Current through August 26, 2024
(1) GENERAL.
(a) Industrial byproducts that are
beneficially used under this chapter shall be characterized, as specified in
this section, to determine their eligible uses under s.
NR 538.10. A generator, or the generator's designee,
shall report the results of this characterization to the department as
specified in s.
NR 538.14(1). The department shall reply
with a written concurrence within 10 business days provided the applicant meets
the applicable criteria of this chapter. The department has the option of
concurring with the characterization, requesting additional information or
analysis, determining that a case-specific approval under s. NR 538.09 is
required, or issuing a non-concurrence decision. If the department does not
respond to a certification request within 10 business days, the certification
is deemed complete and concurrence is considered granted. The department may
approve eligible uses for industrial byproducts that do not meet the listed
characterization criteria on a case-specific basis in accordance with s. NR 538.09.
(b) For those materials not
explicitly listed in, and which are subject to the requirements of the "Other"
materials column of ch. NR 538 Appendix Tables 1 and 2, the department may do
any of the following:
1. Exempt the
requirement to analyze for certain parameters on a material-specific
basis.
2. Require analysis for
additional parameters on a material-specific basis in order to demonstrate
compliance with performance standards identified at s.
NR 538.04.
3.
Require the applicant submit a testing program plan, which the department must
approve in writing prior to commencement of
characterization.
(2) INITIAL CHARACTERIZATION. A
representative sample of each industrial byproduct shall be properly
characterized prior to beneficial use to determine its eligible uses under s.
NR 538.10. Samples shall be obtained at the point of
accumulation nearest to where the byproduct is generated. A case-specific
approval under s. NR 538.09 may be required by the department if the byproduct
is subject to any deliberate post-accumulation processing, excluding mechanical
size reduction or sorting and the application of water to improve handling or
as dust suppression.
(3)
CHARACTERIZATION METHODS.
(a)
General. The limits of detection used in the characterization
shall be at or below the concentrations listed in ch. NR 538 Appendix, Tables 1
to 3 for each parameter. When a limit of detection at or below a standard is
not achievable, 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 alternate methods are otherwise approved by the department in writing.
The generator shall report the limit of detection and the limit of quantitation
with the sample results. If a substance is detected below the limit of
quantitation, the detected value with the appropriate qualifier shall be
reported.
(b)
Hazardous
waste determination. All industrial byproducts that are to be
beneficially used under this chapter shall first be determined not to be a
hazardous waste, as defined under s.
NR 660.10(52), using a method specified
under ch.
NR 662.011. The generator shall provide supporting
documentation of the waste determination along with the initial certification
submitted to the department as specified in sub. (1).
Note: Supporting documentation may include
representative sampling and analysis, safety data sheets, published
information, process flow diagrams, profiles developed from the prior handling
of industrial byproducts, or supported process knowledge.
(c)
Water leach test. All
industrial byproducts, except byproducts to be used as a soil or plant additive
in accordance with s.
NR 538.10(5), shall be analyzed using
ASTM D3987-12 water leach test as specified in ch. NR 538 Appendix, Table
1.
(d)
Bulk
analysis. All industrial byproducts, except byproducts to be used as a
soil or plant additive in accordance with s.
NR 538.10(5), shall be analyzed using a
bulk analysis for the parameters in ch. NR 538 Appendix, Table 2, unless
another analytical method is approved by the department in writing.
(e)
Flue gas desulfurization
analysis. All flue gas desulfurization materials to be marketed and
used as soil or plant additives in accordance with s.
NR 538.10(5) shall be analyzed using a
total elemental analysis for the parameters in ch. NR 538 Appendix, Table 3,
unless another analytical method or parameters are approved by the department
in writing.
(f)
Select
foundry sand. Generators may request that the department designate
their foundry industrial byproducts as select foundry sand with their initial
certification notification under sub. (1) (a) or recharacterization under sub.
(5) provided they submit supporting documentation to the department
demonstrating that the foundry byproducts meet the definition under s.
NR 538.03(12m) and have been determined
to contain less than the concentration specified for the parameters listed in
ch. NR 538 Appendix, Table 1, Column B. Supporting documentation shall include
evidence of segregation which may include process flow diagrams, written
material handling and segregation procedures, or byproduct management
summaries. If the department determines that the foundry byproduct meets the
definition, the department shall reply with a written concurrence of the
designation within 10 business days provided the applicant meets the applicable
criteria of this chapter. If the department does not respond to a notification
within 10 business days, the notification is deemed complete and concurrence is
considered granted.
(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.
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.
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.
(5)
RECHARACTERIZATION.
(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.
(b) Industrial byproducts
shall be recharacterized as follows:
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.
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.
(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.
(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.
Note: This section is shown as repealed and
recreated eff. 11-1-20 by CR 19-080. Prior to 11-1-20 it reads:
NR 538.06 Industrial byproduct characterization.
(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.
(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.
(3) CHARACTERIZATION METHODS.
(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.
(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.
(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.
(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.
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.
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.
(4) RECHARACTERIZATION.
(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.
(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.
(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.
(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.
(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.
