Register March 2017 No. 735
Chapter NR 538
BENEFICIAL USE OF INDUSTRIAL BYPRODUCTS
NR 538.01   Purpose.
NR 538.02   Applicability.
NR 538.03   Definitions.
NR 538.04   Performance standards.
NR 538.05   Solid waste rules exemption.
NR 538.06   Industrial byproduct characterization.
NR 538.08   Industrial byproduct categories.
NR 538.10   Beneficial uses.
NR 538.12   Beneficial uses for specific categories of industrial byproducts.
NR 538.14   Reporting.
NR 538.16   Storage and transportation requirements.
NR 538.18   Public participation.
NR 538.20   Environmental monitoring.
NR 538.22   Property owner notification.
NR 538.01 NR 538.01Purpose. The purpose of this chapter is to allow and encourage to the maximum extent possible, consistent with the protection of public health and the environment and good engineering practices, the beneficial use of industrial byproducts in a nuisance-free manner. The department encourages the beneficial use of industrial byproducts in order to preserve resources, conserve energy, and reduce or eliminate the need to dispose of industrial byproducts in landfills. This chapter is adopted under ss. 289.05, 289.06, 289.43 (4), (7) and (8), and 227.11, Stats.
NR 538.01 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98.
NR 538.02 NR 538.02Applicability.
NR 538.02(1) (1) Except as otherwise provided, this chapter governs the beneficial use of industrial byproducts, except hazardous waste as defined in s. 291.01 (7), Stats., and regulated under chs. NR 660 to 679; metallic mining operations for nonferrous minerals as defined in s. 293.01 (9), Stats., and regulated under ch. NR 182; and metallic mining operations for ferrous minerals as defined in s. 295.41 (26), Stats., including mining wastes and mining waste sites as defined in s. 295.41 (30) and (31), Stats., and regulated under subch. III of ch. 295, Stats.
NR 538.02(2) (2) This chapter does not apply to the design, construction or operation of industrial wastewater facilities, sewerage systems and waterworks treating liquid wastes approved under s. 281.41, Stats., or permitted under ch. 283, Stats., nor to facilities used solely for the disposal of liquid municipal or industrial wastes which have been approved under s. 281.41, Stats., or permitted under ch. 283, Stats., except facilities used for the disposal of solid waste.
NR 538.02 Note Note: The landspreading of wastewater treatment sludges is regulated under chs. NR 206 and 214. The landspreading of solid wastes is regulated under ch. NR 518. Other state and local laws and codes, however, may apply to the beneficial use of industrial byproducts regulated under this chapter.
NR 538.02 History History: Cr. Register, December, 1997, No. 504, eff. 1-1-98; CR 13-057: am. (1) Register July 2015 No. 715, eff. 8-1-15.
NR 538.03 NR 538.03Definitions. The following definitions as well as the definitions in ch. 289, Stats., and s. NR 500.03 are applicable to the terms used in this chapter unless the context requires otherwise.
NR 538.03(1) (1) “Base course" means the layer or layers of specified or selected material of designated thickness placed on a subbase or subgrade to support a pavement or other structure.
NR 538.03(2) (2) “Confined geotechnical fill" means a fill that is covered by an impervious surface such as concrete or asphalt.
NR 538.03(3) (3) “Flue gas desulfurization" means the material recovered from air pollution control systems that capture sulfur dioxide emissions from energy recovery facilities.
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.
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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.