Chapter NR 135

NR 135.20(3)(b) (b) Any person who resides within, owns property within or whose principal place of business is within 300 feet of the nonmetallic mining site may request a public informational hearing. The department shall hold a public hearing if requested by any of these persons within 30 days of the actual date of public notice under sub. (1), which shall be held no sooner than 30 days and no later than 60 days after being requested and shall be conducted as an informational hearing for the purpose of explaining and receiving comment from affected persons on the nature, feasibility, effects and other relevant aspects of the proposed nonmetallic mining and reclamation. The informational hearing shall be conducted using the procedures for a noncontested case hearing pursuant to ch. NR 2.

NR 135.20(3)(c) (c) The subject matter and testimony at this informational hearing shall be limited to reclamation of the nonmetallic mine site.

NR 135.20 Note Note: Informational hearings are limited to reclamation of the nonmetallic mining site. Regulatory authority staff conducting the hearings should make it clear that the hearings may not cover non-reclamation matters because they are beyond the scope of ch. NR 135 reclamation. Non-reclamation matters are those related to zoning or subject to other local authority. These matters may include but are not limited to: traffic, setbacks, blasting, dewatering, hours of operation, noise or dust control or the question of whether to use the land for mining.

NR 135.20 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (1), (2) (intro.) and (3) (a), r. (4) Register November 2006 No. 611, eff. 12-1-06.

NR 135.21 NR 135.21 Reclamation permit issuance.

NR 135.21(1) (1) Permit issuance. Unless denied pursuant to s. NR 135.22, the regulatory authority shall approve in writing an application submitted pursuant to s. NR 135.18 (1) to issue a nonmetallic mining reclamation permit for a proposed nonmetallic mine. The regulatory authority may issue a reclamation permit subject to conditions in sub. (2) if appropriate. The permit decision shall be made no sooner than 30 nor later than 90 days following receipt of the complete reclamation permit application and reclamation plan that meets the requirements of s. NR 135.19 pursuant to this subchapter, unless a public hearing is held pursuant to s. NR 135.20. If a public hearing is held, the regulatory authority shall issue the reclamation permit, subject to conditions pursuant to sub. (2) if appropriate, or shall deny the permit as provided in s. NR 135.22, no later than 60 days after completing the public hearing.

NR 135.21(2) (2) Conditions. The regulatory authority may issue a reclamation permit or approve a reclamation plan subject to general or site-specific conditions if needed to assure compliance with the nonmetallic mining reclamation requirements of this chapter. The approvals may not include conditions that are not related to reclamation. One required condition of the issued permit shall be that the new mine obtain financial assurance pursuant to s. NR 135.40 prior to beginning mining.

NR 135.21 Note Note: It is not appropriate for the regulatory authority to impose conditions on a reclamation permit, or the approval of a reclamation plan that address matters not directly related to nonmetallic mining reclamation. These matters may include but are not limited to: traffic, setbacks, blasting, dewatering, hours of operation, noise or dust control or the question of whether to use the land for mining.

NR 135.21(3) (3) Cooperative issuance by multiple authorities. If more than one regulatory authority has jurisdiction over a single nonmetallic mining site, the regulatory authorities shall cooperatively issue a single reclamation permit for the nonmetallic mining site. Any unresolvable issues may be referred to the department under s. NR 135.52.

NR 135.21 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: r. (1), renum. (2) to (4) to be (1) to (3) and am. Register November 2006 No. 611, eff. 12-1-06.

NR 135.22 NR 135.22 Denial of application for reclamation permit.

NR 135.22(1) (1) An application to issue a nonmetallic mining reclamation permit shall be denied, within the time frame for permit issuance specified in s. NR 135.21, if the regulatory authority finds any of the following:

NR 135.22(1)(a) (a) The applicant has, after being given an opportunity to make corrections, failed to provide an adequate permit application, reclamation plan, financial assurance or any other submittal required by this chapter or the applicable reclamation ordinance to the regulatory authority.

NR 135.22(1)(b) (b) The proposed nonmetallic mining site cannot be reclaimed in compliance with the reclamation standards contained in the applicable reclamation ordinance, this chapter or subch. I of ch. 295, Stats.

NR 135.22(1)(c) (c)

NR 135.22(1)(c)1. 1. The applicant, or its agent, principal or predecessor has, during the course of nonmetallic mining in Wisconsin within 10 years of the permit application or modification request being considered shown a pattern of serious violations of this chapter or of federal, state or local environmental laws related to nonmetallic mining reclamation.

NR 135.22(1)(c)2. 2. The following may be considered in making this determination of a pattern of serious violations:

NR 135.22(1)(c)2.a. a. Results of judicial or administrative proceedings involving the operator or its agent, principal or predecessor.

NR 135.22(1)(c)2.b. b. Suspensions or revocations of nonmetallic mining reclamation permits pursuant to this chapter.

NR 135.22(1)(c)2.c. c. Forfeitures of financial assurance.

NR 135.22(1)(d) (d) A denial under this subsection shall be in writing and shall contain documentation of reasons for denial.

NR 135.22(2) (2) A regulatory authority’s decision to deny an application to issue a reclamation permit may be reviewed under s. NR 135.30.

NR 135.22 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.23 NR 135.23 Automatic permitting and expedited permit review.

NR 135.23(1) (1) Automatic permitting of borrow sites for local transportation projects.

NR 135.23(1)(a) (a) The regulatory authority shall automatically issue an expedited permit under this subsection if the borrow site:

NR 135.23(1)(a)1. 1. Will be opened and reclaimed under contract with a municipality within a period not exceeding 36 months;

NR 135.23(1)(a)2. 2. Is a nonmetallic mine which is intended to provide stone, soil, sand or gravel for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or other transportation facility under contract with a municipality;

NR 135.23(1)(a)3. 3. Is regulated and will be reclaimed under contract with a municipality in accordance with the requirements of the department of transportation concerning the restoration of nonmetallic mining sites;

NR 135.23(1)(a)4. 4. Is not a commercial source;

NR 135.23(1)(a)5. 5. Will be constructed, operated and reclaimed in accordance with applicable zoning requirements, if any, and;

NR 135.23(1)(a)6. 6. Is not otherwise exempt from the requirements of this chapter under s. NR 135.02 (3).

NR 135.23(1)(b) (b) The applicant shall notify the regulatory authority of the terms and conditions of the contract with respect to reclamation of the proposed borrow site.

NR 135.23(1)(c) (c) The applicant shall provide evidence to the regulatory authority to show that the borrow site and its reclamation will comply with applicable zoning requirements, if any.

NR 135.23(1)(d) (d) The regulatory authority shall accept the contractual provisions incorporating requirements of the department of transportation in lieu of a reclamation plan under s. NR 135.19.

NR 135.23(1)(e) (e) The regulatory authority shall accept the contractual provisions in lieu of the financial assurance requirements in s. NR 135.40.

NR 135.23(1)(f) (f) The public notice and hearing provisions of s. NR 135.20 do not apply to nonmetallic mining sites that are issued automatic permits under this subsection.

NR 135.23 Note Note: Local public notice and hearing requirements, if any, regarding zoning decisions still apply.

NR 135.23(1)(g) (g) The annual fees under s. NR 135.39 shall apply, however, the regulatory authority may not charge a plan review fee or an expedited plan review fee. Notwithstanding s. NR 135.39 (4) (b) and (c), the total annual fee including the department share shall not exceed the amount in Table 3 of s. NR 135.39.

NR 135.23(1)(h) (h) The regulatory authority shall issue the automatic permit within 7 days of the receipt of a complete application.

NR 135.23(1)(i) (i) If the borrow site is used to concurrently supply materials for other than the local transportation project, the automatic permitting in this subsection still applies provided the site will reclaimed under a contractual obligation with the municipality in accordance with the department of transportation requirements.

NR 135.23(1)(j) (j) Notwithstanding s. NR 135.36, the operator of a borrow site under this subsection is required to submit only the information in an annual report necessary to identify the borrow site and to determine the applicable annual fee.

NR 135.23(2) (2) Expedited permitting.

NR 135.23(2)(a) (a) An applicant may request expedited permit review by proceeding in accordance with par. (b) or (c).

NR 135.23(2)(b) (b) An applicant may submit a request for expedited review with payment of the fee required under s. NR 135.39 (4). This request shall state the need for expedited review and the date by which the expedited review is requested.

NR 135.23(2)(c) (c) An applicant may submit a request for an expedited review if the applicant requires a reclamation permit to perform services under contract with a municipality. This request for expedited review shall state the need for expedited review and shall include a copy of the applicable sections of the contract and the date by which the expedited review is requested.

NR 135.23(2)(d) (d) Following receipt of a request under this subsection, the regulatory authority shall inform the applicant of the estimated date for decision on issuance of the permit. If the applicant then elects not to proceed with the expedited review, the fee paid pursuant to par. (b) shall be returned.

NR 135.23(2)(e) (e) The expedited review process may not waive the requirements of this subchapter for public notice and hearing. This section does not impose an obligation upon the regulatory authority to act upon a permit application under this section by a specific date.

NR 135.23 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.24 NR 135.24 Permit modification.

NR 135.24(1) (1) By the regulatory authority. If a regulatory authority finds that, because of changing conditions, the nonmetallic mining site no longer is in compliance with this chapter or the applicable reclamation ordinance, it shall issue an order modifying the permit in accordance with s. NR 135.43. This modifying order may require the operator to amend or submit new application information, reclamation plan, proof of financial assurance or other information needed to ensure compliance with this chapter or the applicable reclamation ordinance.

NR 135.24(2) (2) By the operator. If an operator desires to modify a nonmetallic mining reclamation permit or reclamation plan, the operator shall submit an application to modify the permit or plan to the regulatory authority. The application shall be subject to the requirements of this subchapter. The regulatory authority that issued the permit shall take action on the application to modify it in accordance with the standards and procedures contained in this subchapter.

NR 135.24(3) (3) Review. All actions by the regulatory authority pursuant to this section may be reviewed under s. NR 135.30.

NR 135.24 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.25 NR 135.25 Permit suspension and revocation.

NR 135.25(1) (1) Grounds. A regulatory authority may suspend or revoke a nonmetallic mining permit issued pursuant to this chapter if it finds that the operator has done any of the following:

NR 135.25(1)(a) (a) Failed to submit a satisfactory reclamation plan within the time frames specified in this subchapter.

NR 135.25(1)(b) (b) Failed to submit or maintain financial assurance as required by this chapter.

NR 135.25(1)(c) (c) Failed on a repetitive and significant basis to follow the approved reclamation plan.

NR 135.25(2) (2) Suspension. If the regulatory authority makes any of the findings in sub. (1), it may suspend a nonmetallic mining reclamation permit for up to 30 days. During the time of suspension, the operator may not conduct nonmetallic mining at the site, except for reclamation or measures to protect human health and the environment as ordered by the regulatory authority pursuant to s. NR 135.43.

NR 135.25(3) (3) Revocation. If a regulatory authority makes any of the findings in sub. (1), it may revoke a nonmetallic mining reclamation permit. Upon permit revocation, the operator shall forfeit the financial assurance it has provided pursuant to s. NR 135.40 to the regulatory authority. The regulatory authority may use forfeited financial assurance to reclaim the site to the extent needed to comply with this chapter and the applicable reclamation ordinance.

NR 135.25 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.26 NR 135.26 Approval of alternate requirements.

NR 135.26(1) (1) Criteria. A regulatory authority may approve an alternate requirement to the reclamation standards established in this chapter if the operator demonstrates and the regulatory authority finds that all of the following criteria are met:

NR 135.26(1)(a) (a) The nonmetallic mining site, the surrounding property or the mining plan or reclamation plan has a unique characteristic which requires an alternate requirement.

NR 135.26(1)(b) (b) Unnecessary hardship which is peculiar to the nonmetallic mining site or plan will result unless the alternate requirement is approved.

NR 135.26(1)(c) (c) Reclamation in accordance with the proposed alternate requirement will achieve the planned post-mining land use and long term site stability in a manner that will not cause environmental pollution or threaten public health, safety or welfare.

NR 135.26(2) (2) Procedures.

NR 135.26(2)(a) (a) An operator who requests an alternate requirement shall submit the request in writing as required in the applicable reclamation ordinance.

NR 135.26(2)(b) (b) If the regulatory authority is a county or municipality, the alternate requirement shall be approved or disapproved as provided in the applicable reclamation ordinance. Approval or disapproval shall be in writing and shall contain documentation of the reasons why the alternate requirement was or was not approved.

NR 135.26(2)(c) (c) If the department is the regulatory authority, the request shall be submitted to the department’s bureau of waste management, which shall have authority to approve these requests. Approval or disapproval shall be in writing and shall contain documentation of the reasons why the alternate requirement was or was not approved.

NR 135.26(2)(d) (d) A request for an alternate requirement may be incorporated as part of an application to issue or modify a nonmetallic mining reclamation permit.

NR 135.26(2)(e) (e) An applicable reclamation ordinance may provide opportunity for public informational hearing pursuant to this subchapter prior to the regulatory authority’s action on a request for an alternate requirement.

NR 135.26(3) (3) Department review.

NR 135.26(3)(a) (a) The regulatory authority shall submit written notice to the department at least 10 days prior to public hearing pursuant to sub. (2) (e) on the proposed alternate requirement.

NR 135.26(3)(b) (b) If the department determines that the proposed alternate requirement does not comply with the intent of this chapter or the applicable reclamation ordinance, the department may notify the regulatory authority of this determination either prior to or during the public hearing.

NR 135.26(3)(c) (c) The regulatory authority shall submit each written decision on an alternate requirement to the department within 10 days of issuance.

NR 135.26 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.27 NR 135.27 Permit duration. A nonmetallic mining reclamation permit issued pursuant to this chapter shall last through the mine’s operation and reclamation as described in the approved reclamation plan. If changes occur in the area to be mined, the nature of planned reclamation, or other aspects of mining require that the approved reclamation plan be amended, the operator shall apply for a permit modification pursuant to s. NR 135.24 (2). If the mine operator is not the landowner, the permit duration cannot exceed the duration of the lease unless the lease is renewed or the permit is transferred to a subsequent lessee or the landowner pursuant to s. NR 135.28.

NR 135.27 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.28 NR 135.28 Permit transfer.

NR 135.28(1) (1) A nonmetallic mining permit may be transferred to a new operator upon submittal to the regulatory authority of proof of financial assurance and a certification in writing by the new permit holder that all conditions of the permit will be complied with.

NR 135.28(2) (2) The transfer is not valid until financial assurance has been submitted by the new operator and accepted by the regulatory authority and the regulatory authority makes a written finding that all conditions of the permit will be complied with. The previous operator shall maintain financial assurance until the new operator has received approval and provided the financial assurance under this section.

NR 135.28 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.29 NR 135.29 Change of regulatory authority. If there is a change of regulatory authority for a nonmetallic mining site, the site’s nonmetallic mining permit shall remain in effect and be enforceable until the permit is modified by the new regulatory authority.

NR 135.29 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.30 NR 135.30 Review of permit decision.

NR 135.30(1) (1) County or municipal permit decision. Notwithstanding ss. 68.001, 68.03 (8) and (9), 68.06 and 68.10 (1) (b), Stats., any person who meets the requirements of s. 227.42 (1), Stats., may obtain a contested case hearing under s. 68.11, Stats., on a county or municipal regulatory authority’s decision to issue, deny or modify a nonmetallic mining reclamation permit.

NR 135.30(2) (2) Department permit decision. Any person who meets the requirements of s. 227.42 (1), Stats., may seek review of a department decision to issue, deny or modify a nonmetallic mining reclamation permit, where the department administers a nonmetallic mining reclamation program pursuant to s. NR 135.17 (3). This hearing shall be held as a contested case hearing pursuant to ss. 227.42 and 227.43, Stats. The hearing shall be conducted within the county where the nonmetallic mining site is located. Decisions from these hearings are reviewable in court pursuant to ss. 227.52 to 227.59, Stats.