NR 135.35 NR 135.35Model 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 135.36Operator 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 135.37Regulatory 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 135.38Operator 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 135.39Fees.
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.
NR 135.39(3)(a) (a) The department's statewide share of the annual fees collected pursuant to this section shall be equal to the department's statewide cost to inspect, enforce, consult with and audit the regulatory authority under this chapter, unless the department is the regulatory authority and collects a fee under sub. (4) (c). If the department is the regulatory authority, the fee in Table 1 may not be collected.
NR 135.39(3)(b) (b) The department's share of the annual fee under this subsection submitted to a regulatory authority shall be assessed based on unreclaimed acreage as specified in Table 1.
NR 135.39 Note Note: The fees in Table 2 include the department's statewide costs, as well as the department's estimated expenses as the regulatory authority. - See PDF for table PDF - See PDF for table PDF
NR 135.39(4) (4)Regulatory authority's share.
NR 135.39(4)(a) (a) The fee under this subsection shall be collected as established in the regulatory authority's applicable reclamation ordinance.
NR 135.39(4)(b) (b) The regulatory authority's share of the annual fees shall as closely as possible equal its expenses to administer its reclamation program, including but not limited to, the examination and approval of nonmetallic mining reclamation plans and its costs of ensuring compliance with this chapter, inspecting the reclamation of nonmetallic mining sites and administering their nonmetallic mining reclamation program. These costs shall be limited as follows:
NR 135.39(4)(b)1. 1. Fees collected by the regulatory authority under this section shall be used only for reasonable expenses associated with the administration of this chapter.
NR 135.39(4)(b)2. 2. If a county or municipal regulatory authority's fees are greater than those established in par. (c), the county or municipality shall make available for public inspection written documentation of its estimated program costs and the need for fees exceeding those in par. (c) prior to adopting them.
NR 135.39(4)(c) (c) If the department is the regulatory authority, the department shall collect a fee based on unreclaimed acreage in Table 2. - See PDF for table PDF - See PDF for table PDF
NR 135.39(4)(d) (d) If the department collects a fee under this subsection, it may not collect a fee for its statewide costs under sub. (3).
NR 135.39(5) (5)Reclamation plan review fee.
NR 135.39(5)(a) (a) The regulatory authority may establish a reclamation plan review fee in its applicable reclamation ordinance that may be collected in addition to any annual fee collected pursuant to subs. (3) and (4).
NR 135.39(5)(b) (b) If the department is the regulatory authority, the reclamation plan review fee for reclamation plans submitted for review shall be as in Table 3. - See PDF for table PDF - See PDF for table PDF
NR 135.39(6) (6)Reduction of annual fees for certain mines.
NR 135.39(6)(a)(a) A regulatory authority, as part of its applicable reclamation ordinance, may establish reduced annual fees for nonmetallic mines in which nonmetallic mining has not taken place in the previous calendar year.
NR 135.39(6)(b) (b) The department's share pursuant to sub. (3) of fees for nonmetallic mines in which no nonmetallic mining has taken place during a calendar year shall be $15.
NR 135.39(6)(c) (c) If the department is the regulatory authority, its fee under sub. (4) (c) for mines in which mining has not taken place in the previous calendar year shall be $100.
NR 135.39(7) (7)Report to natural resources board. Within 36 months after December 1, 2000, and within each 5-year period thereafter, the department shall submit to the natural resources board a report on whether the nonmetallic mining reclamation revenue, expenditures and fees established by this section and by other regulatory authorities are reasonable. The report shall be prepared in consultation with the nonmetallic mining advisory committee established under s. NR 135.51.
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 135.40Financial 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.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.