Chapter 295

295.12 295.12 Nonmetallic mining reclamation rules.

295.12(1) (1) Rules. The department shall establish all of the following by rule:

295.12(1)(a) (a) Uniform statewide standards for nonmetallic mining reclamation.

295.12(1)(b) (b) Provisions for the administration of this subchapter by the department.

295.12(1)(c) (c) Uniform statewide requirements and procedures for the administration of a nonmetallic mining reclamation program by any county, city, village or town.

295.12(2) (2) Standards.

295.12(2)(a) (a) The department shall establish nonmetallic mining reclamation standards under sub. (1) (a) that are applicable to activities related to nonmetallic mining reclamation both during nonmetallic mining and after the termination of nonmetallic mining.

295.12(2)(d) (d) Nonmetallic mining reclamation standards under sub. (1) (a) shall be designed to encourage the development and reclamation of nonmetallic mining sites in existence on October 14, 1997, and shall include requirements necessary to achieve a land use specified in an approved nonmetallic mining reclamation plan, including requirements related to the removal or reuse of nonmetallic mining refuse, removal of roads no longer in use, stabilization of soil conditions, grading the nonmetallic mining site, replacement of topsoil, establishment of vegetative cover, control of surface water flow and groundwater withdrawal, prevention of environmental pollution and, if practical, protection or restoration of plant, fish and wildlife habitat.

295.12(3) (3) Program requirements. The rules required by sub. (1) (c) shall include all of the following:

295.12(3)(c) (c) A requirement for the operator to submit a nonmetallic mining reclamation plan including maps, information about the nonmetallic mining site, a proposed land use for which the nonmetallic mining site will be rehabilitated after the nonmetallic mining is completed, a description of the proposed nonmetallic mining reclamation including methods and procedures to be used and a proposed timetable for completion of various stages of the nonmetallic mining reclamation. The reclamation plan shall be designed to ensure successful nonmetallic mining reclamation consistent with the standards under sub. (1) (a), to minimize the costs of nonmetallic mining reclamation and, to the extent practicable, to minimize the area disturbed by nonmetallic mining at one time and provide for nonmetallic mining reclamation of portions of the nonmetallic mining site while nonmetallic mining continues on other portions of the nonmetallic mining site.

295.12(3)(d) (d) A requirement for the operator to obtain a nonmetallic mining reclamation permit in order to engage in nonmetallic mining or in nonmetallic mining reclamation; a requirement for a permit term equal to the period during which nonmetallic mining is conducted; procedures for the issuance, modification, suspension or revocation of the reclamation permit; a requirement for public notice and an opportunity for a public informational hearing before issuance or modification of a reclamation permit for a nonmetallic mine that is not in operation before the date specified under par. (dm); notwithstanding ss. 68.001, 68.03 (8) and (9), 68.06 and 68.10 (1) (b), a right for any person who meets the requirements of s. 227.42 (1) to a contested case hearing under s. 68.11 on the issuance, modification or denial of a reclamation permit and for a person holding a reclamation permit to a contested case hearing under s. 68.11 to contest an order issued under s. 295.19 (1); a requirement for cooperative issuance of a single reclamation permit if more than one county or municipality has jurisdiction over the nonmetallic mining site; and a requirement that action approving, denying or conditionally approving a reclamation permit be taken within 90 days after receipt of the reclamation plan or, if a public informational hearing is held, within 60 days after the close of the public hearing.

295.12(3)(de) (de) Except as provided in par. (dm), a prohibition on issuance of a reclamation permit before approval of the nonmetallic mining reclamation plan under par. (c) by the county, city, village or town operating the program.

295.12(3)(dm) (dm) A requirement that, when an operator submits an application for a reclamation permit for a nonmetallic mine that is operating before a date specified by the department in the rule, the county, city, village or town issue the permit on the condition that the operator submit a nonmetallic mining reclamation plan under par. (c) that complies with the rules under par. (c) by a deadline established by the county, city, village or town. The deadline shall be from 1 to 3 years after the date of application.

295.12(3)(ds) (ds) A requirement that the county, city, village or town issue a reclamation permit on the condition that the operator submit proof of financial responsibility in accordance with par. (c) within a time specified by the rule.

295.12(3)(e) (e)

295.12(3)(e)1. 1. A provision imposing annual fees as determined by the department for the administration of s. 295.18 and imposing annual fees as determined by the county, city, village or town that shall, as closely as possible, equal the cost of all of the following:

295.12(3)(e)1.a. a. The examination and approval of nonmetallic mining reclamation plans.

295.12(3)(e)1.b. b. The inspection of nonmetallic mining reclamation.

295.12(3)(e)2. 2. A prohibition on basing the fees under subd. 1. on any portion of a nonmetallic mining site that has been reclaimed when the fees are imposed.

295.12(3)(f) (f) A requirement for an expedited review process if the applicant pays an additional fee as determined by the county, city, village or town under par. (e) or if the applicant requires a permit under this subchapter to perform services under contract with a city, village, town, county or other governmental unit.

295.12(3)(g) (g) A requirement for the operator to provide a bond, deposit of funds, established escrow account, letter of credit, demonstration of financial responsibility by meeting net worth requirements or other form of financial assurance conditioned on the faithful performance of all of the requirements of rules promulgated under this section. The rules shall authorize a county, city, village or town to reduce the amount of financial assurance that an operator is required to provide based on nonmetallic mining reclamation that the operator performs while the nonmetallic mine continues to operate.

295.12(3)(h) (h) Provisions to restrict, regulate or require certain activities in connection with nonmetallic mining reclamation in order to ensure compliance with nonmetallic mining reclamation standards, nonmetallic mining reclamation plans, financial assurance requirements and other requirements of the rules promulgated under this section.

295.12(3)(i) (i) A prohibition on nonmetallic mining if a proposed nonmetallic mining site cannot be reclaimed in compliance with the nonmetallic mining reclamation standards under sub. (1) (a).

295.12(3)(k) (k) A provision for orders and penalties consistent with s. 295.19.

295.12(3)(L) (L) Criteria and procedures for approving alternatives to the requirements of the nonmetallic mining reclamation standards under sub. (1) (a).

295.12 History History: 1995 a. 227 s. 802; 1997 a. 27.

295.12 Cross-reference Cross-reference: See also ch. NR 135, Wis. adm. code.

295.13 295.13 Mandatory enactment and administration of ordinance by counties.

295.13(1) (1) Mandatory enactment and administration of ordinance.

295.13(1)(a) (a) Requirement to enact and administer ordinance. Within 6 months after the effective date of the rules under s. 295.12 (1), each county shall enact and begin to administer a nonmetallic mining reclamation ordinance that complies with those rules, except as provided in subs. (2) and (2m). This ordinance may be enacted separately from an ordinance enacted under s. 59.69.

295.13(2) (2) Preexisting county ordinances. Any county with a nonmetallic mining reclamation ordinance in effect on June 1, 1993, may maintain and administer that ordinance if the department reviews the existing ordinance and determines that it is at least as restrictive as the rules under s. 295.12 (1). If the department determines that any part of the existing ordinance is not as restrictive as the rules under s. 295.12 (1), the county may amend the ordinance and submit the amended ordinance to the department for a determination of whether the amended ordinance is as restrictive as those rules. After obtaining the determination of the department that an ordinance is as restrictive as the rules under s. 295.12 (1), the county may not amend the ordinance to make it more restrictive. A county may not amend a nonmetallic mining reclamation ordinance to make it less restrictive than the requirements in the rules under s. 295.12 (1).

295.13(2m) (2m) Option for certain counties. In a county with a population of 700,000 or more, if every city, village and town that contains a nonmetallic mining site has enacted an ordinance under s. 295.14 by the first day of the 4th month beginning after the effective date of the rules promulgated under s. 295.12 (1), the county is not required to enact an ordinance under this section.

295.13(3) (3) Applicability of county ordinance. An ordinance under sub. (1) or (2) applies to the entire area of the county, except for cities, villages and towns that enact and administer a nonmetallic mining reclamation ordinance under s. 295.14.

295.13(4) (4) Crediting of financial assurance. If a nonmetallic mining site is subject to a county ordinance under sub. (1) or (2) and the city, village, or town in which a nonmetallic mining site is located required the operator of the mining site to provide financial assurance for nonmetallic mining reclamation of the nonmetallic mining site, the county shall credit the value of the financial assurance provided to the city, village, or town against the amount of financial assurance that the operator is required to provide under the county ordinance.

295.13 History History: 1995 a. 227 s. 803; 1997 a. 27, 35; 2003 a. 308.

295.14 295.14 Authority to enact and administer ordinance.

295.14(1) (1) Authority to enact and administer ordinance. A city, village or town may enact and administer a nonmetallic mining reclamation ordinance, that complies with the rules under s. 295.12 (1). Except as provided in sub. (2), a city, village or town may not administer a nonmetallic mining reclamation ordinance that does not comply with the rules under s. 295.12 (1).

295.14(2) (2) Preexisting municipal ordinances. A city, village or town with a nonmetallic mining reclamation ordinance in effect on June 1, 1993, may maintain and administer that ordinance if the department reviews the existing ordinance and determines that it is at least as restrictive as the rules under s. 295.12 (1). If the department determines that any part of the existing ordinance is not as restrictive as the rules under s. 295.12 (1), the city, village or town may amend the ordinance and submit the amended ordinance to the department for a determination of whether the amended ordinance is as restrictive as those rules. After obtaining the determination of the department that an ordinance is as restrictive as the rules under s. 295.12 (1), the city, village or town may not amend the ordinance to make it more restrictive. A city, village or town may not amend a nonmetallic mining reclamation ordinance to make it less restrictive than the rules under s. 295.12 (1).

295.14 History History: 1995 a. 227 s. 804; 1997 a. 27.

295.15 295.15 Fees. A county or a city, village or town with a nonmetallic mining reclamation ordinance shall collect the fee established under s. 295.12 (3) (e) and shall forward the state’s portion of the fee to the department within 90 days after collecting the fee. A county or a city, village or town with a nonmetallic mining reclamation ordinance shall use the revenues from its portion of the fees only for the administration of the nonmetallic mining reclamation ordinance.

295.15 History History: 1995 a. 227 s. 805.

295.16 295.16 Applicability of nonmetallic mining reclamation requirements.

295.16(1) (1) Nonmetallic mining for transportation purposes.

295.16(1)(a) (a) Notwithstanding par. (b), any requirements of the department of transportation concerning the restoration of a nonmetallic mining site shall be consistent with the nonmetallic mining reclamation standards established under s. 295.12 (1) (a).

295.16(1)(b) (b) A nonmetallic mining ordinance and the rules promulgated under s. 295.12 (1) do not apply to nonmetallic mining to obtain stone, soil, sand or gravel for the construction, maintenance or repair of a highway, railroad, airport facility or any other transportation facility, if the nonmetallic mining is subject to the requirements of the department of transportation concerning the restoration of the nonmetallic mining site.

295.16(1)(c) (c) The requirements for a nonmetallic mining reclamation plan under s. 295.12 (3) (c), for public notice and an opportunity for a public informational hearing under s. 295.12 (3) (d) and for proof of financial responsibility under s. 295.12 (3) (ds) do not apply to nonmetallic mining to obtain stone, soil, sand or gravel for the construction, maintenance or repair of a highway, railroad, airport facility, or any other transportation facility, conducted under contract with a municipality, as defined in s. 299.01 (8), if the contract requires the nonmetallic mining site to be reclaimed in accordance with the requirements of the department of transportation concerning the restoration of nonmetallic mining sites.

295.16(2) (2) Nonmetallic mining in or near navigable waterways. A nonmetallic mining reclamation ordinance, and requirements of this subchapter other than the standards established under s. 295.12 (1) (a), do not apply to any nonmetallic mining site or portion of a nonmetallic mining site that is subject to permit and reclamation requirements of the department under ss. 30.19, 30.195, 30.20, 30.30 and 30.31. The nonmetallic mining standards established under s. 295.12 (1) (a) do apply to a nonmetallic mining site that is subject to permit and reclamation requirements of the department under ss. 30.19, 30.195, 30.20, 30.30 and 30.31.

295.16(3) (3) Public nonmetallic mining.

295.16(3)(a) (a) The standards established under s. 295.12 (1) (a) and, except as provided in par. (b), a nonmetallic mining reclamation ordinance apply to nonmetallic mining conducted by or on behalf of the state or a municipality. Notwithstanding s. 13.48 (13), nonmetallic mining operated for the benefit or use of the state or any state agency, board, commission or department shall comply with the permit requirements and nonmetallic mining reclamation standards of any applicable nonmetallic mining reclamation ordinance.

295.16(3)(b) (b) The financial assurance requirements of a nonmetallic mining reclamation ordinance do not apply to nonmetallic mining conducted by the state or a municipality.

295.16(4) (4) Exempt activities. A nonmetallic mining reclamation ordinance and the standards established under s. 295.12 (1) (a) do not apply to the following activities:

295.16(4)(a) (a) Excavations or grading by a person solely for domestic or farm use at his or her residence or farm.

295.16(4)(b) (b) Excavations or grading conducted for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or any other transportation facility if the excavation or grading is within the property boundaries of the transportation facility.

295.16(4)(c) (c) Grading conducted for preparing a construction site or restoring land following a flood or natural disaster.

295.16(4)(d) (d) Excavations for building construction purposes.

295.16(4)(e) (e) Nonmetallic mining sites of less than one acre.

295.16(4)(f) (f) Any mining operation, the reclamation of which is required in a permit obtained under ch. 293 or subch. III of ch. 295.

295.16(4)(g) (g) Any activities required to prepare, operate or close a solid waste disposal facility under subchs. II to IV of ch. 289 or a hazardous waste disposal facility under ch. 291 that are conducted on the property on which the facility is located, but a nonmetallic mining reclamation ordinance and the standards established under s. 295.12 (1) (a) apply to activities related to solid waste or hazardous waste disposal that are conducted at a nonmetallic mining site that is not on the property on which the solid waste or hazardous waste disposal facility is located such as activities to obtain nonmetallic minerals to be used for lining, capping, covering or constructing berms, dikes or roads.

295.16(4)(i) (i) Dredging for navigational purposes, to construct or maintain farm drainage ditches and for the remediation of environmental contamination and the disposal of spoils from that dredging.

295.16(4)(j) (j) Removal of material from the bed of Lake Michigan or Lake Superior by a public utility pursuant to a permit under s. 30.21.

295.16 History History: 1995 a. 227 s. 806; 1997 a. 27; 1999 a. 9; 2013 a. 1.

295.17 295.17 Inspection.

295.17(1) (1) An agent of a county, city, village or town that has a nonmetallic mining reclamation ordinance that complies with s. 295.13 or 295.14 may enter a nonmetallic mining site in the performance of his or her official duties at any reasonable time in order to inspect those premises and to ascertain compliance with this subchapter. No person may refuse entry or access to an agent of the county, city, village or town who requests entry for purposes of inspection, and who presents appropriate credentials. No person may obstruct, hamper or interfere with the inspection. The county, city, village or town shall furnish to the operator any report prepared by the county, city, village or town regarding the inspection.

295.17(2) (2) Any duly authorized officer, employee or representative of the department may enter and inspect any property, premises or place on or at which any nonmetallic mining operation 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. 281, 285, 289 to 293 and 299 and rules adopted pursuant thereto. No person may refuse entry or access to any such 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. The department shall furnish to the nonmetallic mining site operator a written report setting forth all observations, relevant information and data which relate to compliance status.

295.17 History History: 1995 a. 227 s. 808, 995; 1997 a. 27.

295.18 295.18 Department review.

295.18(1) (1) Review. The department shall periodically review the nonmetallic mining reclamation program under this subchapter of each county and each city, village or town that exercises jurisdiction under this subchapter to ascertain compliance with this subchapter and the rules promulgated under this subchapter. This review shall include all of the following:

295.18(1)(a) (a) A performance audit of the nonmetallic mining reclamation program of the county, city, village or town.

295.18(1)(b) (b) Verification, by on-site inspections, of county, city, village or town compliance with this subchapter and rules promulgated under this subchapter.

295.18(1)(c) (c) A written determination by the department, issued at least once every 10 years, of whether the county, city, village or town is in compliance with this subchapter and rules promulgated under this subchapter.

295.18(2) (2) Noncompliance; hearing. If the department determines under sub. (1) that a county, city, village or town is not in compliance with this subchapter and rules promulgated under this subchapter, the department shall notify the county, city, village or town of that determination. If the department decides to pursue the matter, it shall conduct a hearing, after 30 days’ notice, in the county, city, village or town. As soon as practicable after the hearing, the department shall issue a written decision regarding compliance with this subchapter and rules promulgated under this subchapter.

295.18(3) (3) Municipal noncompliance; consequences. If the department determines under sub. (2) that a city, village or town is not in compliance with this subchapter and rules promulgated under this subchapter, the city, village or town may not administer the nonmetallic mining reclamation program. The county nonmetallic mining reclamation ordinance applies to that city, village or town and the county shall administer the nonmetallic mining reclamation program in that city, village or town. The city, village or town may apply to the department to resume its authority to administer the nonmetallic mining reclamation program, but not sooner than 3 years after the department issues a decision under sub. (2). The department, after a hearing, may approve the city, village or town request to administer the nonmetallic mining reclamation program if the city, village or town demonstrates the capacity to comply with this subchapter and rules promulgated under this subchapter.

295.18(4) (4) County noncompliance; consequences. If the department issues a written decision under sub. (2) that a county is not in compliance with this subchapter and rules promulgated under this subchapter, the department shall administer the nonmetallic mining reclamation program in that county, including the collection of fees, review and approval of plans, inspection of nonmetallic mining sites and enforcement, except that the department may not administer the nonmetallic mining reclamation program in a city, village or town that enacted an ordinance that complies with s. 295.14 before the department made its determination under sub. (2) and is administering that ordinance. The county may apply to the department at any time to resume administration of the nonmetallic mining reclamation program. The department, after a hearing, may approve the county request to administer the nonmetallic mining reclamation program if the county demonstrates the capacity to comply with this subchapter and rules promulgated under this subchapter. No city, village or town may enact an ordinance for and begin to implement a nonmetallic mining reclamation program during the time that the department administers the nonmetallic mining reclamation program in the county in which the city, village or town is located.

295.18 History History: 1995 a. 227 s. 809; 1997 a. 27.

295.19 295.19 Enforcement; remedies; penalties.

295.19(1) (1) Orders; enforcement. The governing body of a county, city, village or town that has a nonmetallic mining reclamation ordinance that complies with s. 295.13 or 295.14, or an agent designated by that governing body, may do any of the following:

295.19(1)(a) (a) Issue an order requiring an operator to comply with, or to cease violating, this subchapter, rules promulgated under this subchapter, the nonmetallic mining reclamation ordinance, a nonmetallic mining reclamation permit or an approved nonmetallic mining reclamation plan.

295.19(1)(b) (b) Issue an order suspending or revoking a nonmetallic mining reclamation permit as authorized in the nonmetallic mining reclamation ordinance.

295.19(1)(c) (c) Issue an order directing an operator to immediately cease an activity regulated under this subchapter, under rules promulgated under this subchapter or under the nonmetallic mining reclamation ordinance until the necessary nonmetallic mining reclamation plan approval is obtained.

295.19(1)(d) (d) Submit orders to abate violations of the nonmetallic mining reclamation ordinance to the district attorney, the corporation counsel, the municipal attorney or the attorney general for enforcement. The district attorney, the corporation counsel, the municipal attorney or the attorney general may enforce those orders.

295.19(2) (2) Department orders. The department may issue an order directing the immediate cessation of an activity regulated under this subchapter until the nonmetallic mining site complies with the nonmetallic mining reclamation standards established under s. 295.12 (1) (a).

295.19(3) (3) Penalties.

295.19(3)(a) (a) Any person who violates the rules promulgated under s. 295.12 (1) (a) or an order issued under sub. (2) may be required 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 subchapter is suspended, stayed or enjoined, this penalty does not accrue.

295.19(3)(b) (b)

295.19(3)(b)1. 1. Except for the violations enumerated in par. (a), any person who violates this subchapter or any rule promulgated or any plan approval order issued under this subchapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed or enjoined, this penalty does not accrue.

295.19(3)(b)2. 2. In addition to the penalties provided under subd. 1., the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this subdivision. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

295.19 History History: 1995 a. 227 s. 810, 995; 1997 a. 27; 2001 a. 109; 2003 a. 309.

295.20 295.20 Preservation of marketable nonmetallic mineral deposits.

295.20(1) (1) Registration.