NR 538.10 NoteNote: Best management practices under this paragraph may include ASTM D7765-18a when foundry sand is used for structural fill or embankments, ASTM E2277-14 for the use of coal ash in structural fills, Wisconsin department of transportation specifications for highway and structure construction, or other established engineering construction standards and practices appropriate for the project.

NR 538.10(3)(3) Construction uses. Construction uses in accordance with the project criteria and uses specified in this subsection. Industrial byproducts used in this subsection may not be placed within areas of permanent standing water or areas that need to be dewatered prior to placement due to groundwater infiltration. Construction uses include any of the following:

NR 538.10(3)(a)(a) Subgrade fill for the construction of a paved federal, state, or municipal roadway. Industrial byproducts placed as part of construction of a paved federal, state or municipal roadway may not extend beyond the subgrade shoulder point and the depth of the fill may not exceed 4 feet, except for incidental sections of the fill. Any area where industrial byproducts are not directly beneath the pavement structure shall be sloped to prevent ponding of water, covered with base course or native soil, including topsoil, and seeded as soon as practical after placement of the industrial byproduct. Placement of the pavement structure shall be completed as soon as practical after placement of the fill material. For fills greater than 4 feet in depth, the design shall adhere to the criteria specified in sub. (2) (e). The use of industrial byproducts as paved roadway subgrade fill is prohibited in residential areas, unless used in a roadway designed with a rural type cross-section without curbs and gutters.

NR 538.10(3)(b)(b) Base aggregates for the construction of commercial, industrial and non-residential institutional building slabs and paved infrastructure. Industrial byproducts used as base aggregates for the construction of commercial, industrial, and non-residential institutional building slabs and paved infrastructure including parking lots, access roads, and federal, state and municipal roadways shall meet the project specified physical properties of the Wisconsin department of transportation Section 301 standard specifications for base aggregates unless otherwise approved by the department in writing. The use of industrial byproducts as base aggregates under this paragraph is prohibited in residential areas, unless used in a roadway designed with a rural type cross-section without curbs and gutters.

NR 538.10(3)(c)(c) Utility trench backfill. Industrial byproducts used to backfill a utility trench constructed for the placement of a sanitary or storm sewer, a non-potable water line, a gas main, or telecommunications, electrical or other utility lines shall be covered by a paved roadway, parking lot or other portland cement concrete or asphaltic concrete paved structure and may not extend more than 4 feet beyond the pavement structure. Any area where industrial byproducts are not directly beneath the pavement structure shall be sloped to prevent ponding of water, topsoiled, and seeded as soon as practical after placement of the industrial byproduct.

NR 538.10(3)(d)(d) Abandonment of tanks, vaults, or tunnels. Industrial byproducts may be beneficially used for the abandonment of tanks, vaults or tunnels that will completely contain the industrial byproduct. This use does not include the placement of an industrial byproduct in a location where environmental pollution has been identified unless it is specified in a plan approval by the department.

NR 538.10(3)(e)(e) Slabjacking material. Industrial byproducts used as a component in a slabjacking material in combination with portland cement, lime, or bentonite shall be placed beneath portland cement concrete paved structures to raise areas that have settled. The slabjacking material shall be placed directly from an enclosed transport vehicle. Projects using more than 2 cubic yards of industrial byproduct as a slabjacking material are prohibited in residential areas.

NR 538.10(3)(f)(f) Soil and pavement stabilization. Coal combustion fly ash used as soil and pavement base stabilization for structural improvements shall be used in accordance with ASTM C618-15 or the Wisconsin department of transportation specifications for highway and structure construction, or other good engineering practices acceptable to the department. The use of industrial byproducts as soil and pavement base stabilization is allowed in residential areas for those beneficial uses specified in par. (a) if approved by the local unit of government with jurisdiction over the roadway.

NR 538.10 NoteNote: ASTM C618-15 is the American society for testing and materials ”Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use in Concrete.” Copies of this test procedure can be obtained from ASTM International at https://www.astm.org/Standards/C618.htm. Copies of the standard are also available for inspection at the offices of the department of natural resources and the legislative reference bureau.

NR 538.10(3)(g)(g) Controlled low strength material. Industrial byproducts incorporated into controlled low strength material for structural improvements, commonly referred to as flowable fill, shall be used in accordance with ACI 229R-13, the Wisconsin department of transportation specifications for highway and structure construction, or other good engineering practices acceptable to the department.

NR 538.10 NoteNote: ACI 229R-13 is the American Concrete Institute report “Controlled Low Strength Materials.” Copies of this report can be obtained at https://www.concrete.org. Copies of this report are also available for inspection at the offices of the department of natural resources and the legislative reference bureau.

NR 538.10(3)(h)(h) Bonded surface course material. Industrial byproducts used as a bonded surface course such as seal coats and chip seals in paved federal, state or municipal roadways, commercial and private roadway or parking surfaces, driveways, airport runways, and trails shall conform to the Wisconsin department of transportation standard specifications for highway and structure construction applicable to asphaltic pavements, including limitations on the percentage of material passing the P200 sieve and application rates. Within 48 hours of application of the industrial byproduct, the surface shall be rolled to thoroughly embed these materials into the asphaltic mastic and, within one week of application, the surface shall be swept to remove any loose excess material.

NR 538.10(4)(4) Unconfined uses. Unconfined uses that are not contained, encapsulated, or covered by either 2 feet of soil or an impervious surface and meet the project criteria and uses specified in this subsection. Unconfined uses include any of the following:

NR 538.10(4)(a)(a) Unbonded surface course material. Industrial byproducts used as an unbonded surface course shall conform to the requirements of Wisconsin department of transportation standard specifications for highway and structure construction applicable to base materials and may be placed at a cumulative thickness of 6 inches or less and in areas separated by at least a 25-foot vegetated buffer to a navigable surface water. This includes the use of industrial byproducts as a surface course material in unpaved driveways, road shoulders, farm lanes, parking areas, and recreation or exercise trails. The use of industrial byproducts as unbonded surface course is prohibited in residential areas.

NR 538.10(4)(b)(b) Winter weather road abrasive on roadways with a rural cross-section. Winter road abrasives using industrial byproducts, wholly or as part of a mixture of abrasives and de-icing compounds, shall meet Wisconsin department of transportation gradation and application rate recommendations for winter highway maintenance contained in the state highway maintenance manual. The use of industrial byproducts as winter road abrasives is restricted to use on roadways designed with a rural type cross-section with only incidental sections of curbs and gutters.

NR 538.10(4)(c)(c) Manufactured soil blends. Manufactured soil blends with the mineral component derived from spent silica-based foundry sand from iron, steel, and aluminum foundries shall be comprised of no more than 50% spent foundry sand by weight and intended for use as a commercial or consumer product. Soil blends that incorporate industrial byproducts other than foundry sand or solid waste material shall be approved under the case-specific provisions specified in s. NR 538.09.

NR 538.10(5)(5) Soil or plant additives derived from flue gas desulfurization or lime-bearing industrial byproducts. Flue gas desulfurization or lime-bearing industrial byproducts used as soil or plant additives shall be managed, applied and licensed in accordance with subch. II of ch. ATCP 40 or ch. ATCP 41. Prior to use, initial certification, and concurrence by the department in accordance with s. NR 538.06 is required. In addition to the certification information, the applicant shall demonstrate, as part of the required written notification, all of the following:

NR 538.10(5)(a)(a) The industrial byproduct, as demonstrated through research projects approved under s. NR 518.04 (2) or previously published research, has value as a soil or plant additive and will not result in detrimental effects to the soil or vegetation at the rates and mixtures proposed. If the additive is part of a mixture, the physical and chemical nature of the other materials in the mixture and the relative percentages of each material shall be described in the submittal.

NR 538.10(5)(b)(b) The industrial byproduct or byproduct mixture will not be applied at rates such that excessive accumulation of hazardous substances occurs in soil or vegetation, cause a detrimental effect on surface water quality, or cause a detrimental effect on groundwater quality that would result in an exceedance of the groundwater quality standards specified in s. NR 140.

NR 538.10(5)(c)(c) The industrial byproduct or byproduct mixture will be applied in accordance with accepted agricultural practices.

NR 538.10(5)(d)(d) Industrial byproducts that are intended for use as agricultural liming materials, as defined under s. 94.66 (1) (am), Stats., meet the requirements of ch. ATCP 41 and do not contain contaminant concentrations exceeding the values listed in Table 3 of s. NR 204.07 (5) (c).

NR 538.10(5)(e)(e) Flue gas desulfurization material intended for use as an agricultural soil amendment does not contain contaminant concentrations exceeding the values listed in ch. NR 538 Appendix, Table 3, and will not be applied in volumes exceeding the maximum recommended application rates as determined by the Wisconsin department of agriculture, trade and consumer protection.

NR 538.10 NoteNote: USDA Code 333 is the guidance document “Amending Soil Properties with Gypsum Products,” published as Natural Resources Conservation Service Conservation Practices Standard Code 333 (333-CPS-1), June 2015, and is available through the U.S. department of agriculture website: https://www.usda.gov/.

NR 538.10 NoteNote: Copies of Wisconsin department of transportation specifications for highway and structure construction and the state highway maintenance manual are available for inspection at the offices of the department of transportation, department of natural resources and the legislative reference bureau.

NR 538.10 NoteNote: 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 538.10 HistoryHistory: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (5) (a) to (d), (f), (7) (b), (8) to (10), renum. (11) and (12) to be (12) and (13) and am., cr. (5) (h), (i) and (11) 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 (3) (b) made under s. 13.92 (4) (b) 7., Stats., and correction in (2) (b), (f) 5., (5) (intro.) made under s. 35.17, Stats., Register May 2020 No. 773.