Chapter 295

295.53(5) (5) Relationship to other laws. This section and s. 295.57 govern the department’s obligations under ss. 1.11 and 1.12 with respect to a mining project. Sections 23.11 (5) and 23.40 and ss. NR 2.085, 2.09, and 2.157, Wis. Adm. Code, do not apply with respect to a mining project. The rest of ch. NR 2, Wis. Adm. Code, only applies with respect to a mining project to the extent that it does not conflict with this section and s. 295.57. Sections NR 150.30 (1) (g) and 150.35, Wis. Adm. Code, do not apply with respect to a mining project. The rest of ch. NR 150, Wis. Adm. Code, only applies with respect to a mining project to the extent that it does not conflict with this section and s. 295.57.

295.53 History History: 2013 a. 1; 2013 a. 168 s. 21; 2015 a. 195.

295.56 295.56 Exemptions.

295.56(1) (1) The department may grant an exemption, as provided in this section, from any of the requirements of this subchapter applicable to any of the following:

295.56(1)(a) (a) A mining permit application, including the mining plan, reclamation plan, and mining waste site feasibility study and plan of operation.

295.56(1)(b) (b) A mining permit.

295.56(1)(c) (c) Any other approval.

295.56(2) (2) 

295.56(2)(a) (a) An applicant shall submit a request for an exemption in writing and shall describe the grounds for the exemption and provide documentation identifying the conditions requiring the exemption, the reasons for the exemption, and the reasonableness of the exemption.

295.56(2)(b) (b) An applicant may obtain an exemption only if the applicant submits the request no later than the 180th day after the application for the mining permit is administratively complete under s. 295.57 (2), unless the condition that is the basis for the requested exemption is not known to the applicant before that day, in which case the deadline is extended to the 20th day before the deadline under s. 295.57 (7) (a).

295.56(2)(c) (c) The department shall issue a decision on a request for an exemption no later than the 15th day after the day on which it received the request under par. (a). Subject to par. (b) and except as provided in par. (d), the department shall grant the exemption if it is consistent with the purposes of this subchapter and will not violate any applicable environmental law outside of this subchapter and if both of the following apply:

295.56(2)(c)1. 1. The exemption will not result in significant adverse environmental impacts on the mining site or, if the exemption will result in significant adverse environmental impacts on the mining site, the applicant will offset those impacts through a mitigation program, as provided in s. 295.60 (8), through the measures provided in s. 295.605, or through the conservation measures provided in s. 295.61.

295.56(2)(c)2. 2. The exemption will not result in significant adverse environmental impacts off of the mining site.

295.56(2)(d) (d)

295.56(2)(d)1. 1. The department shall deny a request for an exemption if granting the exemption would violate federal law.

295.56(2)(d)2. 2. 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.

295.56 History History: 2013 a. 1.

295.57 295.57 Application procedure.

295.57(1) (1) Submission.

295.57(1)(a) (a) An applicant shall submit the application for a mining permit as provided in s. 295.47.

295.57(1)(b) (b) The department shall protect as confidential any information, other than effluent data, contained in an application for a mining permit, upon a showing that the information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), and any information relating to production or sales figures or to processes or production unique to the applicant or that would tend to adversely affect the competitive position of the applicant if made public.

295.57(2) (2) Determination of administrative completeness.

295.57(2)(a) (a) The department shall review an application for a mining permit and, within 30 days after the application is submitted, shall determine either that the application is complete or that additional information is needed. If the department determines that the application is complete, the department shall notify the applicant in writing of that fact within the 30-day period and the date on which the department sends the notice is the day on which the application is administratively complete.

295.57(2)(b) (b) If the department determines under par. (a) that an application is incomplete, the department shall notify the applicant in writing and may make one request for additional information during the 30-day period specified in par. (a). Within 10 days after receiving additional requested information from the applicant, the department shall notify the applicant in writing as to whether it has received all of the requested information. The day on which the department sends the 2nd notice under this paragraph is the day on which the application is administratively complete.

295.57(2)(c) (c) If the department fails to meet the 30-day time limit under par. (a) or the 10-day time limit under par. (b), the application is administratively complete on the last day of the 30-day time limit or 10-day time limit.

295.57(2)(d) (d) The department may request additional information needed to process a mining application from the applicant after the application is administratively complete, but the department may not delay the determination of administrative completeness based on a request for additional information.

295.57(3) (3) Notice of additional approvals. Within 30 days after the mining permit is administratively complete under sub. (2), the department shall notify the applicant in writing of any approval required for the construction or operation of the mining site that was not previously identified by the department.

295.57(3m) (3m) Receipt of certain approvals. If a storm water discharge permit under s. 283.33 (1) (a) or a water quality certification under rules promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a) is needed for a mining operation, the person applying for the mining permit may apply for and be issued the permit or certification.

295.57(4) (4) Public information and notice.

295.57(4)(a) (a) The department shall make available for review in the city, village, or town in which the proposed mining site is located, information concerning the proposed mining, including all of the following:

295.57(4)(a)1. 1. The application for the mining permit, including the mining plan, reclamation plan, and mining waste site feasibility study and plan of operation.

295.57(4)(a)2. 2. Any of the following relating to an approval other than the mining permit:

295.57(4)(a)2.a. a. The application.

295.57(4)(a)2.b. b. A draft approval.

295.57(4)(a)2.c. c. Information or summaries relating to the approval.

295.57(4)(a)3. 3. The environmental impact statement, environmental impact report, and any additional supporting information used in the department’s evaluation of the proposed mining.

295.57(4)(a)4. 4. The department’s analyses and preliminary determinations relating to any approval.

295.57(4)(b) (b) The department shall distribute a notice that describes the availability of the information under par. (a); the opportunity for written public comment, including an invitation for the submission of written comments by any person within 45 days after the date of the publication of the notice; and the date, time, and location of the public informational hearing and that includes any additional information that a law concerning any approval requires to be provided. The department shall publish the notice as a class 1 notice under ch. 985 and shall publish notice on the department’s Internet site. The date on which the department first publishes the notice on its Internet site shall be considered the date of the publication of the notice required to be published under this paragraph. The department shall also send the notice to all of the following:

295.57(4)(b)1. 1. The clerk of any city, village, town, or county with zoning jurisdiction over the proposed mining site.

295.57(4)(b)2. 2. The clerk of any city, village, town, or county within whose boundaries any portion of the proposed mining site is located.

295.57(4)(b)3. 3. The clerk of any city, village, or town, contiguous to any city, village, or town within whose boundaries any portion of the proposed mining site is located.

295.57(4)(b)4. 4. The main public library of each city, village, town, or county with zoning jurisdiction over the proposed mining site or within whose boundaries any portion of the proposed mining site is located.

295.57(4)(b)5. 5. Any regional planning commission for the area within which the proposed mining site lies.

295.57(4)(b)6. 6. Any state agency that the department knows is required to grant a permit or other authorization necessary for the construction or operation of the proposed mining project.

295.57(4)(b)7. 7. The federal environmental protection agency, U.S. army corps of engineers, and states potentially affected by the proposed discharge if a water discharge permit under ch. 283 or a wetland permit that constitutes a water quality certification as required by 33 USC 1341 (a) is to be considered at the public informational hearing.

295.57(4)(b)8. 8. The federal environmental protection agency and appropriate agencies in other states that may be affected if an air pollution control permit under ch. 285 is to be considered at the public informational hearing.

295.57(4)(b)9. 9. If a water withdrawal permit under s. 295.61 for a withdrawal of surface water is to be considered at the public informational hearing, the persons specified in s. 30.18 (4) (a).

295.57(4)(b)10. 10. If an individual permit under s. 30.12 for a structure through which water transferred from the Great Lakes basin would be returned to the source watershed through a stream tributary to one of the Great Lakes is to be considered at the public informational hearing, the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream.

295.57(4)(b)11. 11. Any person upon request. The department’s notice under this subdivision may be given through an electronic notification system established by the department.

295.57(4)(b)12. 12. The applicant.

295.57(4)(b)13. 13. Any other person to whom the department is required to give notice of any proposed determination, application, or hearing concerning an approval under the laws relating to the issuance of any approval or under s. 1.11.

295.57(4)(c) (c) The department shall coordinate the public comment period for the mining permit with the public comment period for any other approval for the mining operation, except that if an application for an approval is filed too late to allow public comment within the public comment period for the mining permit, the department shall issue separate notice, as described in par. (b), for the approval after the application is filed.

295.57(5) (5) Informational hearing. The department shall hold a public informational hearing before it approves or denies an application for a mining permit and not less than 30 days after the date of the publication of the notice under sub. (4) (b). The department shall hold the public informational hearing in the county where the majority of the proposed mining site is located. The department shall hold a single public informational hearing covering the mining permit, all other approvals, and the environmental impact statement, except that if an application for an approval is filed too late to allow the application to be considered at the public informational hearing for the mining permit, the department shall hold a separate public informational hearing on the approval in the county where the majority of the proposed mining site is located not less than 30 days after the date of the publication of the notice under sub. (4) (b) for the approval. The department shall publish the notice on its Internet site not more than 10 days after the application is considered to be complete under sub. (8) (b) 1. The public informational hearing under this subsection is not a contested case hearing under ch. 227. At the hearing, the department shall take testimony on all of the following with regard to any proposed withdrawal of groundwater or surface water:

295.57(5)(a) (a) The public rights in any body of water and the related environment that may be injured by the proposed withdrawal of groundwater or surface water.

295.57(5)(b) (b) The public benefits provided by increased employment, economic activity, and tax revenues from the proposed mining operation.

295.57(5)(c) (c) The direct and indirect social and economic costs and benefits of the proposed mining operation.

295.57(5)(d) (d) Whether the proposed withdrawal of groundwater or surface water will consume nonsurplus water.

295.57(5)(e) (e) The rights of competing users of the groundwater or surface water.

295.57(5)(f) (f) Any other water withdrawal issues identified by the department as relevant to the decision of whether to issue or deny a permit.

295.57(6) (6) Summary. After considering the comments received under subs. (4) and (5) and before acting on the application for the mining permit, the department shall prepare a summary of the comments and the department’s response to the comments.

295.57(7) (7) Deadline for acting on mining permit application.

295.57(7)(a) (a) No later than the deadline specified by the applicant under s. 295.47 (1) (am) or, if the applicant does not specify a deadline under s. 295.47 (1) (am), no more than 420 days after the day on which the application for a mining permit is administratively complete under sub. (2), the department shall approve the application, and issue a mining permit, or deny the application, in accordance with s. 295.58, unless the department and the applicant agree to extend the deadline. The department and the applicant may agree to not more than one extension and that extension may not exceed 60 days. The department and the applicant may enter into an extension only if one of the following applies:

295.57(7)(a)1. 1. An extension is necessary to enable the department and the U.S. army corps of engineers to jointly prepare their environmental impact statements.

295.57(7)(a)2. 2. New information or a change to the mining proposal necessitates additional time to review the application.

295.57(7)(b) (b) If the department does not comply with the deadline under par. (a), including any extension agreed to by the applicant, the department shall refund the fees under s. 295.73 (3) (a), (d), and (e) that were paid by the applicant.

295.57(7)(c) (c) If the department does not comply with the deadline under par. (a), including any extension agreed to by the applicant, the applicant may bring an action for mandamus in the circuit court for the county in which the majority of the proposed mining site is located to compel the department to approve or deny the application. Notwithstanding s. 814.04 (1), in an action under this paragraph the court shall award the applicant its costs, including reasonable attorney fees, if it determines that the department did not comply with the deadline under par. (a).

295.57(8) (8) Deadline for acting on other approvals.

295.57(8)(a) (a) Except as provided in par. (c), if an applicant files an application for an approval other than a mining permit no later than 60 days after the day on which the application for the mining permit is administratively complete under sub. (2) or more than 60 days after that day but in time to allow the application to be considered at the public informational hearing for the mining permit under sub. (5), the department shall approve the application, and issue the approval, or deny the application no later than the deadline under sub. (7) (a), including any extension agreed to by the applicant.

295.57(8)(b) (b)

295.57(8)(b)1. 1. If an applicant files an application for an approval other than a mining permit too late to allow the application to be considered at the public informational hearing for the mining permit under sub. (5) but before the department issues the decision to grant or deny the application for the mining permit, the application for the approval is considered to be complete on the 30th day after the department receives the application, unless, before that day, the department provides the applicant with written notification that the application is not complete, stating the reason for the determination and describing the specific information necessary to make the application complete. If the department provides such a notice, the applicant shall supplement the application by providing the specified information. The application is considered to be complete when the applicant provides the information.

295.57(8)(b)2. 2. Except as provided in subd. 3., the department shall approve the application for an approval described in subd. 1., and issue the approval, or deny the application after the separate public informational hearing for the approval required under sub. (5) and no later than 75 days after the application for the approval is considered to be complete under subd. 1.

295.57(8)(b)3. 3. Except as provided in par. (c), the department shall approve or deny the application for an approval described in subd. 1. that is an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval after the separate public informational hearing required for the approval under sub. (5) and no later than 180 days after the application is considered to be complete under subd. 1.

295.57(8)(c) (c) The deadlines in pars. (a) and (b) do not apply to the application for an air pollution control permit under s. 285.62 for which the department receives an objection from the federal environmental protection agency under s. 285.62 (6).

295.57(8)(d) (d) The department shall incorporate an approval other than a mining permit into a single document with the mining permit, unless the application for the approval was filed more than 60 days after the day on which the application for the mining permit is administratively complete under sub. (2).

295.57(8m) (8m) Submission of technical review to Great Lakes regional body. If an applicant files an application under s. 281.346 for an approval for a withdrawal of surface water or groundwater that is subject to regional review or council approval, the department shall provide its technical review, as defined in s. 281.346 (1) (u), to the regional body, as defined in s. 281.346 (1) (q), no later than 90 days after the applicant files the application for the approval.

295.57(9) (9) Applicable procedure.

295.57(9)(a) (a) The provisions of this section and ss. 295.58 (5) and (6) and 295.77 concerning public notice, comment, and hearing; issuance of department decisions; effective date of department decisions; and review of department decisions; and the duration of approvals apply to any approval for which the application is filed before the department issues the decision to grant or deny the application for the mining permit, notwithstanding any provisions related to those matters in s. 44.40 or 169.25, subch. I or VI of ch. 77, ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291, or rules promulgated under those provisions, except as provided in s. 281.343 (7r) and except that if a withdrawal of surface water or groundwater is subject to regional review or council approval under s. 281.346, the applicable provisions related to regional review or council approval apply.

295.57(9)(b) (b) The provisions of ss. 295.58 (5) and (6) and 295.77 concerning review of department decisions and the duration of department decisions apply to any approval for which the application is filed after the department issues the mining permit, notwithstanding any provisions related to those matters in s. 44.40 or 169.25, subch. I or VI of ch. 77, ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291, or rules promulgated under those provisions, except as provided in s. 281.343 (7r).

295.57 History History: 2013 a. 1; 2015 a. 196.

295.58 295.58 Mining; department grant or denial of permit.

295.58(1) (1) Criteria for approval.

295.58(1)(a) (a) Except as provided in sub. (2) and except with respect to property specified in s. 41.41 (11), the department shall issue a mining permit if it finds all of the following:

295.58(1)(a)1. 1. That the mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site consistent with this subchapter.

295.58(1)(a)2. 2. That the waste site feasibility study and plan of operation complies with s. 295.51.

295.58(1)(a)3. 3. That the applicant has committed to conducting the proposed mining in compliance with the mining permit and any other approvals issued for the mining.

295.58(1)(a)3m. 3m. That the proposed mining is likely to meet or exceed the requirements of any municipal floodplain zoning ordinance applicable to the proposed mining under s. 295.607 (3) to the extent that the ordinance has not been made inapplicable to the proposed mining by a local agreement under s. 295.443 (1m).

295.58(1)(a)4. 4. That the proposed mining is reasonably certain not to result in substantial adverse impacts to public health, safety, or welfare.

295.58(1)(a)5. 5. That the proposed mining will result in a net positive economic impact in the area reasonably expected to be most impacted by the mining.

295.58(1)(a)6. 6. That the applicant has applied for all necessary zoning approvals applicable to the proposed mining.