Chapter NR 131

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.

NR 131.115 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (1) (b) made under s. 13.92 (4) (b) 7., Stats., Register December 2021 No. 792.

NR 131.116 NR 131.116 Reclamation bond and other financial assurance securities.

NR 131.116(1) (1) 

NR 131.116(1)(a) (a) Upon notification that a prospecting permit has been issued by the department but prior to commencing prospecting, the operator shall file with the department a bond conditioned on faithful performance of all of the requirements of this chapter and ch. 293, Stats. In lieu of a bond, the operator may deposit cash, certificates of deposit, or government securities with the department. Interest received on certificates of deposit and government securities shall be paid to the operator. The amount of the bond or other security required shall be equal to the estimated cost to the state of fulfilling the reclamation plan, in relation to that portion of the site that will be disturbed by the end of the following year. The department shall determine the estimated cost of reclamation of each prospecting site on the basis of relevant factors including expected changes in the price index, topography of the site, methods being employed, depth and composition of overburden, and depth of the prospecting excavation.

NR 131.116(1)(b) (b) The department, as provided under s. 293.53 (1) (a), Stats., may increase the amount of the bond, cash, certificates of deposit, or government security filed under par. (a) to assure adequate financing for the reclamation plan.

NR 131.116(1)(c) (c) A bond filed under par. (a) shall be issued by a surety company licensed to do business in Wisconsin. If the surety company’s license to do business is revoked or suspended, the operator, within 30 days after receiving written notice thereof from the department, shall substitute surety underwritten by a surety company licensed to do business in Wisconsin. Upon failure of the operator to make a substitution, the department shall suspend the operator’s prospecting permit until an acceptable substitute surety has been submitted.

NR 131.116(1)(d) (d) A bond filed under par. (a) shall provide that the bond shall not be canceled by the surety, except after not less than 90 days’ notice to the department in writing by registered or certified mail. Not less than 30 days prior to the expiration of the 90-day notice of cancellation, the operator shall deliver to the department a replacement bond in the absence of which all prospecting shall cease.

NR 131.116(3) (3) The applicant shall submit a certificate of insurance certifying that the applicant has in force a liability insurance policy issued by an insurer authorized to do business in this state, or in lieu of a certificate of insurance evidence that the applicant has satisfied state or federal self-insurance requirements, covering all prospecting operations of the applicant in this state and affording personal injury and property damage protection in a total amount deemed adequate by the department but not less than $50,000.

NR 131.116(4) (4) If a mining waste site is approved as part of a permitted prospecting project, the owner shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the long-term care requirements specified in the waste site feasibility study and plan of operation in accordance with ss. 293.51 (1g) and 289.41, Stats., and ch. NR 182. Proof of financial responsibility for long term care shall be submitted prior to operation of the mining waste facility.

NR 131.116(5) (5) If a mining waste site is approved as part of a permitted prospecting project, the operator shall provide and maintain proof of financial responsibility as required under s. 293.51 (1r), Stats., related to replacement of engineered cover systems or water management control systems used at the mining site or mining waste site to avoid adverse environmental consequences following closure of the mining waste site. The amount of the security required under this subsection shall be determined as provided in s. 293.51 (1r), Stats., and shall be specified as part of the prospecting permit and reclamation plan approval. Proof of financial responsibility under this subsection shall be submitted at the time of closure of the mining waste site and in accordance with provisions of ch. NR 182.

NR 131.116 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.117 NR 131.117 Monitoring.

NR 131.117(1) (1) The operator shall monitor the prospecting site and adjacent areas in accordance with the monitoring plan approved as part of the prospecting permit. The department may require the operator to perform additional monitoring of environmental changes during the course of the permitted activity and for such additional periods of time as is necessary to satisfactorily complete reclamation of the prospecting site and long-term care of the mining waste facility, if constructed as part of the prospecting operation.

NR 131.117(2) (2) The department may monitor environmental changes concurrently with the operator as stated in sub. (1) and for an additional period after the full reclamation bond is released under s. 293.63, Stats.

NR 131.117(3) (3) 

NR 131.117(3)(a) (a) Baseline data, monitoring data, and the monitoring plan shall be reviewed at the time of annual permit review or at such time as the operator requests any modification of the prospecting permit, prospecting plan, reclamation plan or monitoring plan.

NR 131.117(3)(b) (b) Baseline data and monitoring data shall be considered by the department in all enforcement actions including issuance of a stop order to an operator, requiring an immediate cessation of mining, in whole or in part, at any time that the department determines that there exists an immediate and substantial threat to public health and safety or the environment.

NR 131.117(3)(c) (c) If the analyses of samples indicate the quality of the groundwater is statistically significantly different from either baseline or background, the operator shall notify the department immediately and implement applicable provisions of the contingency plan submitted under s. NR 182.109 (2) (d) or 131.107 (3) (L).

NR 131.117(4) (4) Any request for modification of the scope of the monitoring plan approved as part of the prospecting permit, including sampling parameters, monitoring locations and frequency and duration of sampling, shall comply with the procedures in s. NR 131.120. Changes in monitoring equipment and sampling and analytical protocols may be reviewed and approved by the department and are not subject to the modification procedural requirements of s. NR 131.120.

NR 131.117(5) (5) All laboratory chemical analyses required under the monitoring plan shall be conducted by a laboratory certified under s. 299.11, Stats., and ch. NR 149 or other certification program applicable to specific test categories.

NR 131.117 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22; correction in (3) (c) made under s. 35.17, Stats., Register December 2021 No. 792.

NR 131.118 NR 131.118 Inspections.

NR 131.118(1) (1) Subject to applicable state and federal safety rules or regulations, any authorized officer, employee, or representative of the department may enter and inspect any property, premises or place on or at which any prospecting 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 chapter and chs. 30, 281, 283, 285, 289 to 292, and 299, Stats., and rules adopted under those chapters.

NR 131.118(2) (2) No operator may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor may any person obstruct, hamper, or interfere with any such inspection.

NR 131.118(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.

NR 131.118 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.119 NR 131.119 Reporting and prospecting permit review.

NR 131.119(1) (1) Annual report. By January 31 of each year, an operator shall submit an annual report to the department summarizing the extent of prospecting, the extent of reclamation activities, and other activities conducted at the prospecting site in the preceding calendar year. The operator shall provide the department with a quantity of paper copies specified by the department and shall provide a complete electronic version in a format specified by the department. The annual report shall include text, maps, tabular summaries and graphics as appropriate, documenting all of the following:

NR 131.119(1)(a) (a) A summary of all prospecting completed at the prospecting site during the year, including the extent of additional surface disturbance during the year and total acres of disturbed area on the prospecting site.

NR 131.119(1)(b) (b) The volume of material removed, stockpiled, or disposed of on the prospecting site including mining wastes by category, topsoil, and non-prospecting solid waste.

NR 131.119(1)(c) (c) A summary of reclamation activities including temporary and permanent reclamation and ongoing site maintenance activities that were completed during the year, including, as applicable, a summary of reclamation monitoring results, an evaluation of completed reclamation as related to the reclamation success criteria specified in the approved reclamation plan, an assessment of the effectiveness of specific reclamation activities conducted that year and recommendations for changes to specific reclamation protocols to consider for future work.

NR 131.119(1)(d) (d) A summary of prospecting site dewatering statistics including monthly pumping totals, if applicable.

NR 131.119(1)(e) (e) A summary of water treatment activities, if applicable, including monthly totals of water treated and discharged.

NR 131.119(1)(f) (f) A summary of any incidents and related responses concerning spills, pond overflows, embankment failures or leakage, liner failures, pipeline failures or leaks, or other unforeseen environmental releases that occurred at the prospecting site.

NR 131.119(1)(g) (g) A summary of any plan or permit modifications and any deviations from approved plans not subject to a modification.

NR 131.119(1)(h) (h) A summary of environmental monitoring activities and results required under the approved monitoring plan, including an analysis of the data to determine the development of any observable trends and a comparison of the data to background values and predicted values, if predictive modeling or similar analyses were conducted as part of the prospecting permit review process.

NR 131.119(1)(i) (i) A discussion of the extent of additional surface disturbance to be expected by the end of the next calendar year including estimates of the volumes of topsoil, ore, mining waste, merchantable by-products, and other materials to be removed.

NR 131.119(1)(j) (j) An assessment of the adequacy of the amount of the financial surety posted under s. NR 131.116 (1) considering the anticipated condition of the prospecting site at the end of the next calendar year, applicable provisions of the approved reclamation plan, any changes in reclamation costs or changes in state, federal or local regulatory requirements applicable to the prospecting operation. This analysis shall clearly identify the amount of financial security necessary to fulfill the reclamation plan relative to the prospecting site as it is projected to exist at the end of the calendar year.

NR 131.119(2) (2) Permit review. The department shall review the prospecting permit, prospecting plan, reclamation plan, and required financial securities annually after issuance of the prospecting permit, to ascertain adequacy, compliance with state or federal laws enacted after the issuance of the permit, and technological currency. The department shall provide its findings to the operator within 30 days after receipt of the annual report submitted under sub. (1). If the department, after review, determines that the plans should be modified or the bond amount changed, it shall notify the operator of the necessary modifications or changes and establish a schedule for submitting modified plans in accordance with s. NR 131.120.

NR 131.119 History History: CR 20-043: cr. Register December 2021 No. 792, eff. 1-1-22.

NR 131.120 NR 131.120 Prospecting permit and plan modification.

NR 131.120(1) (1) If the department after review of the prospecting permit, prospecting plan and reclamation plan determines that the permit or plans should be modified or the bond amount changed, it shall notify the permit holder of the necessary modifications or changes. If the permit holder does not request a hearing within 30 days, the modifications or changes shall be deemed accepted.

NR 131.120(2) (2) An operator, at any time, may apply for amendment or cancellation of a prospecting permit or for a change in the prospecting plan, reclamation plan, or monitoring plan for any prospecting operation that the operator owns or leases.

NR 131.120(2)(a) (a) The operator shall submit any application for the amendment, cancellation, or change in a format specified by the department. The request shall identify the tract of land to be added to or removed from the permitted prospecting site or to be affected by a change in the prospecting or reclamation plans. The request shall clearly identify any proposed changes in the prospecting plan, reclamation plan, or monitoring plan, reasons for the changes and anticipated environmental and economic impacts of the proposed changes.

NR 131.120(2)(b) (b) The department shall determine if any change in the prospecting plan, reclamation plan, or monitoring plan substantially broadens or changes the scope of the original prospecting project and provide notice of its determination in the same manner as specified under s. 293.43 (2m) (b), Stats.