to 528.

NR 538.09 History History: CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.10 NR 538.10 Eligible beneficial uses. All uses of industrial byproducts shall meet all applicable structural and physical specifications and generally accepted engineering practices for the use. Under this chapter, the eligible beneficial uses of industrial byproducts that may be exempt from licensing under s. 289.31, Stats., and the regulatory requirements under chs. NR 500 to 528 include any of the following:

NR 538.10(1) (1) Contained or converted uses. Uses that are fully contained within a licensed, engineered disposal facility, are encapsulated within a matrix material, are burned for fuel, or are converted into a product, including any of the following:

NR 538.10(1)(a) (a) Encapsulated uses. Products that may meet these criteria include cement, lightweight aggregate, structural or ornamental concrete or ceramic materials, portland cement concrete pavement, asphaltic concrete pavement, slurry seals, roofing materials, plastics, paint, fiberglass, mineral wool, wallboard, plaster and other products approved in writing by the department.

NR 538.10(1)(b) (b) Agents for physical or chemical stabilization, solidification or other treatment of solid waste that is to be disposed of at a licensed, engineered disposal facility or utilized in some other final use approved in writing by the department.

NR 538.10(1)(c) (c) Supplemental material used for fuel or to assist air pollution control during the process of combustion for energy production.

NR 538.10(1)(d) (d) Daily cover or internal structures at licensed, approved landfills having a liner and leachate collection system. The industrial byproducts used for this purpose may not contain free liquids. The industrial byproducts beneficially used at landfills for alternate daily cover in accordance with s. NR 506.055 may contain no more than 15% silt and clay sized materials as determined by their P200 content and may not be placed in layers greater than 6 inches thick. Any uses under this paragraph shall be subject to the conditions of the plan of operation and any other applicable solid waste approvals associated with the landfill.

NR 538.10(2) (2) Geotechnical fill. Geotechnical fill material meeting the project criteria and uses specified in this subsection and s. NR 538.12 where applicable. If more than 5,000 cubic yards are to be used in an individual project, prior written notification in accordance with s. NR 538.14 (5) and concurrence by the department under s. NR 538.14 (6) are required unless the specific concurrence requirements in par. (b) or (f) apply. Industrial byproducts shall be used in accordance with best management practices. The criteria and uses under this subsection are as follows:

NR 538.10(2)(a) (a) Subgrade fill for the construction of commercial, industrial or non-residential institutional buildings. Industrial byproducts used as subgrade fill for the construction of commercial, industrial, or non-residential institutional buildings shall have placement of the concrete floor or frostwalls completed as soon as practical after placement of the fill material in accordance with s. NR 538.12 (4). Any area where industrial byproducts are not directly beneath the building shall be sloped to prevent ponding of water, covered with 2 feet of native soil including a minimum of 4 inches of topsoil, and seeded or otherwise covered as approved by the department in writing. Cover shall be placed over fill material as soon as practical after byproduct placement. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline. The use of industrial byproducts as subgrade fill in the construction of residential buildings is prohibited.