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Beneficial use of industrial byproducts

New rules effective Nov. 1

After collecting input from the public and a technical advisory committee, the rules governing the beneficial use of industrial byproducts underwent significant revisions to reflect new environmental standards, byproducts and uses. The revised ch. NR 538, Wis. Adm. Code, took effect Nov. 1, 2020.

Wisconsin's voluntary beneficial use of industrial byproducts program encourages the use of industrial byproducts in a productive manner as an alternative to sending these materials to solid waste landfills. Industrial byproducts may include:

  • paper mill sludge;
  • combustion ash, including coal combustion residuals such as fly ash, bottom ash, boiler slag and material captured in flue gas desulfurization systems;
  • ferrous, steel, aluminum foundry excess system sand and aluminum slag;
  • byproducts from the production of lime including lime kiln dust; and
  • nonhazardous solid waste with similar characteristics as determined by the Department of Natural Resources.

Waste materials that are not regulated under the beneficial use program include:

  • post-consumer waste or the byproducts of combusting or processing post-consumer waste;
  • ash from solid waste incinerators;
  • iron and steel foundry slag exempted under ss. 289.01(33) and 287.29, Wis. Stats.;
  • dredge material regulated under s. NR 500.08(3) Wis. Adm. Code.

The program encourages environmentally responsible use of industrial byproducts to preserve resources, conserve energy, and reduce or eliminate the need for landfill disposal, as well as reduce the need for additional quarries and soil borrow pits. Approximately 3 million tons of industrial byproducts are generated in Wisconsin each year.

Section 289.05(4), Wis. Stats., encourages beneficial use of industrial byproducts. Since the law passed in 1985, the DNR has approved many beneficial uses, at first on a case-by-case basis, then under general exemptions. Chapter NR 538, Wis. Adm. Code, first enacted in 1997, provides the regulatory framework for using industrial byproducts in a beneficial way.

The industrial byproducts listed at the top of this page, along with some other types of solid waste, may also be suitable for use in public works projects.

How to participate in the program

Generators of industrial byproducts may choose to participate in the beneficial use program and follow its requirements, including reporting to the DNR.

Initial certification

To participate in the program, a generator must characterize the industrial byproduct material(s) intended for beneficial use in accordance with s. NR 538.06 and compare it to the standards in the appendix to determine potential eligible uses. Once the industrial byproduct material has been characterized properly, the generator, or the generator's designee, must report the results of this characterization to the DNR using Form 4400-197.

The DNR will reply with a written concurrence within 10 business days, provided the applicant meets the applicable criteria. The DNR has the option of concurring with the characterization, requesting additional information or analysis, determining that a case-specific approval is required, or issuing a non-concurrence decision.

Many beneficial uses allowed under NR 538 can proceed without specific approval once the DNR has concurred with the “eligible uses” from the initial certification. Additional DNR notification and concurrence may be needed for certain geotechnical fill applications.

The DNR 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. The initial characterization includes a bulk analysis and a water leach test on a representative sample of the byproduct material in accordance with ss. NR 538.06(2) and NR 538.06(3).

Please contact the DNR beneficial use coordinator if you have any questions concerning participation in the program or the eligible beneficial uses of the material.

Recertification

NR 538 requires each generator of industrial byproducts that have been beneficially used under NR 538,  operator of a non-exempt storage facility for industrial byproducts, or the designee of the generator or operator, to submit recertification information used to determine the eligible use of each industrial byproduct every four years or after a process change in accordance with s. NR 538.06(5). The information may be submitted using Form 4400-197.

A representative sample of each industrial byproduct must be recharacterized in accordance with ch. NR 538 Appendix, Tables 1 and 2, at a minimum of once every four years from the date of the initial certification or the last recharacterization. Recharacterization is not required for any industrial byproduct of which less than 1,000 cubic yards were beneficially used or stored for beneficial use in any calendar year during the previous four-year period.

Annual certification

NR 538 requires industrial byproduct generators participating in the beneficial use program to report to the DNR every year on their reuse activities. The report, which covers activity during the previous calendar year, is generally available in by Jan. 1 and must be submitted to the DNR by March 31 of the following year.

For reporting year 2020, the DNR is offering the option of electronic reporting through an online reporting system. For generators who do not wish to utilize the online reporting system, Form 4400-198 is still available.

Requesting access to the online reporting system

To use the online reporting system, you must first obtain a web access management system (WAMS) ID and register for access on the DNR switchboard. If you submit other online reports, such as hazardous waste annual reporting, you may already have a valid DNR WAMS ID. If you do not already have an ID, please register before you begin the report process.

Step-by-step instructions for logging in to online reporting system

  1. Find your personal WAMS ID and password.
  2. Go to the DNR Switchboard and click the "Log in" button near the top.
  3. Enter your WAMS ID and password in the corresponding boxes.
  4. Click on the Log In button.
  5. For instructions on filling out the online form, please refer to Annual Certification Report Electronic Submittal Instructions

Certifying beneficial use report information

After submitting your data through the online reporting system, the one-page certification form must be printed and signed by the waste report certifier at your site (whose name will be preprinted on the document). Send only this page of the report to the DNR at the address that is printed at the top of the form or to:

Beneficial Use Coordinator - WA/5
PO Box 7921
Madison WI 53707-7921

Project notification

Each generator, or a person designated by the generator such as a broker, must submit written notification to the department prior to initiating a geotechnical fill project when required under ss. NR 538.10(2) and NR 538.12 using Form 4400-199.

For proposed projects that require submission of a written notification, the DNR will reply with a written concurrence within 10 business days, provided the applicant meets the applicable criteria. If the DNR determines that the proposal does not demonstrate that the project will meet the applicable criteria, the DNR will provide a written notice of non-concurrence within 10 business days, noting any deficiencies and allowing the applicant an opportunity to correct them or provide additional information.