Section 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:
(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).(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.(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).(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).(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).(6) CRITERIA AND PROCESS FOR USING ELIGIBILITY STANDARDS .(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.(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.(c) The following applies when a standard for a parameter listed in ch. NR 538 Appendix is below the lowest achievable limit of detection: 1. If a parameter is not detected in a sample, the standard shall be considered to have been met.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.3. If a parameter is reported at or above the limit of quantitation, the standard shall be considered exceeded. 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 538.08 Industrial byproduct categories. The categories of industrial byproducts, characterized in accordance with s. NR 538.06, for beneficial use under this chapter are as follows:
(1) CATEGORY 1 INDUSTRIAL BYPRODUCTS. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Tables 1A and 1B, are category 1 industrial byproducts.(2) CATEGORY 2 INDUSTRIAL BYPRODUCTS. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Tables 2A and 2B, and are not category 1 industrial byproducts are category 2 industrial byproducts. If in the total elemental analysis total polyaromatic hydrocarbons exceed 100 mg/kg, department concurrence is necessary prior to classification as a category 2 industrial byproduct. Unless authorized by the department the total elemental analysis for industrial byproducts not listed in Table 2B shall also include aluminum, antimony, barium, boron, cadmium, hexavalent chromium, cobalt, copper, lead, mercury, molybdenum, nickel, phenol, selenium, silver, strontium, thallium, vanadium and zinc.(3) CATEGORY 3 INDUSTRIAL BYPRODUCTS. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Table 2A, and are not category 1 or 2 industrial byproducts are category 3 industrial byproducts. Coal ashes are category 3 industrial byproducts if the concentration of boron is less than 3.4 mg/l and the concentration of all other parameters are less than those concentrations listed in ch. NR 538 Appendix I, Table 2A.(4) CATEGORY 4 INDUSTRIAL BYPRODUCTS. Industrial byproducts that have been determined to contain less than the concentration specified for the parameters listed in ch. NR 538 Appendix I, Table 3, and are not category 1 to 3 industrial byproducts are category 4 industrial byproducts.(5) CATEGORY 5 INDUSTRIAL BYPRODUCTS. Industrial byproducts that have been determined not to be a hazardous waste as defined in s. NR 660.10(52) and are not category 1 to 4 industrial byproducts are category 5 industrial byproducts.(6) CRITERIA AND PROCESS FOR USING CATEGORY STANDARDS. (a) If a standard for a parameter listed in ch. NR 538 Appendix I is above the limit of detection and the limit of quantitation, the standard shall be considered to be exceeded if the parameter is reported at or above the standard.(b) If a standard for a parameter listed in ch. NR 538 Appendix I is between the limit of detection and the limit of quantitation, inclusive, the standard shall be considered to be exceeded if the parameter is reported at or above the limit of quantitation.(c) The following applies when a standard for a parameter listed in ch. NR 538 Appendix I is below the lowest achievable limit of detection: 1. If a parameter is not detected in a sample, the standard will be considered to have been met.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 to be exceeded if the presence of that parameter has been confirmed by the use of an appropriate analytical method.3. If a parameter is reported at or above the limit of quantitation, the standard shall be considered to be exceeded.(7) CASE SPECIFIC. The department may review the characterization results for an industrial byproduct in response to a request from the generator of the industrial byproduct not defined in s. NR 538.03(4) and assign a category or categories for that material, or conditionally approve a beneficial use that does not meet the beneficial uses or standards specified in this chapter, on a case specific basis. The department may require additional information prior to a case specific approval. Any exemption or approval granted under this subsection shall be in accordance with the applicable requirements of s. 289.43(4), (7) and (8), Stats.Wis. Admin. Code Department of Natural Resources NR 538.08
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.Amended by, CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11/1/2020The department may revise this rule to add or remove parameters or revise standards if changes in ch. NR 140, or other information warrant modifications.