NR 132.111 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (4), (10) made under s. 35.17, Stats., Register December 2021 No. 792. NR 132.112(1)(1)
Authority to grant exemptions and variances. The department may grant an exemption or variance, as provided in this section, from any of the requirements of this chapter applicable to any of the following:
NR 132.112(1)(a)
(a) A mining permit application, including the mining plan, reclamation plan, monitoring plan, mining waste site feasibility study, and mining waste site plan of operation.
NR 132.112(2)
(2)
Exemption and variance requests submitted as part of the mining permit application process. NR 132.112(2)(a)(a) To the extent feasible, an applicant shall submit all requests for exemptions or variances under this section as part of an application for a mining permit or the mining waste site feasibility report or plan of operation and shall describe the grounds for the exemption or variance including documentation identifying the physical conditions that necessitate the exemption or variance, other reasons for the exemption or variance, discussion of any environmental impacts that will result from issuance of the exemption or variance, mitigation measures, if any, proposed to offset adverse impacts resulting from the exemption or variance, and the reasonableness of the exemption or variance.
NR 132.112(2)(b)
(b) An applicant shall submit an application for an exemption or variance under this subsection no later than 60 days after the mining permit application is considered complete under s.
293.495 (1) (a) 2., Stats. The department may consider an application for an exemption or variance submitted after that time, but only if the application is received in time to allow the application to be considered at the public informational hearing for the mining permit under s.
293.43 (3m), Stats.
NR 132.112(2)(c)
(c) The department shall issue a decision on a request for an exemption or variance as part of the decision on the mining permit under s.
NR 132.114 and, except as provided in par.
(d), the department shall grant the exemption or variance if it is consistent with the purposes of this chapter and ch.
293, Stats., will not violate any applicable state environmental law outside of this chapter and ch.
293, Stats., will not endanger public health, safety, or welfare and will not result in significant adverse environmental impacts on or off the mining site.
NR 132.112(2)(d)
(d) The department shall deny a request for an exemption or variance if granting the exemption or variance will result in a violation of federal law.
NR 132.112(2)(e)
(e) If federal law imposes a standard for an exemption that differs from the standard in par.
(c) and that cannot be modified by state law, and if that standard has been approved by the federal government for use by the state through a delegation agreement, federally approved state implementation plan, or other program approval, then the department shall determine whether to grant the request for the exemption using the federal standard.
NR 132.112(3)
(3)
Exemption and variance requests submitted after permit application review period and before issuance of mining permit. If an applicant submits a request for a variance or exemption under this section more than 60 days after the mining permit application is considered complete but before the department issues or denies the mining permit, the application for an exemption or variance shall be processed following the provisions of s.
293.495 (1) (c), Stats.
NR 132.112(4)
(4)
Exemption and variance requests submitted after issuance of mining permit. The department shall process exemption and variance requests under this section submitted after issuance of a mining permit as a modification under s.
293.55, Stats., and s.
NR 132.120.
NR 132.112(5)
(5)
Request for further study and analysis. The department may require the applicant submitting the request for a variance or exemption to conduct specific studies and analyses and submit additional supporting documentation, as necessary, to facilitate the review of the request by the department.
NR 132.112 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.113
NR 132.113 Timeline for review of mining permit application. NR 132.113(1)(1)
Subject to subs.
(4) and
(5), within 180 days after an applicant submits an application for a mining permit, an environmental impact report, if required, and any applications for other approvals, licenses, or permits relating to the mining operation, the department shall review the information submitted and, if necessary, provide comments to the applicant and request additional information from the applicant relating to the proposed mining project. The applicant shall provide any additional information required under this section in a manner and format prescribed by the department.
NR 132.113(2)
(2) Subject to subs.
(4) and
(5), if the department requests additional information from an applicant under sub.
(1), within 90 days after the applicant provides additional information the department shall review the information submitted and, if necessary, provide comments to the applicant and request additional information from the applicant relating to the proposed mining project.
NR 132.113(3)
(3) Subject to sub.
(5), if the department requests additional information from an applicant under sub.
(2), within 180 days after the applicant provides additional information the department shall prepare a draft environmental impact statement, a draft mining permit, and draft approvals, licenses, or permits relating to the mining operation. If the department requests additional information from an applicant under sub.
(1), but not under sub.
(2), the department shall prepare these draft documents within 180 days after the expiration of the 90-day period under sub.
(2). If the department does not request additional information from an applicant under sub.
(1) or
(2), the department shall prepare those draft documents within 180 days after the expiration of the 180-day period under sub.
(1).
NR 132.113(4)
(4) Subject to sub.
(5), if before the expiration of the 90-day period under sub.
(2) the secretary of the department determines that the applicant has made a substantial modification to the mining plan or reclamation plan that significantly changes the information necessary to prepare an environmental impact statement or adequately review an application, the department shall notify the applicant of the secretary's determination and request additional information from the applicant. In reaching this determination, the department shall consider the extent to which the modification necessitates new data collection programs and analyses or substantive expansions or modifications of ongoing monitoring activities and analyses. Upon submission of additional information by the applicant, the timeline under this section shall begin again, starting with the period described in sub.
(1). A determination by the secretary under this subsection is not subject to administrative or judicial review and may be made only once during an applicant's permitting process.
NR 132.113(5)
(5) The department and the applicant may agree to modify all or part of the timeline under this section.
NR 132.113(6)
(6) The department may request additional information needed to process a mining permit application or any other application for an approval, license, or permit related to the mining operation after making requests for additional information under this section, but the department may not delay the application and review process based on another request for additional information.
NR 132.113 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.114(1)(1)
Unless denied pursuant to s.
NR 132.115 and except with respect to property specified in s.
41.41 (11), Stats., within 90 days of the completion of the record for the public hearing held under s.
293.43, Stats., the department shall issue the mining permit if it finds all of the following:
NR 132.114(1)(a)
(a) The mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site consistent with this chapter and ch.
293, Stats., and the mining plan and reclamation plan are approved as part of the mining permit.
NR 132.114(1)(b)
(b) The proposed operation will comply with all applicable air, groundwater, surface water, and solid and hazardous waste management laws and rules implemented by the department.
NR 132.114(1)(c)
(c) The technology that will be used at the proposed operation is capable of resulting in compliance with all applicable air, groundwater, surface water, and solid and hazardous waste management laws and rules of the department and is reasonably certain to result in compliance with these laws and rules at the proposed mining site.
NR 132.114(1)(d)
(d) In the case of a surface mine, the site is not unsuitable for mining.
NR 132.114(1)(e)
(e) The proposed mining operation will not endanger public health, safety, or welfare.
NR 132.114(1)(f)
(f) The proposed mining operation will result in a net positive economic impact in the area reasonably expected to be most impacted by the activity.
NR 132.114(1)(g)
(g) The proposed mining operation conforms with all applicable zoning ordinances.
NR 132.114(2)
(2) The department shall make an approval or denial in findings of fact, conclusions of law, and an order setting forth reasons with clarity and in detail. The department may modify or conditionally approve the operator's proposed mining or reclamation plans in order to meet the requirements of this chapter, and, as modified or conditioned, grant its approval.
NR 132.114(3)
(3) Except as otherwise provided in ss.
293.53 (2),
293.55 to
293.59,
293.63,
293.81, and
293.83, Stats., mining permits shall be valid for the life of the project unless canceled under s.
293.83 (1) or
(3) or
293.85, Stats., or revoked under s.
293.87 (2) or
(3), Stats. Unless previously modified, canceled, or revoked, the mining permit issued under this section shall remain valid until reclamation of the entire mining site has been certified as complete under s.
NR 132.122 and the department issues a revised mining permit under s.
NR 132.122 (7) (b).
NR 132.114 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.115(1)(1)
Within 90 days of the completion of the record for the public hearing held under s.
293.43, Stats., the department shall deny the mining permit if it finds any of the following:
NR 132.115(1)(a)
(a) That the site is unsuitable for surface mining, if the application is for a proposed surface mine.
NR 132.115(1)(b)
(b) That the applicant has violated and continues to fail to comply with this chapter, ch.
293, Stats., or any rule adopted under ch.
293, Stats.
NR 132.115(1)(c)
(c) That any of the following situations may reasonably be expected to occur during or subsequent to mining:
NR 132.115(1)(c)1.
1. Landslides or substantial deposition from the proposed operation in stream or lake beds which cannot be feasibly prevented.
NR 132.115(1)(c)2.
2. Significant surface subsidence that cannot be reclaimed because of the geologic characteristics present at the proposed site.
NR 132.115(1)(c)3.
3. Hazards resulting in irreparable damage to any of the following that cannot be prevented under the requirements of this chapter, avoided to the extent applicable by removal from the area of hazard, or mitigated by purchase or by obtaining the consent of the owner:
NR 132.115(1)(c)4.
4. Irreparable environmental damage to lake or stream bodies despite adherence to the requirements of this chapter. This subdivision does not apply to an activity that the department has authorized pursuant to statute, except that the destruction or filling in of a lakebed shall not be authorized notwithstanding any other provision of law.
NR 132.115(1)(d)
(d) That the applicant, principal shareholder of the applicant, or a related person has, within 10 years before the application is submitted, forfeited a mining reclamation bond that was posted in accordance with a permit or other approval for a mining operation in the United States, unless the forfeiture was by agreement with the person for whose benefit the bond was posted and the amount of the bond was sufficient to cover all costs of reclamation.
NR 132.115(1)(e)
(e) That the applicant, a related person, or an officer or director of the applicant has, within 10 years before the application is submitted, been convicted of more than one felony for violations of laws for the protection of the natural environment arising out of the operation of a mining site in the United States, unless any of the following applies:
NR 132.115(1)(e)2.
2. The person convicted is a related person or an officer or director of the applicant with whom the applicant terminates its relationship.
NR 132.115(1)(e)3.
3. The applicant included in its permit application under s.
NR 132.107 plans to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.
NR 132.115(1)(f)
(f) That the applicant or a related person has, within 10 years before the application is submitted, filed a petition for bankruptcy or undergone dissolution that resulted in the failure to reclaim a mining site in the United States in violation of a state or federal law and that failure has not been remedied and is not being remedied.
NR 132.115(1)(g)
(g) That, within 10 years before the application is submitted, a mining permit or other mining approval issued to the applicant or a related person was permanently revoked because of a failure to reclaim a mining site in the United States in violation of state or federal law and that failure has not been and is not being remedied.
NR 132.115(2)
(2) The department may not deny a mining permit under sub.
(1) (d) to
(g) if the person subject to the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution is a related person but the applicant shows that the person was not the parent corporation of the applicant, a person that holds more than a 30 percent ownership in the applicant, or a subsidiary or affiliate of the applicant in which the applicant holds more than a 30 percent interest at the time of the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution.
NR 132.115(3)
(3) If the department denies an application for a mining permit, the department shall furnish the operator findings of fact, conclusions of law, and an order setting forth the reasons for denial.
NR 132.115 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.116
NR 132.116 Reclamation bond and other financial assurance securities. NR 132.116(1)(a)
(a) Upon notification that a mining permit has been issued by the department but prior to commencing mining, the operator shall file with the department a bond conditioned on faithful performance of all of the requirements of this chapter and ch.
293, Stats. In lieu of a bond, the operator may deposit cash, certificates of deposit, or government securities with the department. Interest received on certificates of deposit and government securities shall be paid to the operator. The amount of the bond or other security required shall be equal to the estimated cost to the state of fulfilling the reclamation plan, in relation to that portion of the site that will be disturbed by the end of the following year. The department shall determine the estimated cost of reclamation of each mining site on the basis of relevant factors including expected changes in the price index, topography of the site, methods being employed, depth and composition of overburden, and depth of nonferrous metallic mineral deposit being mined.
NR 132.116(1)(b)
(b) The department, as provided under s.
293.53 (1) (a), Stats., may increase the amount of the bond, cash, certificates of deposit, or government security filed under par.
(a), to assure adequate financing for the reclamation plan.
NR 132.116(1)(c)
(c) A bond filed under par.
(a) shall be issued by a surety company licensed to do business in Wisconsin. If the surety company's license to do business is revoked or suspended, the operator, within 30 days after receiving written notice thereof from the department, shall substitute surety underwritten by a surety company licensed to do business in Wisconsin. Upon failure of the operator to make a substitution, the department shall suspend the operator's mining permit until an acceptable substitute surety has been submitted.
NR 132.116(1)(d)
(d) A bond filed under par.
(a) shall provide that the bond shall not be canceled by the surety, except after not less than 90 days' notice to the department in writing by registered or certified mail. Not less than 30 days prior to the expiration of the 90-day notice of cancellation, the operator shall deliver to the department a replacement bond in the absence of which all mining shall cease.
NR 132.116(2)
(2) Upon notification that a mining permit has been issued by the department but prior to commencing mining, the operator shall file with the department a bond issued by a surety company licensed to do business in this state, cash, certificates of deposit, or government security, to cover unforeseen remedial contingencies not otherwise covered by the bonds or other security required under sub.
(1) or
(5), including for the provision of a replacement water supply if required under s.
293.65 (4) (d), Stats. The amount of the bond or other security required shall be 10 percent of the total amount of the bonds or other security required under subs.
(1) and
(5). The operator shall increase, and may decrease, the amount of the bond or other security under this subsection according to any increase or decrease in the amount of the bonds or other security required under sub.
(1) or
(5) until the operator ceases to extract material from the mining site, at which point the amount of the bond or other security under this subsection shall remain the same until released by the department. The bond or other security under this subsection shall be released no later than 40 years after the operator ceases to extract material from the mining site.
NR 132.116(3)
(3) The applicant shall submit a certificate of insurance certifying that the applicant has in force a liability insurance policy issued by an insurer authorized to do business in this state, or in lieu of a certificate of insurance evidence that the applicant has satisfied state or federal self-insurance requirements, covering all mining operations of the applicant in this state and affording personal injury and property damage protection in a total amount deemed adequate by the department but not less than $50,000.
NR 132.116(4)
(4) Upon approval of the financial instruments related to cost of reclamation under sub.
(1) and unforeseen remedial contingency costs under sub.
(2), and the certificate of insurance under sub.
(3), the department shall issue written authorization to commence mining at the permitted mining site in accordance with the mining permit and approved mining and reclamation plans.
NR 132.116(5)
(5) If the department approves a mining
waste site as part of a permitted mining project, the owner shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the long-term care requirements specified in the waste site feasibility study and plan of operation in accordance with ss.
293.51 (1g) and
289.41, Stats., and ch.
NR 182. Proof of financial responsibility for long term care shall be submitted prior to operation of the mining waste facility.
NR 132.116(6)
(6) The operator shall provide and maintain proof of financial responsibility as required under s.
293.51 (1r), Stats., related to replacement of engineered cover systems or water management control systems used at the mining site or mining waste site to avoid adverse environmental consequences following closure of the mining waste site. The department shall determine the amount of the security required under this subsection as provided in s.
293.51 (1r), Stats., and shall specify the amount as part of the mining permit and reclamation plan approval. An operator shall submit proof of financial responsibility under this subsection at the time of closure of the mining waste site and in accordance with provisions of ch.
NR 182.
NR 132.116 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (5) made under s. 35.17, Stats., Register December 2021 No. 792. NR 132.117(1)(1)
An operator shall monitor the mining site and adjacent areas in accordance with the monitoring plan approved as part of the mining permit. The department may require the operator to perform additional monitoring of environmental changes during the course of the permitted activity and for such additional periods of time as is necessary to satisfactorily complete reclamation of the mining site and long-term care of the mining waste facility.
NR 132.117(2)
(2) The department may monitor environmental changes concurrently with the operator as stated in sub.
(1) and for an additional period after the full reclamation bond is released under s.
293.63, Stats.
NR 132.117(3)(a)(a) The department shall review baseline data, monitoring data, and the monitoring plan at the time of annual permit review or at such time as the operator requests any modification of the mining permit, mining plan, reclamation plan, or monitoring plan.
NR 132.117(3)(b)
(b) The department shall consider baseline data and monitoring data in all enforcement actions including issuance of a stop order to an operator, requiring an immediate cessation of mining, in whole or in part, at any time that the department determines that there exists an immediate and substantial threat to public health and safety or the environment.
NR 132.117(3)(c)
(c) If the analyses of samples indicate the quality of the groundwater is statistically significantly different from either baseline or background, the operator shall notify the department immediately and implement applicable provisions of the contingency plan submitted under s.
NR 182.109 (2) (d).
NR 132.117(4)
(4) Any request for modification of the scope of the monitoring plan approved as part of the mining permit, including sampling parameters, monitoring locations and frequency and duration of sampling, shall comply with the procedures in s.
NR 132.120. Changes in monitoring equipment and sampling and analytical protocols may be reviewed and approved by the department and are not subject to the modification procedural requirements of s.
NR 132.120.
NR 132.117(5)
(5) An operator shall ensure that all laboratory chemical analyses required under the monitoring plan are conducted by a laboratory certified under s.
299.11, Stats., and ch.
NR 149 or other certification program applicable to specific test categories.
NR 132.117 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.118(1)(1)
Subject to applicable state and federal safety rules or regulations, any authorized officer, employee, or representative of the department may enter and inspect any property, premises or place on or at which any mining operation or facility is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and chs.
30,
281,
283,
285,
289 to
292, and
299, Stats., and rules adopted under those chapters.
NR 132.118(2)
(2) No operator may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor may any person obstruct, hamper, or interfere with any such inspection.
NR 132.118(3)
(3) The department shall furnish to the operator a written report on any inspection setting forth all observations, relevant information, and data that relate to compliance status.
NR 132.118 History
History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22. NR 132.119
NR 132.119 Reporting and mining permit review.
