NR 538.04 NR 538.04 Performance standards. No person may store, handle or beneficially use an industrial byproduct in a manner that may cause any of the following:

NR 538.04(1) (1) A significant adverse impact on wetland water quality standards as provided under ch. NR 103.

NR 538.04(2) (2) A take of an endangered or threatened species or other activity prohibited under s. 29.604, Stats.

NR 538.04(3) (3) A detrimental effect on any surface water quality standard as provided in s. NR 102.03 (7).

NR 538.04(4) (4) A detrimental effect on groundwater quality or will cause or exacerbate an attainment or exceedance of any preventive action limit or enforcement standard at a point of standards application as defined in ch. NR 140.

NR 538.04(5) (5) The migration and concentration of explosive gases in any structures, or in the soils or air at or beyond the project property boundary in excess of 25% of the lower explosive limit for the gases at any time.

NR 538.04(6) (6) The emissions of any hazardous air contaminant exceeding the limitations for those substances contained in s. NR 445.03.

NR 538.04 Note Note: The emissions of particulates and volatile organic compounds are regulated under s. NR 415.03 and chs. NR 419 to 424.

NR 538.04(7) (7) A discharge of pollutants carried by storm water exceeding any applicable permit requirements or standards under ch. NR 216.

NR 538.04 Note Note: The placement of materials in a floodplain where an obstruction to flood flows or an increase in regional flood event or an adverse affect upon a drainage course is regulated under ch. NR 116.

NR 538.04 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: am. (2) Register January 2006 No. 601, eff. 2-1-06; CR 19-080: am. (1), (3), cr. (7) Register May 2020 No. 773, eff. 11-1-20.

NR 538.05 NR 538.05 Solid waste rules exemption.

NR 538.05(1) (1) General. Persons who generate, use, transport, or store industrial byproducts that are characterized and beneficially used in compliance with this chapter are exempt from licensing under s. 289.31, Stats., and the regulatory requirements in chs. NR 500 to 528.

NR 538.05(2) (2) Existing exemptions. This chapter does not abrogate, rescind or terminate an approval or grant of exemption that was issued under s. 289.43 (7) or (8), Stats. Nothing in this subsection limits the authority of the department to modify, terminate or rescind any approval or grant of exemption as provided by law.

NR 538.05 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register February 2010 No. 650; CR 19-080: am. Register May 2020 No. 773, eff. 11-1-20.

NR 538.06 NR 538.06 Industrial byproduct characterization.

NR 538.06(1) (1) General.

NR 538.06(1)(a) (a) Industrial byproducts that are beneficially used under this chapter shall be characterized, as specified in this section, to determine their eligible uses under s. NR 538.10. A generator, or the generator’s designee, shall report the results of this characterization to the department as specified in s. NR 538.14 (1). The department shall reply with a written concurrence within 10 business days provided the applicant meets the applicable criteria of this chapter. The department has the option of concurring with the characterization, requesting additional information or analysis, determining that a case-specific approval under s. NR 538.09 is required, or issuing a non-concurrence decision. If the department does not respond to a certification request within 10 business days, the certification is deemed complete and concurrence is considered granted. The department may approve eligible uses for industrial byproducts that do not meet the listed characterization criteria on a case-specific basis in accordance with s. NR 538.09.

NR 538.06(1)(b) (b) For those materials not explicitly listed in, and which are subject to the requirements of the “Other” materials column of ch. NR 538 Appendix Tables 1 and 2, the department may do any of the following:

NR 538.06(1)(b)1. 1. Exempt the requirement to analyze for certain parameters on a material-specific basis.

NR 538.06(1)(b)2. 2. Require analysis for additional parameters on a material-specific basis in order to demonstrate compliance with performance standards identified at s. NR 538.04.

NR 538.06(1)(b)3. 3. Require the applicant submit a testing program plan, which the department must approve in writing prior to commencement of characterization.

NR 538.06(2) (2) Initial characterization. A representative sample of each industrial byproduct shall be properly characterized prior to beneficial use to determine its eligible uses under s. NR 538.10. Samples shall be obtained at the point of accumulation nearest to where the byproduct is generated. A case-specific approval under s. NR 538.09 may be required by the department if the byproduct is subject to any deliberate post-accumulation processing, excluding mechanical size reduction or sorting and the application of water to improve handling or as dust suppression.

NR 538.06(3) (3) Characterization methods.

NR 538.06(3)(a) (a) General. The limits of detection used in the characterization shall be at or below the concentrations listed in ch. NR 538 Appendix, Tables 1 to 3 for each parameter. When a limit of detection at or below a standard is not achievable, the method that will achieve the lowest detection limit shall be used. All material sampling, total elemental analyses, and analyses of elutriate from leach testing shall be performed using EPA SW-846 methods, unless alternate methods are otherwise approved by the department in writing. The generator shall report the limit of detection and the limit of quantitation with the sample results. If a substance is detected below the limit of quantitation, the detected value with the appropriate qualifier shall be reported.

NR 538.06(3)(b) (b) Hazardous waste determination. All industrial byproducts that are to be beneficially used under this chapter shall first be determined not to be a hazardous waste, as defined under s. NR 660.10 (52), using a method specified under ch. NR 662.011. The generator shall provide supporting documentation of the waste determination along with the initial certification submitted to the department as specified in sub. (1).

NR 538.06 Note Note: Supporting documentation may include representative sampling and analysis, safety data sheets, published information, process flow diagrams, profiles developed from the prior handling of industrial byproducts, or supported process knowledge.

NR 538.06(3)(c) (c) Water leach test. All industrial byproducts, except byproducts to be used as a soil or plant additive in accordance with s. NR 538.10 (5), shall be analyzed using ASTM D3987-12 water leach test as specified in ch. NR 538 Appendix, Table 1.

NR 538.06(3)(d) (d) Bulk analysis. All industrial byproducts, except byproducts to be used as a soil or plant additive in accordance with s. NR 538.10 (5), shall be analyzed using a bulk analysis for the parameters in ch. NR 538 Appendix, Table 2, unless another analytical method is approved by the department in writing.