Chapter NR 135

NR 135.39 Note Note: The department intends to continue to consult and seek the advice of representatives of persons affected by the fees established by the department and other regulatory authorities for the purpose of preparing the report to the natural resources board required by this subsection.

NR 135.39 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (1) (a) 1., (2) to (5) and (7), r. (1) (b), renum. (1) (c) to be (1) (b), cr. (1) (c) Register November 2006 No. 611, eff. 12-1-06.

NR 135.40 NR 135.40 Financial assurance.

NR 135.40(1) (1) Notification. The regulatory authority shall provide written notification to the operator of the amount of financial assurance required under sub. (3).

NR 135.40(2) (2) Filing. Following approval of the nonmetallic reclamation permit, and as a condition of the permit, the operator shall file a financial assurance with the regulatory authority. The financial assurance shall provide that the operator shall faithfully perform all requirements in this chapter, an applicable reclamation ordinance and the reclamation plan. Financial assurance shall be payable exclusively to the regulatory authority that has jurisdiction and who issues the approval for the reclamation plan. In cases where the regulatory authority changes from one jurisdiction to another all financial assurance shall be made payable to the regulatory authority that currently has primary regulatory responsibility in that jurisdiction.

NR 135.40(3) (3) Amount and duration of financial assurance. The amount of financial assurance shall equal as closely as possible the cost to the regulatory authority of hiring a contractor to complete either final reclamation or progressive reclamation according to the approved reclamation plan. The amount of financial assurance shall be reviewed periodically by the regulatory authority to assure it equals outstanding reclamation costs. Any financial assurance filed with the regulatory authority shall be in an amount equal to the estimated cost to the regulatory authority for reclaiming all sites the operator has under project permits. The regulatory authority may accept a lesser initial amount of financial assurance provided that the permittee initiates a process to continuously increase the amount of financial assurance until it is adequate to effect reclamation. An escrow account may be established that is based on production gross sales and serves to provide regular payments to an account that is designed to grow to the amount necessary to guarantee performance of reclamation by the expected time of final reclamation. The period of the financial assurance is dictated by the period of time required to establish the post mining land use declared and approved of in the mine reclamation plan. This may extend beyond the permit if required to accomplish successful and complete implementation of the reclamation plan.

NR 135.40(4) (4) Form and management. Financial assurance shall be provided by the operator and shall be by a bond or an alternate financial assurance. Financial assurance shall be payable to the regulatory authority and released upon successful completion of the reclamation measures specified in the reclamation plan. Alternate financial assurances may include, but are not limited to cash, certificates of deposits, irrevocable letters of credit, irrevocable trusts, established escrow accounts, demonstration of financial responsibility by meeting net worth requirements, or government securities. Any interest from the financial assurance shall be paid to the operator. Certificates of deposit shall be automatically renewable or other assurances shall be provided before the maturity date. Financial assurance arrangements may include, at the discretion of the regulatory authority, a blend of different options for financial assurance including a lien on the property on which the nonmetallic mining site occurs or a combination of financial assurance methods.

NR 135.40(5) (5) Multiple projects. Any operator who obtains a permit from the regulatory authority for 2 or more nonmetallic mining sites may elect, at the time the second or subsequent site is approved, to post a single financial assurance in lieu of separate financial assurance instruments for each nonmetallic mining site. When an operator elects to post a single financial assurance in lieu of separate financial assurances for each mining site, no financial assurances previously posted on individual mining sites shall be released until the new financial assurance has been accepted by the regulatory authority.

NR 135.40(6) (6) Multiple jurisdictions. In cases where more than one regulatory authority has jurisdiction, a cooperative financial security arrangement may be developed and implemented by the regulatory authorities to avoid requiring the permittee needing to prove financial assurance with more than one regulatory authority for the same nonmetallic mining site. Financial assurance is required for each site and 2 or more sites of less than one acre by the same operator, except that governmental units are not required to obtain financial assurance.

NR 135.40(7) (7) Certification of completion and release.

NR 135.40(7)(a) (a) The operator shall notify the regulatory authority, by filing a notice of completion, at the time that he or she determines that reclamation of any portion of the mining site or the entire site is complete. The regulatory authority shall inspect the mine site or portion thereof that was the subject of the notice of completion to determine if reclamation has been carried out in accordance with the approved reclamation plan. The regulatory authority may partially release the financial assurance if it determines that compliance with a portion of the reclamation plan has been achieved and requires no waiting period. After determining that reclamation is complete, the regulatory authority shall issue a certificate of completion and shall release the financial assurance.

NR 135.40(7)(b) (b) The regulatory authority shall make a determination of whether or not the certification in par. (a) can be made within 60 days that the request is received.

NR 135.40(7)(c) (c) A regulatory authority may make a determination under this subsection that:

NR 135.40(7)(c)1. 1. Reclamation is not yet complete;

NR 135.40(7)(c)2. 2. It is not possible to assess whether reclamation is complete due to weather conditions, snow cover or other relevant factors;

NR 135.40(7)(c)3. 3. Reclamation is complete in a part of the mine; or

NR 135.40(7)(c)4. 4. Reclamation is fully complete.

NR 135.40(8) (8) Forfeiture. Financial assurance shall be forfeited if any of the following occur:

NR 135.40(8)(a) (a) A permit is revoked under s. NR 135.25 and the appeals process has been completed.

NR 135.40(8)(b) (b) An operator ceases mining operations and fails to reclaim the site in accordance with the reclamation plan.

NR 135.40(9) (9) Cancellation. Financial assurance shall provide that it may not be cancelled by the surety or other holder or issuer except after not less than a 90-day notice to the regulatory authority 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 regulatory authority a replacement proof of financial assurance. In the absence of this replacement financial assurance, all mining shall cease until the time it is delivered and in effect.

NR 135.40(10) (10) Changing methods of financial assurance. The operator of a nonmetallic mining site may change from one method of financial assurance to another. This may not be done more than once a year unless required by an adjustment imposed pursuant to sub. (12). The operator shall give the regulatory authority at least 60 days’ notice prior to changing methods of financial assurance and may not actually change methods without the written approval of the regulatory authority.

NR 135.40(11) (11) Bankruptcy notification. The operator of a nonmetallic mining site shall notify the regulatory authority by certified mail of the commencement of voluntary or involuntary proceeding under bankruptcy code, 11 USC, et seq., naming the operator as debtor, within 10 days of commencement of the proceeding.

NR 135.40(12) (12) Adjustment of financial assurance. Financial assurance may be adjusted when required by the regulatory authority. The regulatory authority may notify the operator in writing that adjustment is necessary and the reasons for it. The regulatory authority may adjust financial assurance based upon prevailing or projected interest or inflation rates, or the latest cost estimates for reclamation.

NR 135.40(13) (13) Net worth test.

NR 135.40(13)(a) (a) Only an operator that meets the definition of “company” in s. 289.41 (1) (b), Stats., may use the net worth method of providing financial assurance.

NR 135.40(13)(b) (b) The operator shall submit information to the regulatory authority in satisfaction of the net worth test requirements of s. 289.41 (4), Stats. The criteria in s. 289.41 (6) (b), (d), (e), (f), (g), (h) and (i), Stats., shall apply.

NR 135.40(13)(c) (c) An operator using the net worth test to provide financial assurance for more than one mine shall use the total cost of compliance for all mines in determining the net worth to reclamation cost ratio in accordance with s. 289.41 (6), Stats.

NR 135.40(13)(d) (d) The department determinations under the net worth test shall be done in accordance with s. 289.41 (5), Stats.

NR 135.40(13)(e) (e) In addition, the operator shall submit a legally binding commitment to faithfully perform all compliance and reclamation work at the mine site that is required under an applicable nonmetallic mining reclamation ordinance.

NR 135.40 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.41 NR 135.41 Interim reclamation waiver. If the regulatory authority determines that areas within a mining site have been successfully reclaimed on an interim basis in accordance with the reclamation plan, the regulatory authority:

NR 135.41(1) (1) Shall waive annual acreage fees for those areas, and

NR 135.41(2) (2) May reduce or waive financial assurance requirements for those areas.

NR 135.41 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.42 NR 135.42 Regulatory authority right of inspection.

NR 135.42(1) (1) No person may refuse entry or access onto a nonmetallic mining site of a duly authorized officer, employee or agent of the regulatory authority or the department who presents appropriate credentials to inspect the site for compliance with the nonmetallic mining reclamation permit, the applicable reclamation ordinance, this chapter or ch. 295, subch. I, Stats. Any person who enters the site under this right of inspection shall obtain training and provide their own safety equipment needed to comply with any federal, state or local laws or regulations controlling persons on the nonmetallic mining site.

NR 135.42(2) (2) If requested, the department shall furnish to the operator a written report of its inspection under this section, setting forth all relevant observations, information and data which relate to the site’s compliance status under this chapter and ch. 295, subch. I, Stats.

NR 135.42 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.43 NR 135.43 Enforcement, orders, penalties.

NR 135.43(1) (1) Local orders and enforcement. The regulatory authority that administers a nonmetallic mining reclamation ordinance, or an agent designated by that governing body, may do any of the following:

NR 135.43(1)(a) (a) Issue an order, requiring an operator to either comply with provisions of or cease violations of ch. 295, subch. I, Stats., this chapter, an applicable reclamation ordinance, a nonmetallic mining reclamation permit, permit conditions or an approved mining reclamation plan.

NR 135.43(1)(b) (b) Issue a special order suspending or revoking a nonmetallic mining reclamation permit under s. NR 135.25, or directing an operator to immediately cease an activity regulated under this chapter or under an applicable reclamation ordinance until the necessary plan approval is obtained.

NR 135.43(1)(c) (c) Submit an order to abate violations of the nonmetallic mining reclamation ordinance to a district attorney, corporation counsel, municipal attorney or the attorney general for enforcement. The district attorney, corporation counsel, municipal attorney or the attorney general may enforce those orders.

NR 135.43(2) (2) Right of review. A person holding a reclamation permit who is subject to an order pursuant to sub. (1) shall have the right to review the order in a contested case hearing under s. 68.11, Stats., notwithstanding the provisions of ss. 68.001, 68.03 (8) and (9), 68.06 and 68.10 (1) (b), Stats.

NR 135.43(3) (3) Department orders.

NR 135.43(3)(a) (a) If the department is the regulatory authority, it may issue an order as provided in sub. (1).

NR 135.43(3)(b) (b) In addition to orders issued under sub. (1), the department may issue a special order directing the immediate cessation of an activity regulated under this section until the nonmetallic mining site complies with the nonmetallic mining reclamation standards established under subch. II.

NR 135.43(3)(c) (c) A person holding a reclamation permit who is subject to an order issued under this subsection shall have the right to review the order in a contested case under s. 227.42, Stats.

NR 135.43(4) (4) Penalties.

NR 135.43(4)(a) (a) Any person who violates this chapter or an order issued under sub. (1) or (3) may be required by the regulatory authority to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense. While an order issued under this section is suspended, stayed or enjoined, this penalty does not accrue. The cost of enforcement incurred by the regulatory authority shall be considered in establishing these forfeitures.

NR 135.43(4)(b) (b) Except for the violations referred to in par. (a), any person who violates ch. 295, subch. I, Stats., this chapter, any reclamation plan approved pursuant to this chapter or an order issued under sub. (1) or (3) shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of violation is a separate offense. While an order issued under this section is suspended, stayed or enjoined, this penalty does not accrue.

NR 135.43 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

subch. V of ch. NR 135 Subchapter V — Department Oversight and Assistance

NR 135.44 NR 135.44 Department review of pre-existing ordinances.

NR 135.44(1) (1) Any county or municipality that intends to enforce a nonmetallic mining reclamation ordinance that was in effect before June 1, 1993 shall submit a copy of the ordinance to the department.

NR 135.44(2) (2) If the department finds that any part of the submitted reclamation ordinance is not at least as restrictive as the requirements of this chapter, or is not adequate to effect the purposes of ch. 295, subch. I, Stats., and meet the requirements of this chapter, it shall communicate this finding and the basis for it to the county or municipality in writing. The county or municipality may amend its reclamation ordinance and submit the amended ordinance to the department for a determination under this subsection of whether the amended ordinance is at least as restrictive as the requirements of this chapter. The county or municipality may continue administering its reclamation ordinance while working to amend the ordinance to comply with this chapter. Where amendment is necessary pursuant to this subsection, the county or municipality shall submit a copy of the amended reclamation ordinance as enacted to the department.

NR 135.44 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.45 NR 135.45 Department review of new ordinances.

NR 135.45(1) (1) A county or municipality which proposes to adopt a nonmetallic mining reclamation ordinance in accordance with this chapter shall submit the proposed ordinance to the department for review and a determination of compliance at least 45 days prior to its adoption. The county or municipality may submit a description of its proposed nonmetallic mining program to the department for technical advice.

NR 135.45(2) (2) The department shall determine whether the ordinance will comply with this chapter.

NR 135.45(3) (3) Within 30 days of receipt of a proposed ordinance under this section, the department shall advise the county or municipality of its determination under sub. (2).

NR 135.45(4) (4) Before the governing body of a county or municipality adopts a proposed ordinance, it shall obtain a determination of compliance from the department under this section.

NR 135.45(5) (5) Upon enactment, the county or municipality shall submit a final copy of the ordinance to the department.

NR 135.45 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.46 NR 135.46 Amendment of ordinances. A county or municipality may not amend its nonmetallic mining reclamation ordinance in a manner which makes it more or less restrictive than this chapter. The county or municipality shall submit a copy of an amended ordinance to the department.

NR 135.46 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.47 NR 135.47 Department audits.

NR 135.47(1) (1) The department shall periodically review the nonmetallic mining program of each regulatory authority to determine if the program is being conducted in compliance with this chapter, and is effective and consistent in ensuring operator compliance with the statewide uniform reclamation standards contained in this chapter.

NR 135.47(2) (2) The program review shall include a performance audit and on-site inspections of mining operations within the jurisdiction.

NR 135.47(3) (3) During the performance audit, the department may evaluate the regulatory authority with respect to all of the following:

NR 135.47(3)(a) (a) Compliance with the county or municipal regulatory authority’s nonmetallic mining reclamation ordinance and the standards in this chapter.

NR 135.47(3)(b) (b) The procedures employed by the regulatory authority regarding reclamation plan review, and the issuance and modification of permits.

NR 135.47(3)(c) (c) The methods for review of annual reports received from operators.

NR 135.47(3)(d) (d) The method and effectiveness of fee collection.

NR 135.47(3)(e) (e) Procedures to accurately forward the department’s portion of collected fees in a timely fashion.

NR 135.47(3)(f) (f) Methods for conducting on-site compliance inspections and attendant reports, records and enforcement actions.

NR 135.47(3)(g) (g) Responses to citizen complaints.

NR 135.47(3)(h) (h) The method of and accuracy in determining the amount of the financial assurance obtained from the operator to guarantee reclamation performance.

NR 135.47(3)(i) (i) The maintenance and availability of records.

NR 135.47(3)(j) (j) The number and type of approvals for alternative requirements issued pursuant to this chapter.

NR 135.47(3)(k) (k) The method of determining the success of reclamation in meeting the criteria contained in the reclamation plan and subsequently releasing the financial assurance pursuant to s. NR 135.40 (7).

NR 135.47(3)(L) (L) Any changes in local regulations, ordinances, funding and staffing mechanisms or any other factor which might affect the ability of the regulatory authority to implement its nonmetallic mining reclamation program.

NR 135.47(3)(m) (m) The amount of fees collected in comparison to the amount of money actually expended for nonmetallic mining reclamation program administration.

NR 135.47(3)(n) (n) Any other performance criterion that the department may deem necessary to ascertain compliance with this chapter.

NR 135.47(4) (4) The department shall issue a written determination to the audited regulatory authority not less than every 10 years within 90 days of its audit, of whether or not the reclamation program administered by the regulatory authority is in compliance with the provisions of this chapter.

NR 135.47(5) (5) If the department finds and states, within 90 days of its audit, in its written determination that the regulatory authority is not in compliance with this chapter, the department shall give the regulatory authority adequate opportunity to correct deficiencies and respond to the department’s comments.

NR 135.47(6) (6) Following a preliminary determination that a nonmetallic mining reclamation program administered by a county or municipal government regulatory authority is not achieving compliance with this chapter, the department shall consult with the nonmetallic mining advisory committee.

NR 135.47 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (3) (a) and (6) Register November 2006 No. 611, eff. 12-1-06.