Chapter NR 135

NR 135.22(1)(b) (b) The proposed nonmetallic mining site cannot be reclaimed in compliance with the reclamation standards contained in the applicable reclamation ordinance, this chapter or subch. I of ch. 295, Stats.

NR 135.22(1)(c) (c)

NR 135.22(1)(c)1. 1. The applicant, or its agent, principal or predecessor has, during the course of nonmetallic mining in Wisconsin within 10 years of the permit application or modification request being considered shown a pattern of serious violations of this chapter or of federal, state or local environmental laws related to nonmetallic mining reclamation.

NR 135.22(1)(c)2. 2. The following may be considered in making this determination of a pattern of serious violations:

NR 135.22(1)(c)2.a. a. Results of judicial or administrative proceedings involving the operator or its agent, principal or predecessor.

NR 135.22(1)(c)2.b. b. Suspensions or revocations of nonmetallic mining reclamation permits pursuant to this chapter.

NR 135.22(1)(c)2.c. c. Forfeitures of financial assurance.

NR 135.22(1)(d) (d) A denial under this subsection shall be in writing and shall contain documentation of reasons for denial.

NR 135.22(2) (2) A regulatory authority’s decision to deny an application to issue a reclamation permit may be reviewed under s. NR 135.30.

NR 135.22 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.23 NR 135.23 Automatic permitting and expedited permit review.

NR 135.23(1) (1) Automatic permitting of borrow sites for local transportation projects.

NR 135.23(1)(a) (a) The regulatory authority shall automatically issue an expedited permit under this subsection if the borrow site:

NR 135.23(1)(a)1. 1. Will be opened and reclaimed under contract with a municipality within a period not exceeding 36 months;

NR 135.23(1)(a)2. 2. Is a nonmetallic mine which is intended to provide stone, soil, sand or gravel for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or other transportation facility under contract with a municipality;

NR 135.23(1)(a)3. 3. Is regulated and will be reclaimed under contract with a municipality in accordance with the requirements of the department of transportation concerning the restoration of nonmetallic mining sites;

NR 135.23(1)(a)4. 4. Is not a commercial source;

NR 135.23(1)(a)5. 5. Will be constructed, operated and reclaimed in accordance with applicable zoning requirements, if any, and;

NR 135.23(1)(a)6. 6. Is not otherwise exempt from the requirements of this chapter under s. NR 135.02 (3).

NR 135.23(1)(b) (b) The applicant shall notify the regulatory authority of the terms and conditions of the contract with respect to reclamation of the proposed borrow site.

NR 135.23(1)(c) (c) The applicant shall provide evidence to the regulatory authority to show that the borrow site and its reclamation will comply with applicable zoning requirements, if any.

NR 135.23(1)(d) (d) The regulatory authority shall accept the contractual provisions incorporating requirements of the department of transportation in lieu of a reclamation plan under s. NR 135.19.

NR 135.23(1)(e) (e) The regulatory authority shall accept the contractual provisions in lieu of the financial assurance requirements in s. NR 135.40.

NR 135.23(1)(f) (f) The public notice and hearing provisions of s. NR 135.20 do not apply to nonmetallic mining sites that are issued automatic permits under this subsection.

NR 135.23 Note Note: Local public notice and hearing requirements, if any, regarding zoning decisions still apply.

NR 135.23(1)(g) (g) The annual fees under s. NR 135.39 shall apply, however, the regulatory authority may not charge a plan review fee or an expedited plan review fee. Notwithstanding s. NR 135.39 (4) (b) and (c), the total annual fee including the department share shall not exceed the amount in Table 3 of s. NR 135.39.

NR 135.23(1)(h) (h) The regulatory authority shall issue the automatic permit within 7 days of the receipt of a complete application.

NR 135.23(1)(i) (i) If the borrow site is used to concurrently supply materials for other than the local transportation project, the automatic permitting in this subsection still applies provided the site will reclaimed under a contractual obligation with the municipality in accordance with the department of transportation requirements.

NR 135.23(1)(j) (j) Notwithstanding s. NR 135.36, the operator of a borrow site under this subsection is required to submit only the information in an annual report necessary to identify the borrow site and to determine the applicable annual fee.

NR 135.23(2) (2) Expedited permitting.

NR 135.23(2)(a) (a) An applicant may request expedited permit review by proceeding in accordance with par. (b) or (c).

NR 135.23(2)(b) (b) An applicant may submit a request for expedited review with payment of the fee required under s. NR 135.39 (4). This request shall state the need for expedited review and the date by which the expedited review is requested.

NR 135.23(2)(c) (c) An applicant may submit a request for an expedited review if the applicant requires a reclamation permit to perform services under contract with a municipality. This request for expedited review shall state the need for expedited review and shall include a copy of the applicable sections of the contract and the date by which the expedited review is requested.

NR 135.23(2)(d) (d) Following receipt of a request under this subsection, the regulatory authority shall inform the applicant of the estimated date for decision on issuance of the permit. If the applicant then elects not to proceed with the expedited review, the fee paid pursuant to par. (b) shall be returned.

NR 135.23(2)(e) (e) The expedited review process may not waive the requirements of this subchapter for public notice and hearing. This section does not impose an obligation upon the regulatory authority to act upon a permit application under this section by a specific date.

NR 135.23 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.24 NR 135.24 Permit modification.

NR 135.24(1) (1) By the regulatory authority. If a regulatory authority finds that, because of changing conditions, the nonmetallic mining site no longer is in compliance with this chapter or the applicable reclamation ordinance, it shall issue an order modifying the permit in accordance with s. NR 135.43. This modifying order may require the operator to amend or submit new application information, reclamation plan, proof of financial assurance or other information needed to ensure compliance with this chapter or the applicable reclamation ordinance.

NR 135.24(2) (2) By the operator. If an operator desires to modify a nonmetallic mining reclamation permit or reclamation plan, the operator shall submit an application to modify the permit or plan to the regulatory authority. The application shall be subject to the requirements of this subchapter. The regulatory authority that issued the permit shall take action on the application to modify it in accordance with the standards and procedures contained in this subchapter.

NR 135.24(3) (3) Review. All actions by the regulatory authority pursuant to this section may be reviewed under s. NR 135.30.

NR 135.24 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.25 NR 135.25 Permit suspension and revocation.

NR 135.25(1) (1) Grounds. A regulatory authority may suspend or revoke a nonmetallic mining permit issued pursuant to this chapter if it finds that the operator has done any of the following:

NR 135.25(1)(a) (a) Failed to submit a satisfactory reclamation plan within the time frames specified in this subchapter.

NR 135.25(1)(b) (b) Failed to submit or maintain financial assurance as required by this chapter.

NR 135.25(1)(c) (c) Failed on a repetitive and significant basis to follow the approved reclamation plan.

NR 135.25(2) (2) Suspension. If the regulatory authority makes any of the findings in sub. (1), it may suspend a nonmetallic mining reclamation permit for up to 30 days. During the time of suspension, the operator may not conduct nonmetallic mining at the site, except for reclamation or measures to protect human health and the environment as ordered by the regulatory authority pursuant to s. NR 135.43.

NR 135.25(3) (3) Revocation. If a regulatory authority makes any of the findings in sub. (1), it may revoke a nonmetallic mining reclamation permit. Upon permit revocation, the operator shall forfeit the financial assurance it has provided pursuant to s. NR 135.40 to the regulatory authority. The regulatory authority may use forfeited financial assurance to reclaim the site to the extent needed to comply with this chapter and the applicable reclamation ordinance.

NR 135.25 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.26 NR 135.26 Approval of alternate requirements.

NR 135.26(1) (1) Criteria. A regulatory authority may approve an alternate requirement to the reclamation standards established in this chapter if the operator demonstrates and the regulatory authority finds that all of the following criteria are met:

NR 135.26(1)(a) (a) The nonmetallic mining site, the surrounding property or the mining plan or reclamation plan has a unique characteristic which requires an alternate requirement.

NR 135.26(1)(b) (b) Unnecessary hardship which is peculiar to the nonmetallic mining site or plan will result unless the alternate requirement is approved.

NR 135.26(1)(c) (c) Reclamation in accordance with the proposed alternate requirement will achieve the planned post-mining land use and long term site stability in a manner that will not cause environmental pollution or threaten public health, safety or welfare.

NR 135.26(2) (2) Procedures.

NR 135.26(2)(a) (a) An operator who requests an alternate requirement shall submit the request in writing as required in the applicable reclamation ordinance.

NR 135.26(2)(b) (b) If the regulatory authority is a county or municipality, the alternate requirement shall be approved or disapproved as provided in the applicable reclamation ordinance. Approval or disapproval shall be in writing and shall contain documentation of the reasons why the alternate requirement was or was not approved.

NR 135.26(2)(c) (c) If the department is the regulatory authority, the request shall be submitted to the department’s bureau of waste management, which shall have authority to approve these requests. Approval or disapproval shall be in writing and shall contain documentation of the reasons why the alternate requirement was or was not approved.

NR 135.26(2)(d) (d) A request for an alternate requirement may be incorporated as part of an application to issue or modify a nonmetallic mining reclamation permit.

NR 135.26(2)(e) (e) An applicable reclamation ordinance may provide opportunity for public informational hearing pursuant to this subchapter prior to the regulatory authority’s action on a request for an alternate requirement.

NR 135.26(3) (3) Department review.

NR 135.26(3)(a) (a) The regulatory authority shall submit written notice to the department at least 10 days prior to public hearing pursuant to sub. (2) (e) on the proposed alternate requirement.

NR 135.26(3)(b) (b) If the department determines that the proposed alternate requirement does not comply with the intent of this chapter or the applicable reclamation ordinance, the department may notify the regulatory authority of this determination either prior to or during the public hearing.

NR 135.26(3)(c) (c) The regulatory authority shall submit each written decision on an alternate requirement to the department within 10 days of issuance.

NR 135.26 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.27 NR 135.27 Permit duration. A nonmetallic mining reclamation permit issued pursuant to this chapter shall last through the mine’s operation and reclamation as described in the approved reclamation plan. If changes occur in the area to be mined, the nature of planned reclamation, or other aspects of mining require that the approved reclamation plan be amended, the operator shall apply for a permit modification pursuant to s. NR 135.24 (2). If the mine operator is not the landowner, the permit duration cannot exceed the duration of the lease unless the lease is renewed or the permit is transferred to a subsequent lessee or the landowner pursuant to s. NR 135.28.

NR 135.27 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.28 NR 135.28 Permit transfer.

NR 135.28(1) (1) A nonmetallic mining permit may be transferred to a new operator upon submittal to the regulatory authority of proof of financial assurance and a certification in writing by the new permit holder that all conditions of the permit will be complied with.

NR 135.28(2) (2) The transfer is not valid until financial assurance has been submitted by the new operator and accepted by the regulatory authority and the regulatory authority makes a written finding that all conditions of the permit will be complied with. The previous operator shall maintain financial assurance until the new operator has received approval and provided the financial assurance under this section.

NR 135.28 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.29 NR 135.29 Change of regulatory authority. If there is a change of regulatory authority for a nonmetallic mining site, the site’s nonmetallic mining permit shall remain in effect and be enforceable until the permit is modified by the new regulatory authority.

NR 135.29 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.30 NR 135.30 Review of permit decision.

NR 135.30(1) (1) County or municipal permit decision. Notwithstanding ss. 68.001, 68.03 (8) and (9), 68.06 and 68.10 (1) (b), Stats., any person who meets the requirements of s. 227.42 (1), Stats., may obtain a contested case hearing under s. 68.11, Stats., on a county or municipal regulatory authority’s decision to issue, deny or modify a nonmetallic mining reclamation permit.

NR 135.30(2) (2) Department permit decision. Any person who meets the requirements of s. 227.42 (1), Stats., may seek review of a department decision to issue, deny or modify a nonmetallic mining reclamation permit, where the department administers a nonmetallic mining reclamation program pursuant to s. NR 135.17 (3). This hearing shall be held as a contested case hearing pursuant to ss. 227.42 and 227.43, Stats. The hearing shall be conducted within the county where the nonmetallic mining site is located. Decisions from these hearings are reviewable in court pursuant to ss. 227.52 to 227.59, Stats.

NR 135.30 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

subch. IV of ch. NR 135 Subchapter IV — Administration and Enforcement

NR 135.32 NR 135.32 Regulatory authorities for administration of a nonmetallic mining reclamation program.

NR 135.32(1) (1) Counties required to administer nonmetallic mining reclamation programs. Each county shall enact and administer a nonmetallic reclamation ordinance that complies with this chapter, except as provided in subs. (2), (3) and (4). Counties shall administer them in conformance with this chapter. Within 6 months of the effective date of revisions to this chapter, counties shall amend their ordinances to ensure compliance with this chapter.

NR 135.32(2) (2) Municipalities permitted to administer a nonmetallic mining reclamation program. A municipality may administer and enforce a nonmetallic mining reclamation program pursuant to this subchapter if it has adopted and administers a reclamation ordinance that complies with this chapter. Municipalities shall administer these ordinances in conformance with this chapter. Nonmetallic mining subject to municipal administration and enforcement is not subject to county or department administration and enforcement pursuant to this subchapter. Within 6 months of the effective date of revisions to this chapter, municipalities that continue to administer nonmetallic mining reclamation programs shall amend their ordinances to ensure compliance with this chapter.

NR 135.32(3) (3) Department to administer a nonmetallic mining reclamation program under certain conditions. The department shall administer and enforce a nonmetallic mining reclamation program pursuant to this subchapter only under either of the following conditions:

NR 135.32(3)(a) (a) The county in which a nonmetallic mining site is located has not enacted an applicable reclamation ordinance, and no applicable reclamation ordinance has been adopted by the municipality in which the site is located.

NR 135.32(3)(b) (b) The department finds, after a hearing pursuant to subch. V, that a county or municipality’s nonmetallic mining reclamation program does not comply with this chapter, except as follows:

NR 135.32(3)(b)1. 1. If the department finds a municipality’s program does not comply with this chapter, the county in which the site is located shall administer and enforce a nonmetallic mining reclamation program if it enacts an applicable reclamation ordinance.

NR 135.32(3)(b)2. 2. If the department finds a county’s program does not comply with this chapter, any municipality that has enacted an applicable reclamation ordinance by the time of this finding may continue to administer and enforce its nonmetallic mining reclamation program.

NR 135.32(4) (4) If all cities, villages and towns that contain nonmetallic mines in a county with a population of 700,000 or more administer and enforce a nonmetallic mining reclamation program pursuant to this chapter by the first day of the fourth month following December 1, 2000, that county may elect not to adopt an applicable nonmetallic mining reclamation ordinance and not to administer and enforce a nonmetallic mining reclamation program.

NR 135.32 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (1) and (2) Register November 2006 No. 611, eff. 12-1-06.

NR 135.35 NR 135.35 Model nonmetallic mining reclamation ordinances. The department shall prepare and publish one or more model reclamation ordinances for counties and municipalities to use in complying with the requirements of this chapter.