7. Comparison with Similar Rules in Adjacent States (Illinois, Michigan, Minnesota and Iowa):
There is no federal rule regulating the beneficial use of all industrial byproducts. State regulations vary considerably. The state of Wisconsin was one of the first in the nation to promulgate rules on the beneficial use of industrial byproducts in 1997, and many states have rules that are loosely based on the ch. NR 538, Wis. Adm. Code, regulatory format. The State of Michigan regulates the beneficial use of various industrial waste materials under Part 115 Rule (statute) through authority granted to the Michigan Department of Environmental Quality (MDEQ). Acceptable beneficial uses are listed under Section 11502(8) of the rule, which divides the uses into five separate categories. Specifications for testing and criteria for use are explained in other sections of Rule 115. Acceptable beneficial uses include bonding into cement or asphalt, construction fill under roadways, land application, waste treatment at landfills, soil blending, and flue gas scrubbing reagent. Uses must be demonstrated to be protective of groundwater and surface water quality as well as human health and the environment.
The State of Minnesota regulates the beneficial use of certain industrial waste byproducts through Minn. Rule Ch. 7035.2860 by establishing a process under which waste generators can apply to the Minnesota Pollution Control Agency (MPCA) for a case-specific beneficial use determination (CSBUD) or make use of a list of standing beneficial uses (SBUD) that do not require prior MPCA approval. The list of SBUD uses includes reclaimed glass as aggregate, coal fly ash as an ingredient in cement, recycled concrete as an aggregate, tire chips as aggregate, shingles in asphalt mixes, lime-bearing wastes as an agricultural soil amendment, and foundry sand in cement mixes. Foundry sand can be used in a variety of uses including construction and geotechnical fill under a CSBUD specifically for foundry material. The permitted uses are listed in the appendix and fills must meet certain chemical standards and locational criteria such as being placed five feet above the seasonal groundwater table, not in contact with surface water, covered, and placed in thicknesses not to exceed four feet unless used as building sub-base or as approved by the MPCA. Uses not included in the SBUD list or the foundry CSBUD must be physically and chemically characterized in accordance with 7035.2861 which specifies that the analysis methods used for characterization must be consistent with the management option or beneficial use being proposed. Subpart 7 also requires annual reporting to the county in which the byproduct is generated.
The State of Illinois regulates the beneficial use of certain industrial byproducts in accordance with Section 22.54 of the Illinois Environmental Protection Act (415 ILCS 5/22.54) by requiring the generator or applicant to submit a formal Request for a Beneficial Use Determination for review by the Illinois Environmental Protection Agency (IEPA). All determinations are case-specific and based on the properties of the byproduct and site-specific conditions. All applications must justify that the byproduct materials are being legitimately beneficially used. However, coal combustion byproducts are exempted under subsection (4)(f) provided they qualify for a list of pre-approved beneficial uses under 415 ILCS 5/ 3.135. Steel and foundry wastes that are classified as "beneficially usable" by Board rules (35 Ill. Code 817) are also exempt per subsection (4)(h). Steel and foundry wastes that are used for land reclamation purposes are not exempt from this provision and must obtain an individual beneficial use determination. In accordance with 35 Ill. Adm. Code 817, steel and foundry wastes must be tested using water leach test method ASTM D3987, with the results compared to water quality standards specified in 35 Ill. Adm. Code 620. Based on the water leach test results, the steel and foundry wastes are then designated as either beneficially usable, potentially usable or low risk. The State of Iowa regulates industrial byproducts through Beneficial Use Determinations issued under ch. 108 of the Iowa Adm. Code (IAC 567 ch. 108). This Code also covers use of byproducts as alternate daily cover at landfill disposal sites. Similar to WI requirements, s. 108.04, IAC lists a variety of byproducts and specified eligible uses for each byproduct material that do not require prior approval by the IDNR but are considered universally approved beneficial use determinations. Byproducts used as fill material must meet the conditions in s. 108.6(1) IAC which includes water leach testing and a total metals analysis that is compared to water quality and state-wide soil standards. It also requires submission of a solid by-product management plan to the IDNR by all recipients of a beneficial use determination which must be updated and reported annually under s. 108.7 IAC. One section of the Code, 108.5, IAC, includes a provision for obtaining a beneficial use determination from the IDNR for byproduct materials or uses not specified in the Code. 8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The proposed ch. NR 538, Wis. Adm. Code, rule revisions rely on byproduct-specific analytical data to demonstrate the suitability of the byproduct material to be beneficially used while minimizing potential environmental impacts. Accepted uses are determined from established ASTM standards and Wisconsin Department of Transportation standard practices. Restrictions on those uses to protect public health and the environment are based on studies, existing quality standards in the administrative code, and good engineering practices. Specific examples include the following: (A) Section 538.06, Wis. Adm. Code, requires the industrial byproduct generator to analyze the byproduct material for leachability through ASTM-D3987 and for bulk analytical through methods in EPA Method SW-846 for an initial certification determination to assign appropriate eligible uses. (B) Section NR 538, Wis. Adm. Code, Appendix Table 1, lists the water leaching test parameters required for the Initial Characterization and Recharacterization of each industrial byproduct material. The parameters listed are based on listed constituents of concern from U.S. EPA studies of foundry sand and coal combustion residuals as well as historic characterization data collected by the department since implementation of the beneficial use program in 1997. Foundry sand parameters originated from Phase II Constituents of Concern per EPA Risk Assessment 530-R-14-003 (groundwater and ecological). Coal ash parameters were derived from Appendix III and IV, 40 CFR 257 (CCR Rule) and Constituents of Concern for groundwater and surface water per EPA 530-R-14-001. (C) Section NR 538, Wis. Adm. Code, Appendix Table 2, lists the bulk analyses parameters and standards required for Initial Certification and Recharacterization based on standards developed by DHS-specific potential human exposure modelling results for unconfined uses.
(D) Section NR 538, Wis. Adm. Code, Appendix Table 3, lists the parameters and standards for the use of flue gas desulfurization gypsum as a soil amendment that are derived from NRCS Conservation Practice Standard Code 333, June 2015 and Wisconsin-specific soil background concentrations in ch. NR 720, Wis. Adm. Code. (E) Section NR 538.10, Wis. Adm. Code, which is proposed to be repealed and replaced, contains numerous references to construction standards to define when a use is considered beneficial in notes. Standards include:
(1) NRCS Code 313 for animal waste storage facilities and NRCS Code 629 for animal feed storage facility construction.
(2) ASTM D7765-18a for use of foundry sand used for structural fill.
(3) ASTM E2277-14 for use of coal ash in structural fills.
(4) ASTM C618-15 for use of coal fly ash in concrete.
(5) ACI 229R-13 for use of coal fly ash as a controlled low-strength material (flowable fill).
(6) Wisconsin Department of Transportation Section 301 for aggregate use standards.
(F) Section 538.12(2), Wis. Adm. Code, proposes using a three or five-foot separation distance to the groundwater table for all geotechnical fill sites based on studies conducted by the University of Wisconsin-Madison Dept. of Civil and Environmental Engineering, Geo Engineering Reports No. 02-14 dated December 18, 2002 and No. 05-21 dated December 27, 2005. (G) Section NR 538.12(3), Wis. Adm. Code, proposes to set a 100-foot setback from any geotechnical fill projects and private or public water supply wells based on a groundwater contaminant transport model developed for the department by Dr. Michael Cardiff of the University of Wisconsin-Madison in 2018. 9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Cost estimates from industry sources, fee tables for analyses from the State Laboratory of Hygiene, and information from the department beneficial use files.
10. Effect on Small Business (initial regulatory flexibility analysis):
None. Participation in this program is voluntary.
11. Agency Contact Person:
Andrea Keller, Hazardous Waste Prevention and Management Section Chief
Phone: 608.267.3132
Fax: 608.267.2768
12. Place where comments are to be submitted and deadline for submission:
The consent of the Attorney General was received on November 5, 2019 for the incorporation by reference of SW-846 test methods; ASTM D3987-12, “Test Method for Shake Extraction of Solid Wastes with Water”; ASTM C618-15, “Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use in Concrete”; and ACI 229R-13, “Controlled Low Strength Materials.”
Section 1. NR 538.01 is amended to read:
NR 538.01 Purpose. 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 that is protective of public health and the environment and in accordance with good engineering practices. 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. Section 2: NR 538.02 (Note) is amended to read:
NR 538.02 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 Additional state and local laws and codes, however, may apply to the beneficial use of industrial byproducts regulated under this chapter. Section 3: NR 538.03 is repealed and recreated to read:
NR 538.03 Definitions. In this chapter, the following definitions as well as the definitions in ch. 289, Stats., and s. NR 500.03 are applicable: (1) "Base aggregates" means specified or selected material of designated thickness placed on a subgrade to support a pavement or other structure.
(2) “Beneficial use” means the utilization of an industrial byproduct in a productive manner.
(3) “Encapsulated use” means a use in which the measurable leaching, emissions or decomposition characteristics of the industrial byproduct are substantially eliminated by binding them into a solid matrix.
(4) “Excess quantities” means the use of industrial byproducts in volumes that are greater than necessary for the specific project purpose.
(5) "Flue gas desulfurization material" or “FGD” means the material recovered from air pollution control systems that capture sulfur dioxide emissions from energy recovery facilities. ”Flue gas desulfurization material” includes flue gas desulfurization gypsum produced as a byproduct of a lime or limestone-based reagent wet air pollution control scrubbing process that includes a forced oxidation system resulting in commercial grade calcium sulfate compound. ”Flue gas desulfurization material” also includes flue gas desulfurization byproduct material generated in a dry or semi-dry air quality control system, provided the system includes separate coal combustion fly ash capture by means of an electrostatic precipitator or baghouse filter.
(6) “Foundry sand” means spent silica-based molding and core sand resulting from metal casting processes, including dry baghouse and wet collector sand fines collected at the foundry during the metal casting process.
(6m) “Generator” means any person whose act or process produces an industrial byproduct as identified, listed, or determined by the department under sub. (8).
(7) “Impervious surface” means a barrier layer designed to prevent percolation or contain liquids that have come into contact with the byproduct consisting of either a minimum 3 inches thick of asphalt or concrete, a minimum 2 foot thick clay layer constructed in accordance with s. NR 504.06 (2) (a) and (f), a geomembrane layer constructed in accordance with s. NR 504.07 (5), or other impervious surface designs approved in writing by the department. (8) (a) "Industrial byproduct" means, subject to par. (b), papermill sludge; combustion ash including coal combustion residuals such as fly ash, bottom ash, boiler slag, and material captured in flue gas desulfurization systems; ferrous, steel and aluminum foundry sand; aluminum slag; byproducts from the production of lime including lime kiln dust; or non-hazardous solid waste with similar characteristics as determined by the department.
(b) “Industrial byproduct” includes only materials that have been generated as a byproduct of an industrial process and possess consistent physical and chemical properties.
(c) “Industrial byproduct” does not include any of the following:
1. Post-consumer waste or the byproducts of combusting or processing post-consumer waste.
2. Ash from solid waste incinerators.
3. Slag generated by the production or processing of iron or steel that is managed as an item of value in a controlled manner and not discarded.
4. Material that was previously disposed or landfilled.
Note: Materials excluded from the definition of industrial byproducts may be beneficially reused if approved in writing by the department under s. NR 500.08 (5) (a) and s. 289.43, Stats., except iron or steel foundry slag which is exempted under ss. 289.01(33) and 287.29 Stats. (9) "Lime kiln dust" means the material recovered from air pollution control systems that capture emissions from lime kilns.
(10) “Productive manner” means the use of an industrial byproduct that meets all of the following criteria:
(a) Provides a functional benefit.
(b) Substitutes for the use of a virgin material that must be otherwise obtained.
