Section NR 538.06 - Industrial byproduct characterization(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.Wis. Admin. Code Department of Natural Resources § NR 538.06
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.Amended by, corrections in (3) (d) (Note [1]) made under s. 35.17, Stats., Register March 2017 No. 735, eff. 4/1/2017Amended by, CR 19-080: r. and recr. Register May 2020 No. 773, eff. 11/1/2020