Chapter NR 135

NR 135.40(13) (13) Net worth test.

NR 135.40(13)(a) (a) Only an operator that meets the definition of “company” in s. 289.41 (1) (b), Stats., may use the net worth method of providing financial assurance.

NR 135.40(13)(b) (b) The operator shall submit information to the regulatory authority in satisfaction of the net worth test requirements of s. 289.41 (4), Stats. The criteria in s. 289.41 (6) (b), (d), (e), (f), (g), (h) and (i), Stats., shall apply.

NR 135.40(13)(c) (c) An operator using the net worth test to provide financial assurance for more than one mine shall use the total cost of compliance for all mines in determining the net worth to reclamation cost ratio in accordance with s. 289.41 (6), Stats.

NR 135.40(13)(d) (d) The department determinations under the net worth test shall be done in accordance with s. 289.41 (5), Stats.

NR 135.40(13)(e) (e) In addition, the operator shall submit a legally binding commitment to faithfully perform all compliance and reclamation work at the mine site that is required under an applicable nonmetallic mining reclamation ordinance.

NR 135.40 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.41 NR 135.41 Interim reclamation waiver. If the regulatory authority determines that areas within a mining site have been successfully reclaimed on an interim basis in accordance with the reclamation plan, the regulatory authority:

NR 135.41(1) (1) Shall waive annual acreage fees for those areas, and

NR 135.41(2) (2) May reduce or waive financial assurance requirements for those areas.

NR 135.41 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.42 NR 135.42 Regulatory authority right of inspection.

NR 135.42(1) (1) No person may refuse entry or access onto a nonmetallic mining site of a duly authorized officer, employee or agent of the regulatory authority or the department who presents appropriate credentials to inspect the site for compliance with the nonmetallic mining reclamation permit, the applicable reclamation ordinance, this chapter or ch. 295, subch. I, Stats. Any person who enters the site under this right of inspection shall obtain training and provide their own safety equipment needed to comply with any federal, state or local laws or regulations controlling persons on the nonmetallic mining site.

NR 135.42(2) (2) If requested, the department shall furnish to the operator a written report of its inspection under this section, setting forth all relevant observations, information and data which relate to the site’s compliance status under this chapter and ch. 295, subch. I, Stats.

NR 135.42 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.43 NR 135.43 Enforcement, orders, penalties.

NR 135.43(1) (1) Local orders and enforcement. The regulatory authority that administers a nonmetallic mining reclamation ordinance, or an agent designated by that governing body, may do any of the following:

NR 135.43(1)(a) (a) Issue an order, requiring an operator to either comply with provisions of or cease violations of ch. 295, subch. I, Stats., this chapter, an applicable reclamation ordinance, a nonmetallic mining reclamation permit, permit conditions or an approved mining reclamation plan.

NR 135.43(1)(b) (b) Issue a special order suspending or revoking a nonmetallic mining reclamation permit under s. NR 135.25, or directing an operator to immediately cease an activity regulated under this chapter or under an applicable reclamation ordinance until the necessary plan approval is obtained.

NR 135.43(1)(c) (c) Submit an order to abate violations of the nonmetallic mining reclamation ordinance to a district attorney, corporation counsel, municipal attorney or the attorney general for enforcement. The district attorney, corporation counsel, municipal attorney or the attorney general may enforce those orders.

NR 135.43(2) (2) Right of review. A person holding a reclamation permit who is subject to an order pursuant to sub. (1) shall have the right to review the order in a contested case hearing under s. 68.11, Stats., notwithstanding the provisions of ss. 68.001, 68.03 (8) and (9), 68.06 and 68.10 (1) (b), Stats.

NR 135.43(3) (3) Department orders.

NR 135.43(3)(a) (a) If the department is the regulatory authority, it may issue an order as provided in sub. (1).

NR 135.43(3)(b) (b) In addition to orders issued under sub. (1), the department may issue a special order directing the immediate cessation of an activity regulated under this section until the nonmetallic mining site complies with the nonmetallic mining reclamation standards established under subch. II.

NR 135.43(3)(c) (c) A person holding a reclamation permit who is subject to an order issued under this subsection shall have the right to review the order in a contested case under s. 227.42, Stats.

NR 135.43(4) (4) Penalties.

NR 135.43(4)(a) (a) Any person who violates this chapter or an order issued under sub. (1) or (3) may be required by the regulatory authority to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense. While an order issued under this section is suspended, stayed or enjoined, this penalty does not accrue. The cost of enforcement incurred by the regulatory authority shall be considered in establishing these forfeitures.

NR 135.43(4)(b) (b) Except for the violations referred to in par. (a), any person who violates ch. 295, subch. I, Stats., this chapter, any reclamation plan approved pursuant to this chapter or an order issued under sub. (1) or (3) shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of violation is a separate offense. While an order issued under this section is suspended, stayed or enjoined, this penalty does not accrue.

NR 135.43 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

subch. V of ch. NR 135 Subchapter V — Department Oversight and Assistance

NR 135.44 NR 135.44 Department review of pre-existing ordinances.

NR 135.44(1) (1) Any county or municipality that intends to enforce a nonmetallic mining reclamation ordinance that was in effect before June 1, 1993 shall submit a copy of the ordinance to the department.

NR 135.44(2) (2) If the department finds that any part of the submitted reclamation ordinance is not at least as restrictive as the requirements of this chapter, or is not adequate to effect the purposes of ch. 295, subch. I, Stats., and meet the requirements of this chapter, it shall communicate this finding and the basis for it to the county or municipality in writing. The county or municipality may amend its reclamation ordinance and submit the amended ordinance to the department for a determination under this subsection of whether the amended ordinance is at least as restrictive as the requirements of this chapter. The county or municipality may continue administering its reclamation ordinance while working to amend the ordinance to comply with this chapter. Where amendment is necessary pursuant to this subsection, the county or municipality shall submit a copy of the amended reclamation ordinance as enacted to the department.

NR 135.44 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.45 NR 135.45 Department review of new ordinances.

NR 135.45(1) (1) A county or municipality which proposes to adopt a nonmetallic mining reclamation ordinance in accordance with this chapter shall submit the proposed ordinance to the department for review and a determination of compliance at least 45 days prior to its adoption. The county or municipality may submit a description of its proposed nonmetallic mining program to the department for technical advice.

NR 135.45(2) (2) The department shall determine whether the ordinance will comply with this chapter.

NR 135.45(3) (3) Within 30 days of receipt of a proposed ordinance under this section, the department shall advise the county or municipality of its determination under sub. (2).

NR 135.45(4) (4) Before the governing body of a county or municipality adopts a proposed ordinance, it shall obtain a determination of compliance from the department under this section.

NR 135.45(5) (5) Upon enactment, the county or municipality shall submit a final copy of the ordinance to the department.

NR 135.45 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.46 NR 135.46 Amendment of ordinances. A county or municipality may not amend its nonmetallic mining reclamation ordinance in a manner which makes it more or less restrictive than this chapter. The county or municipality shall submit a copy of an amended ordinance to the department.

NR 135.46 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.47 NR 135.47 Department audits.

NR 135.47(1) (1) The department shall periodically review the nonmetallic mining program of each regulatory authority to determine if the program is being conducted in compliance with this chapter, and is effective and consistent in ensuring operator compliance with the statewide uniform reclamation standards contained in this chapter.

NR 135.47(2) (2) The program review shall include a performance audit and on-site inspections of mining operations within the jurisdiction.

NR 135.47(3) (3) During the performance audit, the department may evaluate the regulatory authority with respect to all of the following:

NR 135.47(3)(a) (a) Compliance with the county or municipal regulatory authority’s nonmetallic mining reclamation ordinance and the standards in this chapter.

NR 135.47(3)(b) (b) The procedures employed by the regulatory authority regarding reclamation plan review, and the issuance and modification of permits.

NR 135.47(3)(c) (c) The methods for review of annual reports received from operators.

NR 135.47(3)(d) (d) The method and effectiveness of fee collection.

NR 135.47(3)(e) (e) Procedures to accurately forward the department’s portion of collected fees in a timely fashion.

NR 135.47(3)(f) (f) Methods for conducting on-site compliance inspections and attendant reports, records and enforcement actions.

NR 135.47(3)(g) (g) Responses to citizen complaints.

NR 135.47(3)(h) (h) The method of and accuracy in determining the amount of the financial assurance obtained from the operator to guarantee reclamation performance.

NR 135.47(3)(i) (i) The maintenance and availability of records.

NR 135.47(3)(j) (j) The number and type of approvals for alternative requirements issued pursuant to this chapter.

NR 135.47(3)(k) (k) The method of determining the success of reclamation in meeting the criteria contained in the reclamation plan and subsequently releasing the financial assurance pursuant to s. NR 135.40 (7).

NR 135.47(3)(L) (L) Any changes in local regulations, ordinances, funding and staffing mechanisms or any other factor which might affect the ability of the regulatory authority to implement its nonmetallic mining reclamation program.

NR 135.47(3)(m) (m) The amount of fees collected in comparison to the amount of money actually expended for nonmetallic mining reclamation program administration.

NR 135.47(3)(n) (n) Any other performance criterion that the department may deem necessary to ascertain compliance with this chapter.

NR 135.47(4) (4) The department shall issue a written determination to the audited regulatory authority not less than every 10 years within 90 days of its audit, of whether or not the reclamation program administered by the regulatory authority is in compliance with the provisions of this chapter.

NR 135.47(5) (5) If the department finds and states, within 90 days of its audit, in its written determination that the regulatory authority is not in compliance with this chapter, the department shall give the regulatory authority adequate opportunity to correct deficiencies and respond to the department’s comments.

NR 135.47(6) (6) Following a preliminary determination that a nonmetallic mining reclamation program administered by a county or municipal government regulatory authority is not achieving compliance with this chapter, the department shall consult with the nonmetallic mining advisory committee.

NR 135.47 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (3) (a) and (6) Register November 2006 No. 611, eff. 12-1-06.

NR 135.48 NR 135.48 Noncompliance hearing. If, as a result of adoption of an ordinance or an audit pursuant to s. NR 135.47, the department determines that a regulatory authority is not in compliance with this chapter and has not corrected deficiencies after written notice, the department may schedule a hearing regarding whether the regulatory authority shall continue administering its nonmetallic mining reclamation program. The department shall provide 30 days’ notice to the regulatory authority prior to conducting the hearing. The hearing shall be held within the jurisdiction of the regulatory authority. The department shall issue a written decision of its conclusion as soon as practicable after the hearing.

NR 135.48 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.49 NR 135.49 Municipal noncompliance, consequences.

NR 135.49(1) (1) If, as a result of a noncompliance hearing held pursuant to s. NR 135.48, the department issues a written decision finding a municipality is out of compliance with this chapter, the municipality’s authority to administer its nonmetallic mining reclamation program shall be revoked. In this case, the applicable reclamation ordinance of the county in which the municipality is located shall apply in the municipality.

NR 135.49(2) (2) A municipality whose authority has been revoked may apply to the department to resume administration of its applicable reclamation ordinance and nonmetallic mining reclamation program after 3 years have elapsed since revocation. The department, after hearing, may approve the municipality’s request to resume administering its nonmetallic mining reclamation program if it finds that the municipality demonstrates the capacity to comply with this chapter.

NR 135.49 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.50 NR 135.50 County noncompliance, consequences.

NR 135.50(1) (1) If as a result of a noncompliance hearing held pursuant to s. NR 135.48, the department issues a written decision finding a county is out of compliance with this chapter, the department shall, as soon as practicable after the hearing, assume responsibility for the administration of the nonmetallic mining reclamation ordinance and program in that county, including collection of fees and review and approval of reclamation plans and permit applications.

NR 135.50(2) (2) Municipalities that are approved to administer an applicable reclamation ordinance and program may continue to do so after the department begins to administer a nonmetallic mining program pursuant to this section. However, no municipality may enact for the first time an applicable reclamation ordinance during the time that the department administers the program in the county in which the municipality is located.

NR 135.50(3) (3) The county found to be in noncompliance may apply to the department, at any time to resume administration of the nonmetallic mining reclamation program. The department, after hearing, may approve the county’s request to resume administering its nonmetallic mining reclamation program if it finds that the county demonstrates the capacity to comply with this chapter.

NR 135.50 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.51 NR 135.51 Nonmetallic mining advisory committee.

NR 135.51(1) (1) The department shall appoint a nonmetallic mining advisory committee to advise it on the administration of this chapter and ch. 295, subch. I, Stats.

NR 135.51(2) (2) The nonmetallic mining advisory committee shall consist of 9 members appointed for terms not exceeding 3 years. Members shall represent economic, scientific and cultural viewpoints and shall include a representative from businesses that extract nonmetallic minerals, a representative from a business that uses nonmetallic minerals for road building and other purposes and a representative of an organization of persons who administer county zoning ordinances. The nonmetallic mining advisory committee shall meet at least annually.

NR 135.51(3) (3) The nonmetallic mining advisory committee shall be consulted before the department may hold a hearing on revoking a nonmetallic mining reclamation program pursuant to s. NR 135.48.

NR 135.51 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.52 NR 135.52 Department assistance.

NR 135.52(1) (1) In order to assist regulatory authorities in the development, implementation and administration of nonmetallic mining reclamation programs, the department may provide training workshops, written materials and technical assistance addressing how to establish and implement a nonmetallic mining reclamation program. The department may make computer software available to regulatory authorities to assist in record keeping and in the generation of standard forms.

NR 135.52 Note Note: Specific mine safety training for reclamation inspectors may be made available through the department of safety and professional services or the federal mine safety and health administration.

NR 135.52(2) (2) Any party may request the department’s technical or administrative opinion to interpret, clarify or to otherwise facilitate progress in permitting matters or in the resolution of any other matter between a regulatory authority and a nonmetallic mine operator.

NR 135.52(3) (3) 

NR 135.52(3)(a) (a) Any party may request the department’s written technical or administrative opinion in a matter involving a dispute between a regulatory authority and a nonmetallic mine operator.

NR 135.52(3)(b) (b) The party should provide a written request detailing the nature and facts of the dispute, a history of previous attempts to resolve the matter, a precise description of the issue or issues where dispute exists and upon which the department is requested to render its technical or administrative opinion.

NR 135.52(3)(c) (c) The department shall respond to requests for technical or administrative opinions in writing within 10 days of receipt of the request indicating whether or not it will render a formal opinion on the matter. If the department acts to provide an opinion, it shall render its written opinion within 45 days of receipt of the request for a technical or administrative opinion. This timeframe may be extended where circumstances such as a lack of sufficient information prevent the department from rendering a valid technical or administrative opinion. In reaching its opinion, the department shall provide an opportunity for all parties to the dispute to provide relevant information and may consider the following: the need for a timely and expeditious resolution, environmental or health risk, economic hardship, whether the opinion is important to statewide program consistency considering significant departure from consistent administration of this chapter’s programs and to the uniform application of reclamation standards, or whether its opinion is precedent setting, or any other factors the department deems relevant.