Chapter NR 538

NR 538.06(4) (4) Mixing of industrial byproducts. If separate industrial byproducts will be mixed together, each of the byproducts must be individually eligible for the specific intended final use of the resulting mixture unless otherwise approved by the department in writing under s. NR 538.09.

NR 538.06 Note Note: Copies of EPA SW-846 test methods are available directly from the U.S. environmental protection agency at https://www.epa.gov/hw-sw846. Copies of the test methods are available for inspection at the offices of the department of natural resources and the legislative reference bureau. See also the definition for SW-846 at s. NR 500.03 (231), Wis. Admin. Code.

NR 538.06 Note Note: ASTM D3987-12 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 at https://www.astm.org/Standards/D3987.htm. Copies of the standard are available for inspection at the offices of the department of natural resources and the legislative reference bureau.

NR 538.06(5) (5) Recharacterization.

NR 538.06(5)(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, in writing, an alternative recharacterization method.

NR 538.06(5)(b) (b) Industrial byproducts shall be recharacterized as follows:

NR 538.06(5)(b)1. 1. 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 potentially result in a change in the eligible uses of the industrial byproduct.

NR 538.06(5)(b)2. 2. A representative sample of each industrial byproduct shall be recharacterized in accordance with ch. NR 538 Appendix, Tables 1 and 2, at a minimum of once every 4 years from the date of the initial certification or the last recharacterization, except that recharacterization is not required under this subsection for any industrial byproduct of which less than 1000 cubic yards were beneficially used or stored for beneficial use in any calendar year during the previous 4-year period.

NR 538.06(5)(c) (c) The generator shall submit documentation of any recharacterization test results required under this section to the department in accordance with s. NR 538.14 (2). The department shall reply with a written concurrence within 10 business days, provided the submittal meets the applicable criteria of this chapter. If the department does not respond to a recertification request within 10 business days, the recertification is deemed complete and concurrence with the recharacterization is considered granted.

NR 538.06(6) (6) Initial applicability. A generator that submitted an initial certification prior to January 1, 2021, may submit a recharacterization and a hazardous waste determination under sub. (3) (b) to the department within 4 years of the date the last recharacterization or initial certification was submitted to the department prior to January 1, 2021, provided there has been no change in the process that produces the industrial byproduct in accordance with sub. (5) (b) 1.

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; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in numbering in (1) (b) made under s. 13.92 (4) (b) 1., Stats., and correction in (1) (a), (b) 3., (3) (b), (5) (c), (6) made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.08 NR 538.08 Determination of eligible uses. Acceptable beneficial uses for industrial byproducts that have been determined not to be a hazardous waste, as defined in s. NR 660.10 (52), and tested in accordance with s. NR 538.06 shall be determined as follows:

NR 538.08(1) (1) Contained or converted uses. All industrial byproducts, including select foundry sand, are eligible for contained or converted uses in accordance with provisions of s. NR 538.10 (1).

NR 538.08(2) (2) Geotechnical fill. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B, are eligible for use as geotechnical fill in accordance with the provisions of ss. NR 538.10 (2) and 538.12, except nonmetallic mine reclamation uses under s. NR 538.12 (2) (e), which must be designated by the department as a select foundry sand under s. NR 538.06 (3) (f) or determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column A.

NR 538.08(3) (3) Construction uses. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B, are eligible for construction uses in accordance with the provisions of s. NR 538.10 (3).

NR 538.08(4) (4) Unconfined uses. Industrial byproducts, including select foundry sand, that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 1, Column B and Table 2 are eligible for unconfined uses in accordance with the provisions of s. NR 538.10 (4).

NR 538.08(5) (5) Soil or plant additives. Flue gas desulfurization materials that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix, Table 3, are eligible for use as soil and plant additives in accordance with the provisions of s. NR 538.10 (5). Industrial byproducts intended for use as agricultural liming additives that have been determined to contain less than the concentrations specified in Table 3 of s. NR 204.07 (5) (c) are eligible for use as soil or plant additives in accordance with the provisions of s. NR 538.10 (5).

NR 538.08(6) (6) Criteria and process for using eligibility standards.

NR 538.08(6)(a) (a) If a standard for a parameter listed in ch. NR 538 Appendix is above the limit of detection and the limit of quantitation, the standard shall be considered 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 is between the limit of detection and the limit of quantitation, inclusive, the standard shall be considered 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 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 shall 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 exceeded if the presence of that parameter has been confirmed by the use of an appropriate analytical method as determined by the department.

NR 538.08(6)(c)3. 3. If a parameter is reported at or above the limit of quantitation, the standard shall be considered exceeded.

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; CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction in (intro.) made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.09 NR 538.09 Case-specific approvals. The department may review the characterization results for an industrial byproduct not defined in s. NR 538.03 (8) in response to a request from the generator and may, on a case-specific basis, approve a beneficial use or uses for that material or conditionally approve a beneficial use that does not meet the beneficial uses or standards specified in this chapter. The department may require additional information prior to a case-specific approval. Any exemption or approval granted under this section shall be in accordance with the applicable requirements of s. 289.43 (4), (7) and (8), Stats. If the department determines that the industrial byproduct material falls under the s. NR 538.03 (8) (b) or (c) exclusions or the proposed use does not meet the definition of a beneficial use under s. NR 538.03 (2), approval for use or disposal must be obtained through the applicable provisions under ss. NR 500 to 528.

NR 538.09 History History: CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11-1-20; correction made under s. 35.17, Stats., Register May 2020 No. 773.

NR 538.10 NR 538.10 Eligible beneficial uses. All uses of industrial byproducts shall meet all applicable structural and physical specifications and generally accepted engineering practices for the use. Under this chapter, the eligible beneficial uses of industrial byproducts that may be exempt from licensing under s. 289.31, Stats., and the regulatory requirements under chs. NR 500 to 528 include any of the following:

NR 538.10(1) (1) Contained or converted uses. Uses that are fully contained within a licensed, engineered disposal facility, are encapsulated within a matrix material, are burned for fuel, or are converted into a product, including any of the following:

NR 538.10(1)(a) (a) Encapsulated uses. Products that may meet these criteria include cement, lightweight aggregate, structural or ornamental concrete or ceramic materials, portland cement concrete pavement, asphaltic concrete pavement, slurry seals, roofing materials, plastics, paint, fiberglass, mineral wool, wallboard, plaster and other products approved in writing by the department.

NR 538.10(1)(b) (b) Agents for physical or chemical stabilization, solidification or other treatment of solid waste that is to be disposed of at a licensed, engineered disposal facility or utilized in some other final use approved in writing by the department.

NR 538.10(1)(c) (c) Supplemental material used for fuel or to assist air pollution control during the process of combustion for energy production.

NR 538.10(1)(d) (d) Daily cover or internal structures at licensed, approved landfills having a liner and leachate collection system. The industrial byproducts used for this purpose may not contain free liquids. The industrial byproducts beneficially used at landfills for alternate daily cover in accordance with s. NR 506.055 may contain no more than 15% silt and clay sized materials as determined by their P200 content and may not be placed in layers greater than 6 inches thick. Any uses under this paragraph shall be subject to the conditions of the plan of operation and any other applicable solid waste approvals associated with the landfill.

NR 538.10(2) (2) Geotechnical fill. Geotechnical fill material meeting the project criteria and uses specified in this subsection and s. NR 538.12 where applicable. 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 (5) and concurrence by the department under s. NR 538.14 (6) are required unless the specific concurrence requirements in par. (b) or (f) apply. Industrial byproducts shall be used in accordance with best management practices. The criteria and uses under this subsection are as follows:

NR 538.10(2)(a) (a) Subgrade fill for the construction of commercial, industrial or non-residential institutional buildings. Industrial byproducts used as subgrade fill for the construction of commercial, industrial, or non-residential institutional buildings shall have placement of the concrete floor or frostwalls completed as soon as practical after placement of the fill material in accordance with s. NR 538.12 (4). 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 a minimum of 4 inches of topsoil, and seeded or otherwise covered as approved by the department in writing. Cover shall be placed over fill material as soon as practical after byproduct placement. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline. The use of industrial byproducts as subgrade fill in the construction of residential buildings is prohibited.

NR 538.10(2)(b) (b) Subgrade fill for the construction of portland cement concrete or asphaltic concrete paved infrastructure. Industrial byproducts used for subgrade fill for the construction of portland cement or asphaltic concrete paved infrastructure including parking lots, access roads, and private roadways shall have placement of the pavement 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 a minimum of 4 inches of topsoil, and seeded as soon after byproduct placement as is practical or otherwise covered as approved by the department in writing. Prior written notification in accordance with s. NR 538.14 (5) and written concurrence by the department under s. NR 538.14 (6) are required for fills that do not meet the criteria in this paragraph. The use of industrial byproducts as paved lot fill is prohibited in residential areas.

NR 538.10(2)(c) (c) Geotechnical fill material with a soil or gravel cover. Industrial byproducts beneficially used as geotechnical fill with a soil or gravel cover for sight, sound, safety and structural berms, public recreation trails, construction of sporting venues, limited use parking areas, access lanes, utility trenches not covered by a paved surface in accordance with sub. (3) (c), or other beneficial uses demonstrated to be acceptable by the department shall be sloped to prevent ponding of water, covered with 2 feet of native soils, including a minimum of 4 inches of topsoil or other cover approved by the department in writing, and seeded as soon as practical after placement of the industrial byproducts. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline. Gravel or other granular material may be substituted for topsoil if necessary for the specified use, provided the total fill cover is at least 2 feet. The beneficial use of industrial byproducts as geotechnical fill with a soil or gravel cover is prohibited in residential areas.

NR 538.10(2)(d) (d) Use of foundry sand at livestock operations. Foundry sand may be beneficially used at livestock operations for any of the following:

NR 538.10(2)(d)1. 1. Liner material in an impoundment or structure used for the storage of livestock manure, livestock feed, or process wastewater. The impoundment or structure shall be designed and constructed in accordance with applicable natural resources conservation service standards and local ordinances, and in accordance with plans and specifications approved under chs. NR 213 and 243, if applicable.

NR 538.10(2)(d)2. 2. Geotechnical fill beneath an area where livestock will be housed or confined. Any areas of foundry sand fill that will be washed or mechanically scraped shall be paved with an asphalt or concrete surface, or a 2 feet thick protective soil layer, over the industrial byproduct. The livestock housing or confinement area design and construction shall be in accordance with applicable natural resources conservation service standards and local ordinances, and in accordance with plans and specifications approved under ch. NR 243, if applicable to any portion of the project.

NR 538.10 Note Note: Under ch. NR 243 Natural Resources Conservation Service (NRCS) conservation practice standard Code 313, dated December 2005 applies to waste storage facilities. Under ch. ATCP 50, NRCS conservation practice standard Code 629 dated January 2014 applies to feed storage runoff control facilities. Copies of these and other conservation practice codes can be obtained online from the NRCS Field Office Technical Guide, www.nrcs.usda.gov/wps/portal/nrcs/site/wi/home. Copies are also available at the Wisconsin NRCS state office or the Wisconsin Land and Water Conservation Association office.

NR 538.10(2)(e) (e) Transportation facility embankments. Industrial byproducts used as geotechnical fill for transportation facility embankments such as linear roadway sound and sight barrier berm embankments, airport embankments, and roadway bridge or overpass embankments constructed under the authority of the Wisconsin department of transportation or a municipality shall meet the criteria in this paragraph. Any area where industrial byproduct is used as an embankment and not covered by pavement or road shoulder material, shall be sloped to prevent ponding of water, covered with 2 feet of native soils including a minimum of 4 inches of topsoil, or other cover approved by the department in writing, and seeded with an approved Wisconsin department of transportation seed mix as soon as practical after placement of the industrial byproducts. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline.

NR 538.10(2)(f) (f) Geotechnical fill material used in the reclamation of nonmetallic mining sites. Industrial byproducts that have been designated by the department as select foundry sand under s. NR 538.06 (3) (f) or that do not exceed the concentrations specified in ch. NR 538 Appendix, Table 1, Column A may be beneficially used as geotechnical fill material in the reclamation of nonmetallic mining sites. Prior written notification in accordance with s. NR 538.14 (5) and concurrence by the department under s. NR 538.14 (6) are required for all nonmetallic mine reclamation projects. Reclamation of a nonmetallic mine within an area of Silurian bedrock as defined under s. NR 151.015 (17) shall be approved as a case-specific approval in accordance with s. NR 538.09. Additional requirements for the use of industrial byproducts for reclamation of nonmetallic mining sites include the following:

NR 538.10(2)(f)1. 1. The use of industrial byproducts at a nonmetallic mining site with a reclamation permit issued under ch. NR 135 shall be in accordance with the approved reclamation plan required under s. NR 135.19. If the reclamation plan does not specify the use of industrial byproducts as fill material, the plan shall be modified in accordance with s. NR 135.24 to reflect the use of these byproducts. The reclamation plan or modification shall be approved by the regulatory authority under s. NR 135.03 (20) in accordance with ch. NR 135 before applying for concurrence by the department.

NR 538.10(2)(f)2. 2. A mine reclamation project at a mine site that does not have an approved reclamation plan issued under ch. NR 135 shall be subject to a case-specific approval in accordance with s. NR 538.09. The applicant shall submit a reclamation plan that meets the applicable criteria under s. NR 135.19 (1) to (4) to the department as part of the case-specific approval request.

NR 538.10(2)(f)3. 3. Eligible uses for industrial byproducts as part of the reclamation of a nonmetallic mine site under this section include construction of safety berms, buttressing of unstable side slopes to provide for a revegetated surface, placement of no more than 2 feet of manufactured soils under sub. (4) (c) or other appropriate byproducts to establish a rooting zone layer, or the use of byproducts or byproduct blends as a topsoil substitute material as defined under s. NR 135.03 (24).

NR 538.10(2)(f)4. 4. Any area where industrial byproducts are beneficially used as geotechnical fill in a nonmetallic mine site that are to be revegetated as part of the mine reclamation plan shall be sloped to prevent ponding of water, covered with 2 feet of native soils including a minimum of 4 inches of topsoil or other cover approved by the department in writing, and seeded in accordance with the reclamation plan as soon as practical after placement of the industrial byproducts. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline.

NR 538.10(2)(f)5. 5. For all nonmetallic mine reclamation project sites, industrial byproducts, including select foundry sand, that are used as geotechnical fill may not be placed within 5 feet of the groundwater table at the time the byproduct material is placed.

NR 538.10(2)(f)6. 6. The beneficial use of industrial byproducts as geotechnical fill in the reclamation of nonmetallic mines is prohibited in residential areas or areas where residential construction is planned as a post-reclamation land use.

NR 538.10 Note Note: Federal rules restrict the use of coal combustion residuals as fill in sand and gravel pits and quarries under 40 CFR 257.50-107, subpart D.

NR 538.10 Note Note: 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 Note Note: 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 Note Note: 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 Note Note: Bulk land application of spent foundry sand on agricultural fields is regulated under ch. NR 518.

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 Note Note: 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 Note Note: 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 Note Note: 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 History History: 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.

NR 538.12 NR 538.12 Additional criteria for the beneficial use of industrial byproducts as geotechnical fill.

NR 538.12(1) (1) All geotechnical fill uses shall comply with the performance standards under s. NR 538.04 and the applicable criteria in this section.

NR 538.12(2) (2) Industrial byproducts that are utilized for any of the uses under s. NR 538.10 (2) shall be placed in accordance with all of the following:

NR 538.12(2)(a) (a) Industrial byproducts may not be placed within areas of permanent standing water or areas that need to be dewatered prior to placement due to groundwater infiltration.

NR 538.12(2)(b) (b) For those beneficial uses listed in s. NR 538.10 (2) that use industrial byproducts designated by the department as select foundry sand under s. NR 538.06 (3) (f) or that do not exceed the concentrations specified in ch. NR 538 Appendix, Table 1, Column A, there shall be a minimum separation distance of 3 feet between the industrial byproduct and the groundwater table at the time of placement, except geotechnical fill used for nonmetallic mine reclamation projects under s. NR 538.10 (2) (f), which shall maintain a minimum separation distance as determined by s. NR 538.10 (2) (f) 5.

NR 538.12(2)(c) (c) For those beneficial uses listed in s. NR 538.10 (2) that use industrial byproducts, excluding select foundry sand, that exceed the concentrations specified in ch. NR 538 Appendix, Table 1, Column A, but are less than the concentrations specified in ch. NR 538 Appendix, Table 1, Column B, there shall be a minimum separation distance of 5 feet between the industrial byproducts and the groundwater table at the time the material is placed.

NR 538.12(2)(d) (d) Industrial byproducts may not be placed within an area that meets the definition of a floodplain under s. NR 116.03 (16) or below the ordinary high-water mark within any navigable waters as defined under s. NR 115.03 (6) without prior written approval from the department.

NR 538.12(2)(e) (e) Industrial byproducts used as geotechnical fill as part of the reclamation of nonmetallic mine sites in accordance with s. NR 538.10 (2) (f) may not exceed the concentrations in s. NR 538 Appendix, Table 1, Column A unless designated by the department as select foundry sand under s. NR 538.06 (3) (f).

NR 538.12(3) (3) Industrial byproducts that are used for the beneficial uses listed in s. NR 538.10 (2) and exceed 5,000 cubic yards may not be placed closer than 100 feet from a private or public water well. Prior written notification to the department in accordance with s. NR 538.14 (5) and concurrence by the department under s. NR 538.14 (6) is required for separation distances less than 100 feet. Concurrence by the department shall be based on site-specific conditions such as well construction and ground water flow direction.

NR 538.12(4) (4) Beneficial use projects utilizing fill materials under s. NR 538.10 (2) shall be completed, including the placement of final cover, within 12 months of first accepting industrial byproduct material. This period may be extended to no more than 16 months provided the site is adequately secured from public access by means of exclusion fencing and signage or other equally effective means as approved by the department in writing. If the beneficial use project requires more than 12 months to complete, or 16 months to complete if the site is adequately secured, the project shall be planned in phases with each phase of filling completed and interim or final cover placed prior to initiation of filling the next phase. Prior to use of an alternate cover, the generator, or the generator’s designee, shall provide a written request to the department. A written approval by the department may be granted based upon site-specific conditions and good engineering practices.

NR 538.12(5) (5) Confining surfaces and soil cover in beneficial use projects utilizing fill materials under s. NR 538.10 (2) shall be maintained as designed. Fill materials exposed by erosion, excavation, or weathering shall be covered in accordance with the original design, or as approved by the department, as soon as practical. Requests for modification of the final cover shall be made in accordance with s. NR 538.14 (7), and excavation of fill material shall be performed in accordance with s. NR 538.24.

NR 538.12(6) (6) Beneficial use projects proposing utilization of 100,000 cubic yards or more of geotechnical fill materials under s. NR 538.10 (2) shall require a request to the department by the generator, or the generator’s designee, for a case-specific approval in accordance with s. NR 538.09.