Chapter NR 661

NR 661.0003(3)(b) (b)

NR 661.0003(3)(b)1. 1. Except as otherwise provided in subd. 2. or sub. (7) or (8), any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash emission control dust, or leachate, but not including precipitation run-off, is a hazardous waste. However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.

NR 661.0003(3)(b)2. 2. Unless they exhibit one or more of the characteristics of hazardous waste, none of the following solid wastes are hazardous even though they are generated from the treatment, storage, or disposal of a hazardous waste:

NR 661.0003(3)(b)2.a. a. Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry, SIC Codes 331 and 332, as incorporated by reference in s. NR 660.11.

NR 661.0003(3)(b)2.b. b. Waste from burning any of the materials exempted from regulation by s. NR 661.0006 (1) (c) 3. and 4.

NR 661.0003(3)(b)2.c. c. 1) Nonwastewater residues, such as slag, resulting from high temperature metals recovery or HTMR processing of K061, K062 or F006 waste, in units identified as rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace/electric furnace combinations or industrial furnaces as defined in s. NR 660.10 (60) (f), (g), and (m), that are disposed in approved solid waste disposal facilities, if these residues meet the generic exclusion levels identified in Table 2 for all constituents, and exhibit no characteristics of hazardous waste. Testing requirements shall be incorporated in a facility’s waste analysis plan or a generator’s self-implementing waste analysis plan. At a minimum, composite samples of residues shall be collected and analyzed quarterly and when the process or operation generating the waste changes. A person claiming this exclusion in an enforcement action has the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.

Table 2

- See PDF for table

2) A one-time notification and certification shall be placed in the facility’s files and sent to the department for K061, K062 or F006 HTMR residues that meet the generic exclusion levels for all constituents, and do not exhibit any characteristics of hazardous waste, that are sent to approved solid waste disposal facilities. The notification and certification that is placed in the generator’s or treater’s files shall be updated if the process or operation generating the waste changes or if the approved solid waste disposal facility receiving the waste changes. However, the generator or treater need only notify the department on an annual basis if such changes occur. Such notification and certification shall be sent to the department by the end of the calendar year. The notification shall include the following information: The name and address of the approved solid waste disposal facility receiving the waste shipments; the EPA hazardous waste number and treatability group at the initial point of generation; and the treatment standards applicable to the waste at the initial point of generation. The certification shall be signed by an authorized representative and shall state as follows: “I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.”

NR 661.0003(3)(b)2.d. d. Biological treatment sludge from the treatment of one of the following wastes listed in s. NR 661.0032: organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes, EPA Hazardous Waste No. K156; and wastewaters from the production of carbamates and carbamoyl oximes, EPA Hazardous Waste No. K157.

NR 661.0003(3)(b)2.e. e. Catalyst inert support media separated from one of the following wastes listed in s. NR 661.0032: spent hydrotreating catalyst, EPA Hazardous Waste No. K171; and spent hydrorefining catalyst, EPA Hazardous Waste No. K172.

NR 661.0003(4) (4) Any solid waste described in sub. (3) is not a hazardous waste if it meets the following criteria:

NR 661.0003(4)(a) (a) In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in subch. C. However, wastes that exhibit a characteristic at the point of generation may still be subject to the requirements under ch. NR 668, even if they no longer exhibit a characteristic at the point of land disposal.

NR 661.0003(4)(b) (b) In the case of a waste that is a listed waste under subch. D, contains a waste listed under subch. D, or is derived from a waste listed in subch. D, it also has been excluded from sub. (3) under ss. NR 660.20 and 660.22.

NR 661.0003(6) (6) Notwithstanding subs. (1) to (4) and provided the debris as defined in ch. NR 668 does not exhibit a characteristic identified in subch. C, none of the following materials is subject to regulation under ch. NR 660, 661 to 666, 668, or 670:

NR 661.0003(6)(a) (a) Hazardous debris as defined in ch. NR 668 that has been treated using one of the required extraction or destruction technologies specified in Table 1 of s. NR 668.45. Persons claiming this exclusion in an enforcement action have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.

NR 661.0003(6)(b) (b) Debris, as defined in ch. NR 668, that the department, considering the extent of contamination, has determined is no longer contaminated with hazardous waste.

NR 661.0003(7) (7) 

NR 661.0003(7)(a) (a) A hazardous waste that is listed in subch. D solely because it exhibits one or more characteristics of ignitability as defined under s. NR 661.0021, corrosivity as defined under s. NR 661.0022, or reactivity as defined under s. NR 661.0023 is not a hazardous waste if the waste no longer exhibits any characteristic of hazardous waste identified in subch. C.

NR 661.0003(7)(b) (b) The exclusion described in par. (a) also pertains to all of the following:

NR 661.0003(7)(b)1. 1. Any mixture of a solid waste and a hazardous waste listed in subch. D solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under sub. (1) (b) 4.

NR 661.0003(7)(b)2. 2. Any solid waste generated from treating, storing, or disposing of a hazardous waste listed in subch. D solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under sub. (3) (b) 1.

NR 661.0003(7)(c) (c) A waste excluded under this subsection is subject to ch. NR 668, as applicable, even if it no longer exhibits a characteristic at the point of land disposal.

NR 661.0003(7)(d) (d) Any mixture of a solid waste excluded from regulation under s. NR 661.0004 (2) (g) and a hazardous waste listed in subch. D solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity as regulated under sub. (1) (b) 4. is not a hazardous waste if the mixture no longer exhibits any characteristic of hazardous waste identified in subch. C for which the hazardous waste listed in subch. D was listed.

NR 661.0003(8) (8) 

NR 661.0003(8)(a) (a) Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets the eligibility criteria and conditions of subch. N of ch. NR 666, eligible radioactive mixed waste.

NR 661.0003(8)(b) (b) The exemption described in par. (a) also pertains to all of the following:

NR 661.0003(8)(b)1. 1. Any mixture of a solid waste and an eligible radioactive mixed waste.

NR 661.0003(8)(b)2. 2. Any solid waste generated from treating, storing, or disposing of an eligible radioactive mixed waste.

NR 661.0003(8)(c) (c) Waste exempted under this subsection shall meet the eligibility criteria and specified conditions in ss. NR 666.225 and 666.230 for storage and treatment, and in ss. NR 666.310 and 666.315 for transportation and disposal. Waste that fails to satisfy these eligibility criteria and conditions is regulated as hazardous waste.

NR 661.0003 History History: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (1) (b) 4. (intro.), a., b., d., f., g., (5) (intro.), (3) (b) 2. b., c., (6) (b) made under s. 35.17, Stats., Register August 2020 No. 776.

NR 661.0004 NR 661.0004 Exclusions.

NR 661.0004(1) (1) Materials that are not solid wastes. All of the following materials are not solid wastes for the purpose of this chapter:

NR 661.0004(1)(a) (a) All of the following:

NR 661.0004(1)(a)1. 1. Domestic sewage. “Domestic sewage” means untreated sanitary wastes that pass through a sewer system.

NR 661.0004(1)(a)2. 2. Any mixture of domestic sewage, as defined in subd.1., and other wastes that passes through a sewer system to a publicly owned treatment works for treatment, except as prohibited by s. NR 666.505 and Clean Water Act requirements specified in 40 CFR 403.5 (b).

NR 661.0004(1)(b) (b) Industrial wastewater discharges that are point source discharges subject to regulation under ss. 283.31 and 283.33, Stats.

NR 661.0004 Note Note: This exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment.

NR 661.0004(1)(c) (c) Irrigation return flows.

NR 661.0004(1)(d) (d) Source material, special nuclear material, or by-product material as defined by 42 USC 2011 to 2114.

NR 661.0004 Note Note: Title 42 USC 2011 to 2114 is also known as the atomic energy act of 1954, as amended.

NR 661.0004(1)(e) (e) Materials subjected to in-situ mining techniques that are not removed from the ground as part of the extraction process.

NR 661.0004(1)(f) (f) Pulping liquors that are reclaimed in a pulping liquor recovery furnace and reused in the pulping process, unless they are accumulated speculatively as defined in s. NR 661.0001 (3).

NR 661.0004(1)(g) (g) Spent sulfuric acid used to produce virgin sulfuric acid provided it is not accumulated speculatively as defined in s. NR 661.0001 (3).

NR 661.0004(1)(h) (h) Secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided all of the following conditions are met:

NR 661.0004(1)(h)1. 1. Only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance.

NR 661.0004(1)(h)2. 2. Reclamation does not involve controlled flame combustion, such as occurs in boilers, industrial furnaces, or incinerators.

NR 661.0004(1)(h)3. 3. The secondary material is never accumulated in the tanks for more than 12 months without being reclaimed.

NR 661.0004(1)(h)4. 4. The reclaimed material is not used to produce a fuel or used to produce products that are used in a manner constituting disposal.

NR 661.0004(1)(i) (i) All of the following:

NR 661.0004(1)(i)1. 1. Spent wood preserving solutions that have been reclaimed and are reused for their original intended purpose.

NR 661.0004(1)(i)2. 2. Wastewaters from the wood preserving process that have been reclaimed and are reused to treat wood.

NR 661.0004(1)(i)3. 3. Prior to reuse, the wood preserving wastewaters and spent wood preserving solutions described in subds. 1. and 2., so long as they meet all of the following conditions:

NR 661.0004(1)(i)3.a. a. The wood preserving wastewaters and spent wood preserving solutions are reused on-site at waterborne plants in the production process for their original intended purpose.

NR 661.0004(1)(i)3.b. b. Prior to reuse, the wastewaters and spent wood preserving solutions are managed to prevent release to either land or groundwater or both.

NR 661.0004(1)(i)3.c. c. Any unit used to manage wastewaters or spent wood preserving solutions prior to reuse can be visually or otherwise determined to prevent such releases.

NR 661.0004(1)(i)3.d. d. Any drip pad used to manage the wastewaters or spent wood preserving solutions prior to reuse complies with the standards in subch. W of ch. NR 665, regardless of whether the plant generates a total of less than 100 kg/month of hazardous waste.

NR 661.0004(1)(i)3.e. e. Prior to operating pursuant to this exclusion, the plant owner or operator prepares a one-time notification stating that the plant intends to claim the exclusion, giving the date on which the plant intends to begin operating under the exclusion, and containing the following language: “I have read the applicable regulation establishing an exclusion for wood preserving wastewaters and spent wood preserving solutions and understand it requires me to comply at all times with the conditions set out in the regulation.” The plant shall maintain a copy of the notification in its on-site records until closure of the facility. The exclusion applies so long as the plant meets all of the conditions. If the plant goes out of compliance with any condition, it may apply to the department for reinstatement. The department may reinstate the exclusion upon finding that the plant has returned to compliance with all conditions and that the violations are not likely to recur.

NR 661.0004(1)(j) (j) EPA hazardous waste numbers K060, K087, K141, K142, K143, K144, K145, K147, and K148, and any wastes from the coke by-products processes that are hazardous only because they exhibit the Toxicity Characteristic, TC, specified in s. NR 661.0024 when, subsequent to generation, these materials are recycled to coke ovens, to the tar recovery process as a feedstock to produce coal tar, or mixed with coal tar prior to the tar’s sale or refining. This exclusion is conditioned on there being no land disposal of the wastes from the point the wastes are generated to the point they are recycled to coke ovens or tar recovery or refining processes, or mixed with coal tar.

NR 661.0004(1)(k) (k) Nonwastewater splash condenser dross residue from the treatment of K061 in high temperature metals recovery units, provided the residue is shipped in drums, if shipped, and not land disposed before recovery.

NR 661.0004(1)(L) (L) All of the following:

NR 661.0004(1)(L)1. 1. Oil-bearing hazardous secondary material that are generated at a petroleum refinery, SIC code 2911, and are inserted into the petroleum refining process, SIC code 2911, including distillation, catalytic cracking, fractionation, or thermal cracking units, unless the material is placed on the land, or speculatively accumulated before being recycled. Materials inserted into thermal cracking units are excluded under this subdivision, provided that the coke product also does not exhibit a characteristic of hazardous waste. Oil-bearing hazardous secondary material may be inserted into the same petroleum refinery where they are generated, or sent directly to another petroleum refinery and still be excluded under this provision. Except as provided in subd. 2., oil-bearing hazardous secondary materials generated elsewhere in the petroleum industry are not excluded under this subdivision. Residuals generated from processing or recycling materials excluded under this subdivision, where such materials as generated would have otherwise met a listing under subch. D, are designated as F037 listed wastes when disposed or intended for disposal.

NR 661.0004(1)(L)2. 2. Recovered oil that is recycled in the same manner and with the same conditions as described in subd. 1. Recovered oil is oil that has been reclaimed from secondary material, including wastewater, generated from normal petroleum industry practices, including refining, exploration and production, bulk storage, and transportation incident to those practices, SIC codes 1311, 1321, 1381, 1382, 1389, 2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172. Recovered oil does not include oil-bearing hazardous wastes listed in subch. D; however, oil recovered from such wastes may be considered recovered oil. “Recovered oil” does not include used oil as defined in s. NR 679.01.

NR 661.0004(1)(m) (m) Excluded scrap metal, which is processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal being recycled.

NR 661.0004(1)(n) (n) Shredded circuit boards being recycled provided they are all of the following:

NR 661.0004(1)(n)1. 1. Stored in containers sufficient to prevent a release to the environment prior to recovery.

NR 661.0004(1)(n)2. 2. Free of mercury switches, mercury relays and nickel-cadmium batteries and lithium batteries.

NR 661.0004(1)(o) (o) Condensates derived from the overhead gases from kraft mill steam strippers that are used to comply with s. NR 464.06 (5). The exemption applies only to combustion at the mill generating the condensates.

NR 661.0004(1)(q) (q) Spent materials as defined in s. NR 661.0001 (3) (a), other than hazardous wastes listed in subch. D, generated within the primary mineral processing industry from which minerals, acids, cyanide, water, or other values are recovered by mineral processing or by beneficiation, if all of the following are met:

NR 661.0004(1)(q)1. 1. The spent material is legitimately recycled to recover minerals, acids, cyanide, water, or other values.

NR 661.0004(1)(q)2. 2. The spent material is not accumulated speculatively.

NR 661.0004(1)(q)3. 3. Except as provided in subd. 4, the spent material is stored in tanks, containers, or buildings meeting the following minimum integrity standards: a building shall be an engineered structure with a floor, walls, and a roof all of which are made of non-earthen materials providing structural support, except smelter buildings may have partially earthen floors provided the secondary material is stored on the non-earthen portion, and have a roof suitable for diverting rainwater away from the foundation; a tank shall be free standing, not be a surface impoundment as defined in s. NR 660.10 (115), and shall be manufactured of a material suitable for containment of its contents; a container shall be free standing and be manufactured of a material suitable for containment of its contents. If tanks or containers contain any particulate that may be subject to wind dispersal, the owner or operator shall operate these units in a manner that controls fugitive dust. Tanks, containers, and buildings shall be designed, constructed and operated to prevent significant releases to the environment of these materials.

NR 661.0004(1)(q)4. 4. The department may make a site-specific determination, after public review and comment, that only solid mineral processing spent material may be placed on pads rather than tanks containers, or buildings. Solid mineral processing spent materials may not contain any free liquid. The department shall affirm that pads are designed, constructed and operated to prevent significant releases of the secondary material into the environment. Pads shall provide the same degree of containment as tanks, containers, and buildings that meet the design, construction, and operating requirements in subd. 3.

NR 661.0004(1)(q)4.a. a. The department shall also consider if storage on pads poses the potential for significant releases via groundwater, surface water, and air exposure pathways. Factors to be considered for assessing the groundwater, surface water, and air exposure pathways are: the volume and physical and chemical properties of the secondary material, including its potential for migration off the pad; the potential for human or environmental exposure to hazardous constituents migrating from the pad via each exposure pathway; and the possibility and extent of harm to human and environmental receptors via each exposure pathway.

NR 661.0004(1)(q)4.b. b. Pads shall meet the following minimum standards: be designed of non-earthen material that is compatible with the chemical nature of the mineral processing spent material, capable of withstanding physical stresses associated with placement and removal; have run-on and runoff controls; be operated in a manner which controls fugitive dust; and have integrity assurance through inspections and maintenance programs.

NR 661.0004(1)(q)4.c. c. Before making a determination under this subdivision, the department shall provide notice and the opportunity for comment to all persons potentially interested in the determination. This may be accomplished by placing notice of this action in major local newspapers or broadcasting notice over local radio stations.

NR 661.0004(1)(q)5. 5. The owner or operator provides notice to the department providing the following information: the types of materials to be recycled; the type and location of the storage units and recycling processes; and the annual quantities expected to be placed in land-based units. This notification shall be updated when there is a change in the type of materials recycled or the location of the recycling process.

NR 661.0004(1)(q)6. 6. For the purposes specified in sub. (2) (g), mineral processing spent materials shall be the result of mineral processing and may not include any listed hazardous wastes. Listed hazardous wastes and characteristic hazardous wastes generated by non-mineral processing industries are not eligible for the conditional exclusion from the definition of solid waste.

NR 661.0004(1)(r) (r) Petrochemical recovered oil from an associated organic chemical manufacturing facility, where the oil is to be inserted into the petroleum refining process, SIC code 2911, along with normal petroleum refinery process streams, if all of the following are met:

NR 661.0004(1)(r)1. 1. The oil is hazardous only because it exhibits the characteristic of ignitability, D001, as defined in s. NR 661.0021 or exhibits the characteristic toxicity of benzene, D018, as defined in s. NR 661.0024.

NR 661.0004(1)(r)2. 2. The oil generated by the organic chemical manufacturing facility is not placed on the land or speculatively accumulated before being recycled into the petroleum refining process. An “associated organic chemical manufacturing facility” is a facility where the primary SIC code is 2869, but where operations may also include SIC codes 2821, 2822, and 2865; and is physically co-located with a petroleum refinery; and where the petroleum refinery to which the oil being recycled is returned also provides hydrocarbon feedstocks to the organic chemical manufacturing facility. “Petrochemical recovered oil” means oil that has been reclaimed from secondary material, such as sludges, byproducts, or spent materials, including wastewater, from normal organic chemical manufacturing operations, as well as oil recovered from organic chemical manufacturing processes.

NR 661.0004(1)(s) (s) Spent caustic solutions from petroleum refining liquid treating processes used as a feedstock to produce cresylic or naphthenic acid, unless the material is placed on the land or accumulated speculatively as defined in s. NR 661.0001 (3).

NR 661.0004(1)(t) (t) Hazardous secondary material used to make zinc fertilizers, provided that all of the following conditions are met:

NR 661.0004(1)(t)1. 1. Hazardous secondary material used to make zinc micronutrient fertilizers may not be accumulated speculatively, as defined in s. NR 661.0001 (3) (h).

NR 661.0004(1)(t)2. 2. Generators and intermediate handlers of zinc-bearing hazardous secondary material that are to be incorporated into zinc fertilizers shall do all of the following:

NR 661.0004(1)(t)2.a. a. Submit a one-time notice to the department that contains the name, address and EPA identification number of the generator or intermediate handler facility, provides a brief description of the secondary material that will be subject to the exclusion, and identifies when the manufacturer intends to begin managing excluded, zinc-bearing hazardous secondary material under the conditions specified in this paragraph.

NR 661.0004(1)(t)2.b. b. Store the excluded secondary material in tanks, containers, or buildings that are constructed and maintained in a way that prevents releases of the secondary material into the environment. At a minimum, any building used for that purpose shall be an engineered structure made of non-earthen materials that provide structural support, and shall have a floor, walls and a roof that prevent wind dispersal and contact with rainwater. Tanks used for that purpose shall be structurally sound and, if outdoors, shall have roofs or covers that prevent contact with wind and rain. Containers used for that purpose shall be kept closed except when it is necessary to add or remove material, and shall be in sound condition. Containers that are stored outdoors shall be managed within storage areas that have containment structures or systems sufficiently impervious to contain leaks, spills and accumulated precipitation; provide for effective drainage and removal of leaks, spills and accumulated precipitation; and prevent run-on into the containment system.

NR 661.0004(1)(t)2.c. c. With each off-site shipment of excluded hazardous secondary material, provide written notice to the receiving facility that the material is subject to the conditions of this paragraph.

NR 661.0004(1)(t)2.d. d. Maintain at the generator’s or intermediate handlers’ facility for no less than 3 years records of all shipments of excluded hazardous secondary material. For each shipment those records shall at a minimum contain the name of the transporter and date of the shipment; the name and address of the facility that received the excluded material, and documentation confirming receipt of the shipment; and the type and quantity of excluded secondary material in each shipment.