NR 538.03(4) (4) “Industrial byproduct" means papermill sludge, ash from energy recovery including coal ash and slag, material captured in flue gas desulfurization systems, ferrous and steel foundry excess system sand and slag, lime kiln dust or non-hazardous solid waste with similar characteristics as determined by the department.
NR 538.03(5) (5) “Lime kiln dust" means the material recovered for air pollution control systems that capture emissions from lime kilns.
NR 538.03(6) (6) “Residential area" means properties that are zoned as residential, are in areas planned for residential zoning under a master plan approved or adopted by a local municipal authority or an area within 100 feet of a human residence.
NR 538.03(7) (7) “Subbase" means the layer or layers of specified or selected material placed on a subgrade to support a base course.
NR 538.03(8) (8) “Subgrade" means the top soil surface upon which a subbase or base course are placed.
NR 538.03(9) (9) “Subgrade fill" means the layer or layers of material placed above the natural ground surface to achieve a subgrade.
NR 538.03(10) (10) “Unconfined geotechnical fill" means a fill that is covered by native soils.
NR 538.03 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 05-020: renum. (2) to (6) to be (4) and (6) to (9) and am. (4) and (6), cr. (2), (3), (5) and (10) Register January 2006 No. 601, eff. 2-1-06.
NR 538.04 NR 538.04Performance 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 wetlands.
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.
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 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 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 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.
NR 538.05 NR 538.05Solid 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 538.
NR 538.05(2) (2)Existing exemptions. This chapter does not abrogate, rescind or terminate an approval or grant of exemption in effect on January 1, 1998 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.
NR 538.06 NR 538.06Industrial byproduct characterization.
NR 538.06(1)(1)General. Industrial byproducts that are beneficially used under this chapter shall be characterized as specified in this section to determine their appropriate categorization under s. NR 538.08. The results of this characterization shall be reported to the department as specified in s. NR 538.14. The testing program for materials not specifically listed in tables 1A to 3 shall be approved by the department prior to characterization. For those materials not listed in tables 1A to 3 the department may modify the list of parameters required to be analyzed for and may establish standards on a material specific basis for additional parameters.
NR 538.06(2) (2)Initial characterization. A representative sample of an industrial byproduct shall be properly characterized prior to beneficial use to determine its category under s. NR 538.08.
NR 538.06(3) (3)Characterization methods.
NR 538.06(3)(a)(a) The limits of detection used in the characterization shall be at or below the concentration listed in tables 1A to 3 for each parameter for the specific target category where possible. When a limit of detection at or below a target category standard is not achievable, or if no concentration is listed, 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 otherwise approved by the department. The limit of detection and the limit of quantitation shall be reported 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) All industrial byproducts that are to be beneficially used under this chapter shall be determined not to be a hazardous waste as defined under s. NR 660.10 (52) using a method specified under ch. NR 661.
NR 538.06(3)(c) (c) All industrial byproducts which are characterized to determine eligibility for category 1 to 4 under s. NR 538.08 (1) to (4) shall be analyzed using ASTM D3987-85 water leach test.
NR 538.06(3)(d) (d) All industrial byproducts which are characterized to determine eligibility for category 1 or 2 under s. NR 538.08 (1) or (2) shall be analyzed using a total elemental analysis, unless another analysis method is approved by the department.
NR 538.06 Note Note: Copies of EPA SW-846 test methods are available at no cost at https://www.epa.gov/hw-sw846/basic-information-about-how-use-sw-846#UseWhich. Copies of the test methods are available for inspection at the offices of the Department of Natural Resources, the Secretary of State and the Legislative Reference Bureau. Copies may be obtained from the superintendent of documents, U.S. government printing office, P.O. Box 371954, Pittsburgh, PA 15250-7954, (866) 512-1800, www.gpo.gov. Copies may also be obtained from the National Technical Information Service, U.S. Department Of Commerce, 5285 Port Royal Road, Springfield, VA 22161, (800) 553-6847, www.ntis.gov.
NR 538.06 Note Note: ASTM-D3987-85 is the American society for testing and materials “Test Method for Shake Extraction of Solid Wastes with Water." Copies of the ASTM standard may be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, (610) 832-9585, www.astm.org. Copies of the standard are available for inspection at the offices of the Department of Natural Resources, the Secretary of State and the Legislative Reference Bureau.
NR 538.06(4) (4)Recharacterization.
NR 538.06(4)(a)(a) Industrial byproducts that are beneficially used under this chapter shall be recharacterized after the initial characterization in accordance with this section, unless the department approves an alternative recharacterization method. 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 result in a change of the category of the industrial byproduct.
NR 538.06(4)(b) (b) A representative sample of each category 1 industrial byproduct shall be recharacterized in the same manner as specified for the initial characterization once each year. Recharacterization is not required for any category 1 industrial byproduct of which less than 1000 cubic yards were beneficially used or stored for beneficial use in the previous year.
NR 538.06(4)(c) (c) A representative sample of each category 2 industrial byproduct shall be recharacterized in the same manner as specified for the initial characterization once every 2 years. Recharacterization is not required for any category 2 industrial byproduct of which less than 2000 cubic yards were beneficially used or stored for beneficial use during the previous 2-year period.
NR 538.06(4)(d) (d) A representative sample of each category 3 industrial byproduct shall be recharacterized in the same manner as specified for the initial characterization once every 3 years. Recharacterization is not required for any category 3 industrial byproduct of which less than 3000 cubic yards were beneficially used or stored for beneficial use during the previous 3-year period.
NR 538.06(4)(e) (e) A representative sample of each category 4 industrial byproduct shall be recharacterized in the same manner as specified for the initial characterization once every 5 years. Recharacterization is not required for any category 4 industrial byproduct of which less than 5000 cubic yards were beneficially used or stored for beneficial use in the previous 5-year period.
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.
NR 538.08 NR 538.08Industrial byproduct categories. The categories of industrial byproducts, characterized in accordance with s. NR 538.06, for beneficial use under this chapter are as follows:
NR 538.08(1) (1)Category 1 industrial byproducts. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Tables 1A and 1B, are category 1 industrial byproducts.
NR 538.08(2) (2)Category 2 industrial byproducts. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Tables 2A and 2B, and are not category 1 industrial byproducts are category 2 industrial byproducts. If in the total elemental analysis total polyaromatic hydrocarbons exceed 100 mg/kg, department concurrence is necessary prior to classification as a category 2 industrial byproduct. Unless authorized by the department the total elemental analysis for industrial byproducts not listed in Table 2B shall also include aluminum, antimony, barium, boron, cadmium, hexavalent chromium, cobalt, copper, lead, mercury, molybdenum, nickel, phenol, selenium, silver, strontium, thallium, vanadium and zinc.
NR 538.08(3) (3)Category 3 industrial byproducts. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Table 2A, and are not category 1 or 2 industrial byproducts are category 3 industrial byproducts. Coal ashes are category 3 industrial byproducts if the concentration of boron is less than 3.4 mg/l and the concentration of all other parameters are less than those concentrations listed in ch. NR 538 Appendix I, Table 2A.
NR 538.08(4) (4)Category 4 industrial byproducts. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Table 3, and are not category 1 to 3 industrial byproducts are category 4 industrial byproducts.
NR 538.08(5) (5)Category 5 industrial byproducts. Industrial byproducts that have been determined not to be a hazardous waste as defined in s. NR 660.10 (52) and are not category 1 to 4 industrial byproducts are category 5 industrial byproducts.
NR 538.08(6) (6)Criteria and process for using category standards.
NR 538.08(6)(a)(a) If a standard for a parameter listed in ch. NR 538 Appendix I is above the limit of detection and the limit of quantitation, the standard shall be considered to be 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 I is between the limit of detection and the limit of quantitation, inclusive, the standard shall be considered to be 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 I 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 will 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 to be exceeded if the presence of that parameter has been confirmed by the use of an appropriate analytical method.
NR 538.08(6)(c)3. 3. If a parameter is reported at or above the limit of quantitation, the standard shall be considered to be exceeded.
NR 538.08(7) (7)Case specific. The department may review the characterization results for an industrial byproduct in response to a request from the generator of the industrial byproduct not defined in s. NR 538.03 (4) and assign a category or categories for that material, or conditionally approve a beneficial use that does not meet the beneficial uses or standards specified in this chapter, on a case specific basis. The department may require additional information prior to a case specific approval. Any exemption or approval granted under this subsection shall be in accordance with the applicable requirements of s. 289.43 (4), (7) and (8), Stats.
NR 538.08 Note Note: The department may revise this rule to add or remove parameters or revise standards if changes in ch. NR 140, or other information warrant modifications.
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.
NR 538.10 NR 538.10Beneficial uses. The beneficial uses of industrial byproducts under this chapter which may be exempt from regulation as provided under s. NR 538.12 are:
NR 538.10(1) (1) Raw materials for manufacturing of a product in which the measurable leaching, emissions or decomposition characteristics of the industrial byproduct are substantially eliminated. Products that would meet these criteria include cement, lightweight aggregate, structural or ornamental concrete or ceramic materials, portland cement concrete pavement, asphaltic concrete pavement, roofing materials, plastics, paint, fiberglass, mineral wool, wallboard, plaster and other products as approved by the department.
NR 538.10(2) (2) Agents for physical or chemical stabilization, solidification or other treatment of solid waste that is to be disposed of at a lined landfill having a leachate collection system, or utilized in some other final use approved by the department.
NR 538.10(3) (3) Supplemental fuels that provide energy through controlled burning.
NR 538.10(4) (4) Daily cover or internal structures at lined landfills having a leachate collection system. The industrial byproducts used for this purpose may not contain free liquids. The industrial byproducts used as landfill daily cover may contain not more than 15% of silt and clay sized materials (P200 content), and may not be placed in layers greater than 6 inches thick. In addition the industrial byproducts used as landfill daily cover shall be able to control disease vectors, fires, odors, blowing litter and scavenging without presenting a threat to human health or the environment.
NR 538.10(5) (5) Confined geotechnical fill material in accordance with the project criteria and uses specified in this subsection. 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 (4) and concurrence by the department are needed. If the department does not respond to the notification within 10 business days, concurrence is considered to be granted. Industrial byproducts shall be used in accordance with best management practices. The criteria and uses under this subsection are as follows:
NR 538.10(5)(a) (a) Base course, subbase or subgrade fill for the construction of commercial, industrial or non-residential institutional buildings. The placement of the industrial byproduct may not extend more than 4 feet beyond the outside edge of the concrete slab or the frostwalls of the building. Placement of the concrete floor or frostwalls shall be completed as soon as practical after placement of the fill material. 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 topsoil and seeded as soon after placement as is practical. The use of industrial byproducts as base course, subbase and subgrade fill in the construction of residential buildings is specifically prohibited.
NR 538.10(5)(b) (b) Base course, subbase or subgrade fill for the construction of a portland cement concrete or asphaltic concrete paved lot. The placement of the industrial byproduct may not extend more than 4 feet beyond the paved area. Placement of the pavement shall be completed as soon as practical after placement of the fill material. Any area where industrial byproducts are not directly beneath the pavement structure shall be sloped to prevent ponding of water, covered with 2 feet of native soil including topsoil and seeded as soon after placement as is practical. The fill may not exceed 3000 cubic yards per half acre of the project area. The depth of fill may not exceed 4 feet below the natural ground surface. Prior written notification in accordance with s. NR 538.14 (4) and written concurrence by the department are needed for fills that do not meet the criteria in this subsection. Concurrence by the department will be based on specific site conditions and good engineering practice. If the department does not respond to the notification within 10 business days, concurrence is considered to be granted. The use of industrial byproducts as paved lot fill is prohibited in residential areas.
NR 538.10(5)(c) (c) Base course, subbase or subgrade fill for the construction of a paved federal, state or municipal roadway. Industrial byproducts placed as part of construction of the 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 using category 4 industrial byproducts, the design criteria in sub. (6) shall be required. For fills greater than 4 feet in depth using category 3 or less industrial byproducts, the design criteria in sub. (7) shall be required. The use of industrial byproducts as paved roadway subbase or base fill is prohibited in residential areas, unless used in a roadway designed with a rural type cross-section.
NR 538.10(5)(d) (d) Utility trench backfill. The industrial byproducts placed as part of backfill of a trench constructed for the placement of sanitary or storm sewer, non-potable water line, gas main, telecommunications, electrical or other utility lines shall be beneath a paved roadway, parking lot or other portland cement concrete or asphaltic concrete paved structure. The industrial byproducts 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(5)(e) (e) Bridge abutment backfill. Industrial byproducts placed as part of bridge abutment backfill shall be covered by a roadway structure. Any area where industrial byproducts are not directly beneath the pavement surface shall be sloped to prevent ponding of water, covered with base course or topsoiled and seeded as soon as practical after placement of the industrial byproduct. The use of industrial byproducts as bridge abutment trench backfill is prohibited in residential areas, unless used in a roadway designed with a rural type cross-section.
NR 538.10(5)(f) (f) Abandonment of tanks, vaults or tunnels that will provide total encapsulation of 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(5)(g) (g) 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 yard of industrial byproduct as a slabjacking material is prohibited in residential areas.
NR 538.10(5)(h) (h) Soil and pavement stabilization. Industrial byproducts used as soil and pavement base stabilization for structural improvements listed in pars. (a) to (c) shall be used in accordance with ASTM C618-03, 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. (c) if approved by the local unit of government with jurisdiction over the roadway.
NR 538.10 Note Note: ASTM C618-03 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, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, (610) 832-9585, www.astm.org. Copies of the standard are also available for inspection at the offices of the Department of Natural Resources, the Secretary of State and the Legislative Reference Bureau.
NR 538.10(5)(i) (i) Controlled low strength material (flowable fill). Industrial byproducts incorporated into controlled low strength material for structural improvements listed in pars. (a), (d), (e) and (f) shall be used in accordance with ACI 229R-99 or the Wisconsin department of transportation specifications for highway and structure construction, or other good engineering practices acceptable to the department.
NR 538.10 Note Note: ACI 229R-99 is the American Concrete Institute report “Controlled Low Strength Materials." Copies of this report can be obtained from the American Concrete Institute, P.O. Box 9094, Farmington Hills, MI 48333, (248) 848-3800, www.concrete.org. Copies of this report are also available for inspection at the offices of the Department of Natural Resources, Bureau of Waste Management, 101 S. Webster Street, P.O. Box 7921, Madison, Wisconsin 53707-7921. Copies are available for inspection at the offices of the Legislative Reference Bureau and the Secretary of State.
NR 538.10(6) (6) Fully encapsulated transportation facility embankments constructed under the authority of the Wisconsin department of transportation, or a municipality, that meet the criteria in this subsection. Examples include linear roadway sound and sight barrier berm embankments, airport embankments and roadway bridge or overpass embankments. For projects using more than 100,000 cubic yards of industrial byproducts, or with a maximum thickness of industrial byproduct greater than 20 feet, department concurrence shall be obtained prior to initiating the project. These embankments shall be constructed, documented and monitored as follows:
NR 538.10(6)(a) (a) The embankment shall be monitored in accordance with s. NR 538.20 (2).
NR 538.10(6)(b) (b) The embankment shall be covered on the top and sidewalls by 2 feet of recompacted clay, and underlain by a 3-foot thick recompacted clay liner. The recompacted clay base, sidewalls and top cover shall meet the following specifications:
NR 538.10(6)(b)1. 1. A minimum thickness of 3 feet under the entire base and 2 feet on the sidewalls and top compacted to a minimum of 95% standard dry proctor density at a moisture content wet of optimum, based on the characteristics of the appropriate proctor curve for the clay being placed.
NR 538.10(6)(b)2. 2. A classification of CL or CH under the unified soil classification system.
NR 538.10(6)(b)3. 3. A permeability of 1 x 10-7 cm/sec or less, when compacted to 95% standard maximum dry proctor density or greater.
NR 538.10(6)(b)4. 4. An average liquid limit of 25% or greater with no values less than 20%, when tested in accordance with ASTM-D4318-95.
NR 538.10(6)(b)5. 5. An average plasticity index of 12% or greater with no values less than 10%, when tested in accordance with ASTM-D4318-95.
NR 538.10(6)(b)6. 6. A minimum of 50% by weight that passes the 200 sieve.
NR 538.10 Note Note: ASTM-D4318-95 is the American society for testing and materials “Test Method for Liquid Limit, Plastic Limit and Plasticity Index for Soils." Copies of this test procedure can be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, (610) 832-9585, www.astm.org. Copies of the standard are also available for inspection at the offices of the Department of Natural Resources, the Secretary of State and the Legislative Reference Bureau.
NR 538.10(6)(c) (c) Any portion of the clay top cover or sidewalls of the embankment not covered by the pavement structure, which includes base course and pavement, shall be covered by one foot of cover soil that includes a minimum of 4 inches of topsoil.
NR 538.10(6)(d) (d) Documentation testing for the recompacted clay base, sidewalls and top cover shall be as follows:
NR 538.10(6)(d)1. 1. Field density and moisture content testing shall be performed on a uniform grid pattern for each lift of clay placed with the grid pattern offset on each subsequent lift. A lift may not exceed 8 inches in thickness following compaction. One density test shall be performed for each 40,000 ft2 of surface area for every 8 inch lift of clay placed on the base and top cover. One density test shall be performed for each 60,000 ft2 of surface area for every 8 inch lift of clay placed on the sideslopes offset on each subsequent lift.
NR 538.10(6)(d)2. 2. A disturbed soil sample shall be obtained for one of every 3 field test locations in subd. 1. and analyzed in a laboratory for atterberg limits and grain size to the 2 micron particle size. An undisturbed soil sample shall be obtained for one of every 9 field test locations in subd. 1. and analyzed for laboratory permeability.
NR 538.10(6)(d)3. 3. A standard proctor curve, ASTM-D698-91, shall be developed for each distinct soil source and type in order that density testing can be correlated to the appropriate soil type.
NR 538.10(6)(d)4. 4. Monitoring devices including headwells, and associated borehole construction shall be documented using the appropriate department forms: monitoring well construction form #4400-113A (rev. 4-90), soil boring log information form #4400-122 (rev. 7-91) and well information form #4400-89 (rev. 1-90).
NR 538.10 Note Note: ASTM-D698-91 is the American society for testing and materials “Test Method for Laboratory Compaction Characteristics of Soil Using Standard Effort." Copies of this test procedure can be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, (610) 832-9585, www.astm.org. Copies of the standard are also available for inspection at the offices of the Department of Natural Resources, the Secretary of State and the Legislative Reference Bureau.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.