Chapter NR 135

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.

NR 135.35 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.36 NR 135.36 Operator reporting requirements.

NR 135.36(1) (1) An operator shall submit an annual report for every nonmetallic mining site with a reclamation permit to the regulatory authority. The annual report shall include all of the following:

NR 135.36(1)(a) (a) The name and mailing address of the operator.

NR 135.36(1)(b) (b) The location of the nonmetallic mining site, including legal description, tax key number or parcel identification number if available.

NR 135.36(1)(d) (d) The identification number of the applicable nonmetallic mining permit, if assigned by the regulatory authority.

NR 135.36(1)(e) (e) The acreage currently affected by nonmetallic mining extraction and not yet reclaimed.

NR 135.36(1)(f) (f) The amount of acreage that has been reclaimed to date, on a permanent basis and the amount reclaimed on an interim basis.

NR 135.36(1)(g) (g) A plan, map or diagram accurately showing the acreage described in pars. (e) and (f).

NR 135.36(1)(h) (h) The following certification, signed by the operator:

“I certify that this information is true and accurate, and that the nonmetallic mining site described herein complies with all conditions of the applicable nonmetallic mining permit and Chapter NR 135, Wisconsin Administrative Code.”

NR 135.36(2) (2) The annual report shall cover activities on unreclaimed acreage for the previous calendar year and be submitted by January 31.

NR 135.36(3) (3) Annual reports shall be submitted by an operator for all active and intermittent mining sites to the regulatory authority for each calendar year until nonmetallic mining reclamation at the site is certified as complete pursuant to s. NR 135.38 or at the time of release of financial assurance pursuant to s. NR 135.40 (7).

NR 135.36(4) (4) A regulatory authority may, at its discretion, obtain the information required in sub. (1) for a calendar year by written documentation of its inspections of a nonmetallic mining site. If the regulatory authority obtains and documents the required information, the annual report need not be submitted by the operator. If the regulatory authority determines that the operator need not submit an annual report pursuant to this subsection, the regulatory authority shall advise the operator in writing at least 30 days before the end of the applicable calendar year. In that case, the regulatory authority shall require the operator to submit the certification required in sub. (1) (h).

NR 135.36(5) (5) A regulatory authority shall retain annual reports required by sub. (1) or equivalent records as provided in sub. (4) for 10 years after they are submitted, and shall make them available upon request to the department for inspection or audit activities the department conducts pursuant to subch. V.

NR 135.36 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (2) Register November 2006 No. 611, eff. 12-1-06.

NR 135.37 NR 135.37 Regulatory authority’s annual report to the department. Unless the department is the regulatory authority, the regulatory authority shall submit an annual program report to the department by March 31 for the previous calendar year. The regulatory authority’s annual report shall include the following:

NR 135.37(1) (1) The total number of nonmetallic mining permits in effect.

NR 135.37(2) (2) The number of new permits issued within the jurisdiction of the regulatory authority.

NR 135.37(3) (3) The number of acres approved for nonmetallic mining and the number of acres newly approved in the previous year.

NR 135.37(4) (4) The number of acres being mined or unreclaimed acres.

NR 135.37(5) (5) The number of acres that have been reclaimed and have had financial assurance released pursuant to this subchapter.

NR 135.37(6) (6) The number of acres that are reclaimed and awaiting release from the financial assurance requirements of this subchapter.

NR 135.37(7) (7) The number and nature of alternative requirements granted, permit modifications, violations, public hearings, enforcement actions, penalties that have been assessed and bond or financial assurance forfeitures.

NR 135.37 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (intro.) and (4) Register November 2006 No. 611, eff. 12-1-06.

NR 135.38 NR 135.38 Operator reporting of completed reclamation. An operator shall file a notice of completed reclamation with the regulatory authority when the operator deems reclamation activities to be completed for a portion of the nonmetallic mine site or for the entire site. The notice of completed reclamation shall be filed as provided by the applicable reclamation ordinance.

NR 135.38 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.39 NR 135.39 Fees.

NR 135.39(1) (1) Areas subject to fees.

NR 135.39(1)(a) (a) Fees shall be assessed pursuant to this section for all unreclaimed acres of a nonmetallic mine site, as defined in s. NR 135.03 (25), except the following:

NR 135.39(1)(a)1. 1. Areas that are defined in s. NR 135.03 (16) (b) as not subject to this chapter. Fees may not be assessed on acreage where nonmetallic mining is proposed and approved but where no nonmetallic mining has yet taken place.

NR 135.39 Note Note: Fees are assessed only on active areas see definition on “unreclaimed acre” under s. NR 135.03 (25) (b).

NR 135.39(1)(a)2. 2. Areas that have been determined by the regulatory authority to qualify for fee waiver because of successful interim reclamation pursuant to s. NR 135.41.

NR 135.39(1)(b) (b) If reclamation has already occurred on portions of a nonmetallic mine site, the fees for such portions may be submitted with a request that they be held by the regulatory authority pending certification of completed reclamation pursuant to s. NR 135.40 (7). Upon such certification, the regulatory authority shall refund that portion of the annual fee applying to the reclaimed areas. If the regulatory authority fails to make a determination under s. NR 135.40 (7) (c) within 60 days of the request, the regulatory authority shall refund that portion of the annual fee that applies to the reclaimed areas.

NR 135.39(1)(c) (c) The amount collected shall equal the department’s share as described in sub. (3), the regulatory authority’s share described in sub. (4) and, if applicable, the reclamation plan review fee described in sub. (5). The department’s share of the annual fees described in sub. (3) shall be transferred to the department by March 31, for the previous year by the regulatory authority.

NR 135.39(2) (2) Collection.

NR 135.39(2)(a) (a) The regulatory authority shall collect annual fees from the operator based on the unreclaimed acreage of each nonmetallic mining site described in sub. (1). Annual fees shall be collected for the previous calendar year.

NR 135.39(2)(b) (b) Fees shall be paid to the regulatory authority on or before January 31 for the previous calendar year, unless otherwise specified by s. NR 135.18 (1) or by the regulatory authority in the applicable reclamation ordinance.

NR 135.39(2)(c) (c) The amount collected shall equal the department’s share as described in sub. (3), the regulatory authority’s share described in sub. (4) and, if applicable, the reclamation plan review fee described in sub. (5). The regulatory authority shall transfer the department’s share of the annual fees described in sub. (3) to the department by March 31.

NR 135.39(3) (3) Department share.