Chapter NR 131

NR 131.109(2)(f) (f) Topsoil from surface areas disturbed during the prospecting operation shall be removed and stored in an environmentally acceptable manner for use in reclamation.

NR 131.109(2)(g) (g) Disturbed surface areas shall be revegetated as soon as practicable after the disturbance to stabilize slopes and prevent air and water pollution, with the objective of reestablishing a variety of plants and animals indigenous to the area immediately prior to prospecting, unless such reestablishment is inconsistent with the provisions of s. 293.01 (23), Stats. Plant species not indigenous to the area may be used if necessary, to provide rapid stabilization of slopes and prevention of erosion, if such species are acceptable to the department, but the ultimate goal of reestablishment of indigenous species shall be maintained.

NR 131.109(3) (3) An analysis of alternative viable final land uses for the reclaimed site, including the presumed final use of returning affected areas to their approximate original state. The analysis of all options shall consider the extent to which the option is physically, economically and environmentally achievable and socially acceptable.

NR 131.109 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.110 NR 131.110 Location criteria and environmental standards.

NR 131.110(1) (1) No person may establish, construct, operate, or maintain the use of property for any prospecting related buildings, roads, ponds, or other purposes within the following areas except pursuant to an exemption granted under s. NR 131.112 or in compliance with another approval, license, or permit issued by the department:

NR 131.110(1)(a) (a) Within areas identified as unsuitable under s. NR 131.103 (25) unless the applicant conclusively certifies that he or she will not subsequently make application for a permit to conduct surface mining at the site.

NR 131.110(1)(b) (b) Within 500 feet of the ordinary high-water mark of any existing navigable lake, pond, or flowage.

NR 131.110(1)(c) (c) Within 500 feet of the ordinary high-water mark of a navigable river or stream.

NR 131.110(1)(d) (d) Within a floodplain.

NR 131.110(1)(e) (e) Within 1,000 feet of the nearest edge of the right-of-way of any of the following unless, regardless of season, the site is visually inconspicuous due to screening or being visually absorbed due to natural objects, compatible natural plantings, earth berm, or other appropriate means, or unless, regardless of season, the site is screened so as to be aesthetically pleasing and inconspicuous to the extent feasible:

NR 131.110(1)(e)1. 1. Any state trunk highway, interstate, or federal primary highway.

NR 131.110(1)(e)2. 2. The boundary of a state public park.

NR 131.110(1)(e)3. 3. The boundary of a scenic easement purchased by the department or the department of transportation.

NR 131.110(1)(e)4. 4. The boundary of a designated scenic or wild river.

NR 131.110(1)(e)5. 5. A scenic overlook designated by the department by administrative rule.

NR 131.110(1)(e)6. 6. A bike or hiking trail designated by the United States congress or the state legislature.

NR 131.110(1)(f) (f) Within wetlands, except pursuant to the provisions under s. 281.36, Stats.

NR 131.110(1)(g) (g) Within areas that will result in noncompliance with applicable groundwater quality and quantity protection provisions.

NR 131.110(1)(h) (h) Within areas that will result in noncompliance with other applicable federal and state laws and regulations.

NR 131.110(2) (2) The requirements in sub. (1) do not apply to an exemption granted under s. NR 131.112 or in compliance with another approval, license, or permit issued by the department.

NR 131.110 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2021 No. 792.

NR 131.111 NR 131.111 Minimum design and operation. An operator shall construct, establish, operate and maintain a prospecting site in conformance with the conditions attached to the prospecting permit, and all of the following requirements:

NR 131.111(1) (1) An operator shall construct a prospecting site to meet all of the following requirements:

NR 131.111(1)(a) (a) Place site elements where least observable from off the premises in any season.

NR 131.111(1)(b) (b) Place site elements within the area of the overall site that is most visually compatible in respect to building shape.

NR 131.111(1)(c) (c) Paint and maintain buildings and other structures in a manner that is visually compatible with the surrounding vegetational and earth conditions. If a building or other structure cannot be painted and maintained in a manner that is visually compatible or if painting and maintaining a building or other structure in a manner that is visually compatible would cause safety concerns, the building or structure shall be made as visually inconspicuous as is practicable.

NR 131.111(2) (2) An operator shall implement effective means, consistent with applicable state and federal safety-related regulations, to limit access to the site to minimize exposure of the public to hazards.

NR 131.111(3) (3) An operator shall handle and store flammable, combustible, or hazardous liquids, including fuel and oil products, on the prospecting site in compliance with applicable state and federal regulations including ch. ATCP 93 and federal spill prevention control and countermeasure regulations in 40 CFR part 112.

NR 131.111(4) (4) An operator shall make reasonable effort to reduce and control the production of contaminated water.

NR 131.111(5) (5) An operator shall collect, store, recycle or treat contaminated water, including liquid effluents, from whatever source associated with the project to ensure compliance with applicable water quality standards.

NR 131.111(6) (6) An operator shall collect and treat contaminated nonpoint source runoff from disturbed areas within the prospecting site in a manner that facilitates monitoring, maximum practicable recycling reuse, and consumption within the prospecting operation. Nonpoint sources of water pollution shall be minimized. Point source discharges of pollutants from storm water and wastewater shall be regulated pursuant to ch. 283, Stats.

NR 131.111(7) (7) An operator shall make provisions for critical back-up equipment in the event of operation equipment breakdown.

NR 131.111(8) (8) An operator shall include design and operation specifications for prospecting site facilities that include contingencies for emergency conditions. Such contingencies may include emergency power supplies, equipment redundancies, or temporary holding facilities.

NR 131.111(9) (9) An operator shall design, construct, maintain, operate and reclaim any prospecting site permitted under this chapter to protect groundwater quality and quantity in accordance with the requirements of ch. NR 182 and ss. 293.37 (5), 293.65, and 293.66, Stats.

NR 131.111(10) (10) An operator may not use waste containing potentially harmful concentrations of acid generating material for purposes such as construction fill material for surface facilities or the construction of parking lots or roads at a permitted prospecting site.

NR 131.111(11) (11) An operator shall design prospecting site facilities to minimize surface area disturbance unless an alternate prospecting site design results in less overall environmental impact.

NR 131.111(12) (12) An operator shall utilize, where practicable, elevation differences in water-based transport systems for gravity flows to minimize pumping facilities and pressures.

NR 131.111(13) (13) An operator shall employ best management practices to control the spread of invasive species on the mining site during construction, operation and reclamation of project facilities.

NR 131.111 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.112 NR 131.112 Exemptions and variances.

NR 131.112(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 131.112(1)(a) (a) A prospecting permit application, including the prospecting plan, reclamation plan, monitoring plan, mining waste site feasibility study, and mining waste site plan of operation.

NR 131.112(1)(b) (b) A prospecting permit.

NR 131.112(2) (2) Exemption and variance requests submitted as part of the prospecting permit application process.

NR 131.112(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 prospecting 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 131.112(2)(b) (b) An applicant shall submit an application for an exemption or variance under this subsection no later than 60 days after the prospecting 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 prospecting permit under s. 293.43 (3m), Stats.

NR 131.112(2)(c) (c) The department shall issue a decision on a request for an exemption or variance as part of the decision on the prospecting permit under s. NR 131.114 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 prospecting site.

NR 131.112(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 laws. 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 131.112(3) (3) Exemption and variance requests submitted after permit application review period and before issuance of prospecting permit. If an applicant submits a request for a variance or exemption under this section more than 60 days after the prospecting permit application is considered complete but before the department issues or denies the prospecting permit, the application for an exemption or variance shall be processed following the provisions of s. 293.495 (1) (c), Stats.

NR 131.112(4) (4) Exemption and variance requests submitted after issuance of prospecting permit. The department shall process any exemption and variance request under this section submitted after issuance of a prospecting permit as a modification under s. 293.53 (1) (b), Stats., and s. NR 131.120.

NR 131.112(5) (5) Information to support exemption and variance requests. 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 131.112 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; (5) (title) created under s. 13.92 (4) (b) 2., Stats., Register December 2021 No. 792.

NR 131.113 NR 131.113 Timeline for review of prospecting permit application.

NR 131.113(1) (1) Subject to subs. (4) and (5), within 180 days after an applicant submits an application for a prospecting permit, an environmental impact report, if required, and any applications for other approvals, licenses, or permits relating to the prospecting 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 prospecting project.

NR 131.113(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 prospecting project.

NR 131.113(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 prospecting permit, and draft approvals, licenses, or permits relating to the prospecting 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 131.113(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 prospecting 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 131.113(5) (5) The department and the applicant may agree to modify all or part of the timeline under this section.

NR 131.113(6) (6) The department may request additional information needed to process a prospecting permit application or any other application for an approval, license, or permit related to the prospecting 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 131.113 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.114 NR 131.114 Prospecting permit issuance.

NR 131.114(1) (1) Unless denied pursuant to s. NR 131.115 and except with respect to property specified in s. 41.41 (11), Stats., within 60 days of the completion of the record for the public hearing held under s. 293.43, Stats., the department shall issue the prospecting permit if it finds all of the following:

NR 131.114(1)(a) (a) The prospecting plan and reclamation plan comply with this chapter and ch. 293, Stats., and the prospecting plan and reclamation plan are approved as part of the prospecting permit.

NR 131.114(1)(b) (b) The site is not unsuitable for prospecting.

NR 131.114(2) (2) The department shall make an approval 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 prospecting or reclamation plans in order to meet the requirements of this chapter, and, as modified or conditioned, grant its approval.

NR 131.114(3) (3) Except as otherwise provided in s. 293.57, Stats., a prospecting permit shall be valid for the life of the project unless canceled under s. 293.85 (1) or (3), Stats., or revoked under s. 293.87 (2) or (3), Stats. Unless previously modified, canceled, or revoked, a prospecting permit issued under this section shall remain valid until reclamation of the entire prospecting site has been certified as complete under s. NR 131.121 and a revised prospecting permit is issued under s. NR 131.121 (7) (b).

NR 131.114 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register December 2021 No. 792.

NR 131.115 NR 131.115 Prospecting permit denial.

NR 131.115(1) (1) Denial. Within 60 days of the completion of the record for the public hearing held under s. 293.43, Stats., the department shall deny the prospecting permit if it finds any of the following:

NR 131.115(1)(a) (a) The prospecting site is unsuitable for prospecting or, absent certification under s. 293.35 (1), Stats., surface mining.

NR 131.115(1)(b) (b) The prospecting plan and the reclamation plan will not comply with the minimum standards for prospecting and reclamation as provided in ss. NR 131.108 and 131.109.

NR 131.115(1)(c) (c) The applicant is in violation of ch. 293, Stats., and the provisions of this chapter.

NR 131.115(1)(d) (d) The applicant has within the previous 20 years forfeited any bond posted in accordance with prospecting or mining activities in this state, unless by mutual agreement with the state.

NR 131.115(1)(e) (e) Any officer or director of the applicant has, while employed by the applicant, the applicant’s parent corporation, any of the applicant’s principal shareholders, or any of the applicant’s subsidiaries or affiliates, in which the applicant owns more than a 40 percent interest, within the previous 20 years forfeited any bond posted in accordance with prospecting or mining activities in this state unless by mutual agreement with the state.

NR 131.115(1)(f) (f) The proposed prospecting operation may reasonably be expected to create any of the following situations:

NR 131.115(1)(f)1. 1. Landslides or substantial deposition from the proposed operation in stream or lake beds which cannot be feasibly prevented.

NR 131.115(1)(f)2. 2. Significant surface subsidence which cannot be reclaimed because of the geologic characteristics present at the proposed site.

NR 131.115(1)(f)3. 3. Hazards resulting in irreparable damage to any of the following, which cannot be prevented under the requirements of ch. 293, Stats., 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 131.115(1)(f)3.a. a. Dwelling houses.

NR 131.115(1)(f)3.b. b. Public buildings.

NR 131.115(1)(f)3.c. c. Schools.

NR 131.115(1)(f)3.d. d. Churches.

NR 131.115(1)(f)3.e. e. Cemeteries.

NR 131.115(1)(f)3.f. f. Commercial or institutional buildings.

NR 131.115(1)(f)3.g. g. Public roads.

NR 131.115(1)(f)3.h. h. Other public property designated by the department.

NR 131.115(1)(f)4. 4. Irreparable environmental damage to lake or stream bodies despite adherence to the requirements of ch. 293, Stats. This subdivision does not apply to an activity which 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 the law.

NR 131.115(2) (2) Notice of denial. If the department denies an application for a prospecting permit, the department shall furnish the operator findings of fact, conclusions of law, and an order setting forth the reasons for denial.