Chapter 295

295.645(6)(a)5. 5. If the substance involved is naturally occurring, unless the substance involved is carcinogenic, teratogenic, or mutagenic in humans, the department considers the existence of the background concentration of the substance in evaluating response options to the noncompliance with the enforcement standard or alternative concentration limit for that substance and determines that the proposed prohibition will result in the protection of or substantial improvement in groundwater quality notwithstanding the background concentrations of the substance.

295.645(6)(b) (b) The department may only require a remedial action to be taken if the remedial action is reasonably related in time and scope to the substance, activity, or practice that caused the enforcement standard or alternative concentration limit to an enforcement standard to be attained or exceeded and the quality of groundwater to be statistically significantly different from either baseline water quality or background water quality at the point of standards application.

295.645(6)(c) (c) If nitrates or any substance of welfare concern attains or exceeds an enforcement standard and if the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline or background water quality, then the department shall evaluate whether the enforcement standard was attained or exceeded in whole or in part due to high background water quality concentrations of the substance and whether the additional concentrations represent a public welfare concern before it designates the appropriate response and, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and par. (a) 1. to 4. apply.

295.645(6)(d) (d) If compliance with an enforcement standard is achieved at a point of standards application, then sub. (5) applies.

295.645(6m) (6m) Mandatory intervention boundary for mining waste site and mine.

295.645(6m)(a) (a) Except as provided under par. (am), the horizontal distance to the mandatory intervention boundary for a mining waste site is 300 feet from the outer waste boundary or the outer edge of the excavation, unless the boundary of the design management zone is within 600 feet of the outer waste boundary or the outer edge of the excavation, in which case the mandatory intervention boundary is one-half the distance from the outer waste boundary or the outer edge of the excavation to the boundary of the design management zone.

295.645(6m)(am) (am) The department may reduce the mandatory intervention boundary under par. (a) by a horizontal distance of up to 150 feet if the department determines that the reduction is necessary to adequately identify and respond to potential groundwater quality issues.

295.645(6m)(b) (b) An operator shall monitor groundwater quality at locations approved by the department along the mandatory intervention boundary, except for any portion of the mandatory intervention boundary that is within another mandatory intervention boundary, and within the mandatory intervention boundary. When approving locations for monitoring, the department shall ensure that duplicative monitoring is not required within overlapping mandatory intervention boundaries.

295.645(6m)(c) (c)

295.645(6m)(c)1. 1. Notwithstanding sub. (5), if a preventive action limit or an enforcement standard has been exceeded beyond the mandatory intervention boundary, the department shall require a response in accordance with s. NR 140.24, Wis. Adm. Code, except that s. NR 140.24 (5), Wis. Adm. Code, does not apply.

295.645(6m)(c)2. 2. If sampling results indicate that an enforcement standard or a preventive action limit has been exceeded within, but not beyond, the mandatory intervention boundary and a comparison of sampling results to the results of modeling indicates that the sampling results are consistent with the design and expected performance of the mining waste site, the operator may recommend a no response action, and the department may approve a no response action if that is authorized under s. NR 140.24 (5), Wis. Adm. Code.

295.645(7) (7) Environmental analysis not required. An action under sub. (5) or (6) with respect to a specific site does not constitute a major state action under s. 1.11 (2).

295.645(8) (8) Exemptions to groundwater quality standards. When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may grant an exemption from a groundwater quality standard and establish an alternative concentration limit to a groundwater quality standard.

295.645(9) (9) Applicability of other law. Chapter NR 140, Wis. Adm. Code, applies to mining operations and mining sites, including mining waste sites, only to the extent that it does not conflict with this section.

295.645 History History: 2013 a. 1.

295.65 295.65 Successors.

295.65(1) (1) When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease, or otherwise, the department shall release the first operator from the duties imposed upon the first operator by this subchapter as to the mining operation and transfer the mining permit and any approvals under ss. 295.60, 295.605, and 295.61 to the successor operator if all of the following apply:

295.65(1)(a) (a) The successor operator agrees to comply with the requirements of this subchapter.

295.65(1)(b) (b) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any mining laws within the previous 10 years, posts any bond or other security required under s. 295.59, and assumes all responsibilities of all applicable approvals granted to the predecessor operator.

295.65(2) (2) The department is not required to prepare an environmental impact statement or an environmental assessment for the purposes of this section.

295.65 History History: 2013 a. 1.

295.66 295.66 Cessation of mining or reclamation. If there is a cessation of mining or reclamation for 30 days or more that is not set forth in either the mining plan or the reclamation plan, the operator shall notify the department of the cessation within 48 hours of the cessation of mining and shall begin stabilization of the mining site. The department may require the operator to provide technical, engineering, and any other information that the operator believes shows that its actions to stabilize the mining site are adequate. If the department determines, after reviewing the information provided by the operator, that the proposed stabilization of the mining site will result in a substantial adverse impact to the environment, the department shall order the operator to begin additional measures to protect the environment, including, if the cessation is reasonably anticipated to extend for a protracted period of time, reclamation according to the reclamation plan or part of the reclamation plan. Usual and regular shutdown of operations on weekends, for maintenance or repair of equipment or facilities, or for other customary reasons do not constitute a cessation of mining.

295.66 History History: 2013 a. 1.

295.67 295.67 Determination of abandonment of mining.

295.67(1) (1) Except as provided in sub. (2), abandonment of mining occurs if there is a cessation of mining, not set forth in an operator’s mining plan or reclamation plan or by any other sufficient written or constructive notice, extending for more than 6 consecutive months.

295.67(2) (2) Abandonment of mining does not occur if all of the following apply:

295.67(2)(a) (a) The cessation of mining is due either to labor strikes or to unforeseen developments such as adverse market conditions.

295.67(2)(b) (b) The cessation of mining does not continue beyond the time, not to exceed 5 years, specified by the department.

295.67(2)(c) (c) The mining site is maintained in an environmentally stable manner during the cessation of mining.

295.67(2)(d) (d) The reclamation of the mining site continues according to the reclamation plan during the cessation of mining to the extent practicable.

295.67 History History: 2013 a. 1.

295.68 295.68 Certificates of completion and release of security.

295.68(1) (1) Upon the petition of the operator, but not less than 4 years after notification to the department by the operator of the completion of the reclamation plan or not less than one year after notification to the department by the operator of the completion of the reclamation plan as to a portion of the mining site, if the department finds that the operator has completed reclamation of any portion of the mining site in accordance with the reclamation plan and this subchapter, the department shall issue a certificate of completion setting forth a description of the area reclaimed and a statement that the operator has fulfilled its duties under the reclamation plan as to that area.

295.68(2) (2) Upon the issuance of any certificate of completion under sub. (1) for any portion of the mining site, but not for the entire mining site, the department shall allow the operator to reduce the amount of the bond or other security provided under s. 295.59 (1) to an amount equal to the estimated cost of reclamation of the portion of the mining site that is disturbed or for which reclamation has been completed but no certificate of completion has been issued.

295.68(3) (3) Upon issuance of a certificate or certificates of completion of reclamation for the entire mining site, the department shall require the operator to maintain a bond or other security under s. 295.59 (1) equal to at least 10 percent of the cost to the state of reclamation of the entire mining site, except that if the mining site in the mining plan is less than 10 acres, the department may release the bond or other security after issuance of the certificate of completion for the entire mining site.

295.68(4) (4) After 10 years after the issuance of a certificate or certificates of completion for the entire mining site, the department shall release the remaining bond or other security provided under s. 295.59 (1) if the department finds that the reclamation plan has been complied with.

295.68 History History: 2013 a. 1.

295.69 295.69 Termination of proof of financial responsibility for long-term care of mining waste site.

295.69(1) (1) One year after closure, and annually thereafter until the department terminates the obligation to maintain proof of financial responsibility for long-term care of a mining waste site under sub. (2) (c), an operator who has carried out all necessary long-term care during the preceding year, may apply to the department for a reduction in the amount of the proof of financial responsibility provided under s. 295.59 (2m) equal to the costs of long-term care for that year. The operator shall provide an itemized list of costs incurred. If the department determines that the costs incurred are in accordance with the long-term care requirements in the approved waste site feasibility study and plan of operation and that adequate funds exist to complete required long-term care for the remainder of the 40-year period on which the amount of the proof of financial responsibility was originally determined, the department shall authorize in writing a reduction in the amount of proof of financial responsibility provided. The department shall make its determinations within 90 days of an application.

295.69(2) (2) 

295.69(2)(a) (a) An operator may apply to the department for termination of its obligation to maintain proof of financial responsibility for long-term care of the mining waste site under s. 295.59 (2m) at any time after the mining waste site has been closed for 20 years by submitting an application that demonstrates that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment. The burden is on the operator to prove by a preponderance of the evidence that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment.

295.69(2)(b) (b) Within 30 days of receiving an application under par. (a), the department shall provide notice to the public of the application for termination of the obligation to maintain proof of financial responsibility for long-term care. In the notice, the department shall invite the submission of written comments by any person on the application within 30 days of the date of the publication of the notice. The department shall provide the notice by publishing a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the mining waste site, 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 the operator.

295.69(2)(c) (c) Within 120 days of the date of the publication of the notice under par. (b), the department shall determine either that proof of financial responsibility for long-term care of the mining waste site is no longer required, in which case the applicant is relieved of the responsibility of providing proof of financial responsibility for long-term care, or that proof of financial responsibility for long-term care of the mining waste site is still required, in which case the applicant may not submit another application under par. (a) until at least 5 years have elapsed since the previous application.

295.69 History History: 2013 a. 1.

295.695 295.695 Inspections by the department.

295.695(1) (1) Any duly authorized officer, employee, or representative of the department who has received the safety training under 30 CFR 48.31 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 subchapter and the provisions of chs. 281, 283, 285, 289, 291, 292, and 299 and rules promulgated under those chapters that are applicable to the mining operation. No person may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials.

295.695(2) (2) No person may obstruct, hamper, or interfere with any inspection authorized in sub. (1).

295.695(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.

295.695 History History: 2013 a. 1.

295.73 295.73 Fees.

295.73(1) (1) 

295.73(1)(a) (a) Except as provided in par. (b), an applicant for a mining permit is not required to pay any application or filing fee for any approval other than a mining permit, notwithstanding any fee required under ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291, or rules promulgated under those chapters.

295.73(1)(b) (b) An applicant for a mining permit shall pay any fee required under s. 281.343 (3) (c) 1.

295.73(3) (3) 

295.73(3)(a) (a) The department shall assess an applicant a fee equal to its costs, other than costs of a contract under par. (d), for evaluating the mining project, including the costs for consultants retained by the department to evaluate the application for the mining permit and the application for any other approval, or $2,000,000, whichever is less.

295.73(3)(b) (b) The applicant shall pay the fees under par. (a) as follows:

295.73(3)(b)1. 1. One hundred thousand dollars shall be paid at the time that the bulk sampling plan is filed under s. 295.45 or at the time that the notice of the intention to file a mining permit application is filed, whichever is first.

295.73(3)(b)2. 2. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 1. has been fully allocated against actual costs.

295.73(3)(b)3. 3. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 2. has been fully allocated against actual costs.

295.73(3)(b)4. 4. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 3. has been fully allocated against actual costs.

295.73(3)(b)5. 5. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 4. has been fully allocated against actual costs.

295.73(3)(b)6. 6. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 5. has been fully allocated against actual costs.

295.73(3)(b)7. 7. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 6. has been fully allocated against actual costs.

295.73(3)(b)8. 8. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 7. has been fully allocated against actual costs.

295.73(3)(b)9. 9. One hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 8. has been fully allocated against actual costs.

295.73(3)(c) (c) After the department approves or denies the application for a mining permit or, if the applicant withdraws the application for a mining permit, after the applicant withdraws the application, the department shall refund to the applicant any amount paid by the applicant under par. (a) but not fully allocated against the department’s actual costs.

295.73(3)(d) (d) In addition to the fees under par. (a), if the department contracts under s. 295.53 (1) with a consultant to assist in preparation of an environmental impact statement and awards the contract on the basis of competitive bids, the applicant shall pay the full costs as provided in the contract.

295.73(3)(e) (e) In addition to the fees under par. (a), the department may assess an applicant a fee equal to the department’s costs in providing wetland determinations and wetland boundary delineations under s. 295.60 (2).

295.73(4) (4) Subchapter VI of ch. 289 does not apply to mining waste disposed of in a mining waste site covered by a mining permit, except that an operator shall pay the fees specified in ss. 289.63 (4), 289.64 (3), and 289.67 (1) (d).

295.73 History History: 2013 a. 1.

295.75 295.75 Effect of other laws.

295.75(1) (1) Except as provided in sub. (2), if there is a conflict between a provision in this subchapter and a provision in ch. 23, 29, 30, 31, 160, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under one of those chapters, the provision in this subchapter controls.

295.75(2) (2) 

295.75(2)(a) (a) If there is a conflict between a provision in this subchapter and a provision in s. 281.343, the provision in s. 281.343 controls.

295.75(2)(b) (b) If there is a conflict between a provision in this subchapter and a provision in s. 281.346, the provision in s. 281.346 controls, except as provided in s. 295.57 (9) (a).

295.75 History History: 2013 a. 1.

295.77 295.77 Review.

295.77(1) (1) Limits on contested case hearings. No person is entitled to a contested case hearing on a decision by the department on an exploration license or an approval that is required before bulk sampling may be implemented. No person is entitled to a contested case hearing on a decision by the department on a mining permit application or any other approval, except as provided in subs. (2) and (3).

295.77(2) (2) Contested case hearings; after initial mining permit decision or decision on amended plan.

295.77(2)(a) (a) Entitlement.

295.77(2)(a)1. 1. A person is entitled to a contested case hearing on a decision by the department related to a mining permit for a proposed mining operation, including a decision related to the environmental impact statement for the proposed mining operation, or on any decision that is related to an approval associated with the proposed mining operation and that is issued no later than the day on which the department issues its decision on the application for the mining permit, only if the person is entitled to a contested case hearing on the decision under s. 227.42 and the person requests the hearing within 30 days after the department issues the decision to approve or deny the application for the mining permit.

295.77(2)(a)2. 2. A person is entitled to a contested case hearing on a decision by the department related to an amended mining plan, reclamation plan, or mining waste site feasibility study and plan of operation required under s. 295.63 (3) or to any amendment to an approval associated with the amended mining plan, reclamation plan, or mining waste site feasibility study and plan of operation only if the person is entitled to a contested case hearing on the decision under s. 227.42 and the person requests the hearing within 30 days after the department issues the decision to approve or deny the amended mining plan, reclamation plan, or mining waste site feasibility study and plan of operation.

295.77(2)(a)3. 3. All issues raised by all persons requesting a contested case hearing in accordance with subd. 1. or 2. in connection with the same mining operation shall be considered in one contested case hearing.

295.77(2)(b) (b) Deadline for decision.

295.77(2)(b)1. 1. The hearing examiner presiding over a contested case hearing under this subsection shall issue a final decision on the case no more than 150 days after the department issues the decision to grant or deny the mining permit or to approve or deny the amended mining plan, reclamation plan, or mining waste site feasibility study and plan of operation.

295.77(2)(b)2. 2. If the hearing examiner does not issue a final decision by the deadline under subd. 1., the decision of the department being reviewed by the hearing examiner is affirmed.

295.77(2)(c) (c) Restriction on orders. The hearing examiner presiding over a contested case hearing under this subsection may not issue an order prohibiting activity authorized under a decision of the department that is being reviewed in the contested case hearing.

295.77(2)(d) (d) Judicial review. A person seeking judicial review of the decision in a contested case hearing under this subsection shall comply with the requirements for service and filing in s. 227.53 (1) (a) and shall commence the action no more than 30 days after service of the decision or, if the hearing examiner does not issue a final decision by the deadline under par. (b) 1., no more than 30 days after that deadline.

295.77(3) (3) Contested case hearings on other decisions. A person is entitled to a contested case hearing on a decision by the department related to a mining operation that is issued after the department issues the decision to approve the application for the mining permit for the mining operation, other than a decision described in sub. (2) (a) 2., if the person is entitled to a contested case hearing under s. 227.42 and complies with the requirements for service and filing in s. 227.53 (1) (a).