NR 132.085 NR 132.085 Irrevocable trust agreement.
NR 132.085(1) (1) This section applies to a nonferrous metallic mining permit application for which the permit has not been issued on February 1, 2000. Notwithstanding s. NR 132.19, no exemption may be granted to the provisions of this section.
NR 132.085(2) (2) An applicant for a mining permit, as part of the permit application, shall propose an irrevocable trust agreement or arrangement which shall include a description of the investment strategy and detailed information concerning the level of funding and proposed payment schedule necessary to comply with this section.
NR 132.085(3)(a)(a) The purpose of the trust fund shall be to assure adequate funds to undertake the preventive and remedial activities listed in sub. (4). The trust documentation shall designate the department as sole beneficiary. The trustee shall be a public entity, bank or other financial institution located within the state of Wisconsin which has the authority to act as a trustee, or in the case of a public entity has equivalent powers. The trust documentation shall specify the manner of payment into the fund and the trustee's powers to invest the trust corpus and income. The trustee shall exercise prudent investment strategies consistent with the purpose of the trust fund. All income shall accumulate in the account and be reinvested. No withdrawal may be made from the trust fund except as authorized in writing by the department.
NR 132.085(3)(b) (b) Following issuance of a certificate of completion of reclamation for the entire mining site or upon permit revocation, the trust corpus shall consist of cash, certificates of deposit, or U.S. government securities. A total of no more than $100,000 in cash and certificates of deposit may be placed in the trust account; U.S. government securities shall be used for amounts in excess of $100,000.
NR 132.085(4) (4) The trust fund shall be created and maintained in perpetuity with funds adequate for the following activities:
NR 132.085(4)(a) (a) Remedial action required as the result of spills of hazardous substances, as defined in s. 292.01 (5), Stats., at the mining site.
NR 132.085(4)(b) (b) Remedial action to mitigate any hazardous substances that escape from the mine workings into the surrounding environment after the mining operation has ceased.
NR 132.085(4)(c) (c) Remedial action required as the result of failure of a mining waste facility to contain the waste.
NR 132.085(4)(d) (d) Provision of a replacement water supply as required under s. 293.65 (4) (d), Stats.
NR 132.085(4)(e) (e) Preventive measures taken to avoid adverse environmental consequences, including measures such as replacement of components of waste disposal facilities. However, if the measures relate to closure or long-term care, financial responsibility for the associated costs shall be covered in accordance with ss. NR 182.16 and 182.17, respectively.
NR 132.085(5) (5) Funding of the trust fund shall be determined at the hearing conducted under s. 293.43, Stats., and shall be incorporated into the mining permit issued under s. 293.49, Stats., as follows:
NR 132.085(5)(a) (a) A schedule of payment into the trust fund, during mining operations, shall be established which takes into account a reasonable projection of exposure. Preventive or remedial measures which could be needed early in the mining operation shall be fully funded prior to the commencement of mining. Those preventive or remedial measures which could be needed only later in the operation, or after mining has ceased, may rely on income from the trust and periodic payments into the principal by the permittee.
NR 132.085(5)(b) (b) In establishing the level of funding, the department shall evaluate the likelihood of the need for preventive or remedial measures based on reasonable and conservative risk considerations. In addition to the risk considerations, the department shall evaluate the range of costs of the preventive and remedial measures that might be necessary in response to the risks. The level of funding shall be sufficient to cover the costs of all preventive and remedial measures needed to correct all reasonably possible occurrences. Costs for worst case preventive or remedial measures shall be used when the measures are shown to have a reasonable possibility of being necessary. Opportunity shall be provided at the hearing conducted under s. 293.43, Stats., for testimony that the worst case preventive or remedial measures have a reasonable possibility of being necessary.
NR 132.085(5)(c) (c) In determining costs associated with the preventive or remedial measures identified in sub. (4), consideration shall be given to the risk assessment submitted pursuant to s. NR 132.07 (3) (i), the contingency plan submitted pursuant to ch. NR 182, risks and impacts identified in the environmental impact statement and the measures reasonably anticipated necessary to address those risks and impacts.
NR 132.085(5)(d) (d) To the extent the trust fund relies on accrued income to pay for future preventive or remedial measures, the conservative projection of earnings above inflation shall be used.
NR 132.085(5)(e) (e) The funding of the trust fund for activities identified in sub. (4) shall consider the existence of other binding, guaranteed sources of funds from the permittee which address the same preventive and remedial measures and the financial ability of the permittee to comply with legal obligations for necessary remedial activities during the operation. It is the intent of this section that the trust fund not duplicate similar financial obligations under other applicable provisions of law or administrative codes.
NR 132.085(6) (6) Principal and income accrued from the trust fund may be used to pay for activities identified in sub. (4), only if:
NR 132.085(6)(a) (a) The mine permittee is not obligated by law or conditions of other obligations, such as the provision of a bond under s. 293.51, Stats., to pay for the activities, or
NR 132.085(6)(b) (b) The mine permittee is financially incapable of paying for the costs of the activities regardless of legal obligations to do so.
NR 132.085(7) (7) Notwithstanding sub. (6), principal and income from the trust fund may be used to pay for activities identified in sub. (4), which require immediate attention while issues of financial responsibility are resolved. Should the permittee, a successor in interest to the permittee or another party be determined to be financially responsible for the costs of the activities, the reimbursement monies obtained from those entities shall be deposited in the trust account.
NR 132.085(8) (8) Activities identified under sub. (4) shall be undertaken by private entities under contract with the department and the trustee. The department shall determine when preventive or remedial activities to be funded by the trust fund need to be undertaken. It shall identify the scope of work, choose the entity to perform the work, and monitor compliance with the contract. The contract shall state that, upon satisfactory performance of work as determined by the department, the trustee shall pay to the contracting entity the amounts provided for by the contract. The contract may allow for interim payments.
NR 132.085(9) (9) Periodic reevaluation of the funding the trust account shall be undertaken as follows:
NR 132.085(9)(a) (a) The department shall review the funding of the trust account, once every 5 years after issuance of the mining permit, or when the department determines there has been a significant event or changed circumstances. The review shall include the propriety of the assumptions made in the initial determination of funding, findings from previous reviews, as well as the adequacy of the funding in the trust account. The determination may include a requirement for additional payment of principal by the permittee, or, in the case of a determination of over-funding, reimbursement to the permittee of a portion of the funds in the trust account.
NR 132.085(9)(b) (b) The permittee, any municipality within whose boundaries the mining site is located, any Native American community that has tribal lands within such municipality, or 5 or more interested parties may request a review independent from the review provided for in par. (a). The department shall grant the request upon a showing by the proponent for the review that there has been a significant event or changed circumstances since the last review, and that these changed circumstances warrant reevaluation prior to the next 5-year review.
NR 132.085(9)(c) (c) The department shall provide a notice of its determination under pars. (a) and (b) in the same manner as specified under s. 293.43 (3) (b) 1. and 2., Stats. If the determination involves any modifications to the funding of the trust fund, the notice shall include a detailed summary of the proposed changes and provide for provision of the complete proposed set of changes upon written request.
NR 132.085(9)(d) (d) If the department determines a modification to the funding of the trust is warranted, and if the permittee, any municipality within whose boundaries the mining site is located, any Native American community that has tribal lands within such municipality, or 5 or more interested parties requests a hearing with 30 days of notice, a contested case hearing shall be conducted under ch. 227, Stats.
NR 132.085(10)(a)(a) During the period of scheduled payments into the trust fund, the permittee shall establish and maintain a separate performance bond or satisfactory insurance coverage in an amount adequate to cover all risks and associated remedial and preventive measures identified under sub. (5) (b).
NR 132.085(10)(b) (b) The performance bond or insurance shall remain in effect until issuance of a certificate of completion of reclamation for the entire mining site.
NR 132.085(10)(c) (c) The performance bond or insurance shall be issued by a company licensed to do business in the state of Wisconsin and shall be subject to the termination and replacement requirements specified in s. NR 132.09 (2) (a) 2. and 3.
NR 132.085(10)(d) (d) If implementation of remedial or preventive measures under sub. (4) is needed prior to issuance of a certificate of completion of reclamation for the entire mining site, the performance bond or insurance shall only be used to fund the necessary actions in the event the trust fund is not sufficient to cover the entire costs of remediation or prevention.
NR 132.085 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00; CR 13-057: am (1) Register July 2015 No. 715, eff. 8-1-15.
NR 132.09 NR 132.09 Issuance.
NR 132.09(1)(1) Unless denied pursuant to s. NR 132.10, the department shall issue a mining permit to the applicant within 90 days following completion of the public hearing record.
NR 132.09(2) (2) After issuance of the permit but prior to commencing mining, the operator shall file with the department the following:
NR 132.09(2)(a) (a) As required by s. 293.51, Stats., a bond or other security payable to the department conditioned upon faithful performance of all requirements of ch. 293, Stats., and the provisions of this chapter.
NR 132.09(2)(a)1. 1. The amount of the bond or other security required shall be equal to the estimated cost to the state of fulfilling the reclamation plan, in relation to that portion of the site that will be disturbed by the end of the following year. The estimated cost of reclamation shall be determined by the department on the basis of those factors listed in s. NR 132.07. In lieu of a bond, the operator may deposit cash, certificates of deposit or government securities with the department. Interest received on certificates of deposit and government securities shall be paid to the operator. The department may increase the amount of the bond, cash, certificates of deposit or government security in lieu of the procedures contained in s. NR 132.12 (2), in order to assure adequate financing for the reclamation plan.
NR 132.09(2)(a)2. 2. The bond shall be issued by a surety company licensed to do business in Wisconsin. If the surety company's license to do business is revoked or suspended, the operator, within 30 days after receiving written notice thereof from the department, shall substitute surety underwritten by a surety company licensed to do business in Wisconsin. Upon failure of the operator to make a substitution, the department shall suspend the operator's mining permit until substitution has been made.
NR 132.09(2)(a)3. 3. Each bond shall provide that the bond shall not be canceled by the surety, except after not less than 90 days notice to the department 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 department a replacement bond in the absence of which all mining shall cease.
NR 132.09(2)(b) (b) A certificate of insurance certifying that the operator has in force a liability insurance policy issued by an insurance company authorized to do business in this state or in lieu of a certificate of insurance, evidence that the operator has satisfied state or federal self-insurance requirements covering all mining of the operator in this state and affording personal injury and property damage protection in a total amount deemed adequate by the department but not less than $50,000.
NR 132.09(3) (3) Upon receipt of a satisfactory reclamation bond, the certificate of insurance and evidence of the establishment of the necessary trust fund and associated performance bond or insurance in accordance with s. NR 132.085, the department shall give written authorization to the operator to commence mining in accordance with the mining and reclamation plans.
NR 132.09 History History: Cr. Register, August, 1982, No. 320, eff. 9-1-82; am. (3), Register, January, 2000, No. 529, eff. 2-1-00; corrections in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 2000, No. 529.
NR 132.10 NR 132.10 Denial.
NR 132.10(1)(1) The department shall deny a mining permit if it finds any of the following:
NR 132.10(1)(a) (a) The mining plan and reclamation plan will not result in reclamation of the mining site consistent with ch. 293, Stats., and the provisions of this chapter.
NR 132.10(1)(b) (b) The proposed operation will not comply with all applicable air, ground and surface water and solid and toxic waste disposal laws and rules of the department.
NR 132.10(1)(c) (c) In the case of a surface mine, the site is unsuitable for surface mining.
NR 132.10(1)(d) (d) The proposed mine will endanger public health, safety or welfare.
NR 132.10(1)(e) (e) The proposed mine will result in a net substantial adverse economic impact in the area reasonably expected to be most impacted by the mining activity.
NR 132.10(1)(f) (f) The proposed mining operation does not conform with all applicable zoning ordinances.
NR 132.10(1)(g) (g) The applicant is in violation of ch. 293, Stats., and the provisions of this chapter.
NR 132.10(1)(h) (h) The applicant has within the previous 20 years forfeited any bond posted in accordance with mining activities in this state unless by mutual agreement with the state.
NR 132.10(1)(i) (i) Any officer or director of the applicant, while employed by the applicant, the applicant's parent corporation, any of the applicant's principal shareholders or any of the applicant's subsidiaries or affiliates in which the applicant owns more than a 40% interest, has within the previous 20 years forfeited any bond posted in accordance with mining activities in this state, unless by mutual agreement with the state.
NR 132.10(1)(j) (j) The proposed mining activity may reasonably be expected to create the following situations:
NR 132.10(1)(j)1. 1. Landslides or substantial deposition from the proposed operation in stream or lake beds which cannot be feasibly prevented.
NR 132.10(1)(j)2. 2. Significant surface subsidence which cannot be reclaimed because of the geologic characteristics present at the proposed site.
NR 132.10(1)(j)3. 3. Hazards resulting in irreparable damage to any of the following, which cannot be prevented under the requirements of ch. 293, Stats., avoided to the extent applicable by removal from the area of hazard or mitigated by purchase or by obtaining the consent of the owner:
NR 132.10(1)(j)3.a. a. Dwelling houses.
NR 132.10(1)(j)3.b. b. Public buildings.
NR 132.10(1)(j)3.c. c. Schools.
NR 132.10(1)(j)3.d. d. Churches.
NR 132.10(1)(j)3.e. e. Cemeteries.
NR 132.10(1)(j)3.f. f. Commercial or institutional buildings.
NR 132.10(1)(j)3.g. g. Public roads.
NR 132.10(1)(j)3.h. h. Other public property designated by the department.
NR 132.10(1)(j)4. 4. Irreparable environmental damage to lake or stream bodies despite adherence to the requirements of ch. 293, Stats. This subdivision does not apply to an activity which the department has authorized pursuant to statute, except that the destruction or filling in of a lake bed shall not be authorized notwithstanding any other provision of law.
NR 132.10(2) (2) If an application for a mining permit is denied, the department within 90 days of completion of the hearing record shall furnish the operator findings of fact, conclusions of law and order setting forth the reasons for denial.
NR 132.10 History History: Cr. Register, August, 1982, No. 320, eff. 9-1-82; corrections in (1) (a), (g), (j) 3. and 4. made under s. 13.93 (2m) (b) 7., Stats., Register, January, 2000, No. 529.
NR 132.11 NR 132.11 Monitoring.
NR 132.11(1)(1) The operator shall monitor the mining site in accordance with the monitoring plan contained in the mining permit. The department may require the operator to perform additional monitoring of environmental changes during the course of the permitted activity and for such additional periods of time as is necessary to satisfactorily complete reclamation.
NR 132.11(2) (2) The department may monitor environmental changes concurrently with the operator as stated in sub. (1) and for an additional period of time after the full bond is released pursuant to s. 293.63, Stats.
NR 132.11(3)(a)(a) Baseline data and monitoring data including the monitoring plan shall be reviewed at the time of annual permit review, or at such time as the operator requests any modification of the mining permit or reclamation plan.
NR 132.11(3)(b) (b) Baseline data and monitoring data shall be considered by the department in all enforcement actions including issuance of a stop order to an operator, requiring an immediate cessation of mining, in whole or in part, at any time that the department determines that there exists an immediate substantial threat to public health and safety or the environment.
NR 132.11(3)(c) (c) If the analyses of samples indicate that the quality of the groundwater is statistically significantly different from either baseline or background, the owner shall notify the department immediately.
NR 132.11(4) (4) Any request for modification of the monitoring plan contained in the mining permit shall comply with the procedures in s. NR 131.12.
NR 132.11(5) (5) Bacteriological analyses of water samples, and all radiological analyses, shall be performed by the state laboratory of hygiene or at a laboratory certified or approved by the department of health and social services. Other laboratory test results submitted to the department under this chapter shall be performed by a laboratory certified or registered under ch. NR 149. The following tests are excluded from this requirement:
NR 132.11(5)(a) (a) Physical testing of soil,
NR 132.11(5)(b) (b) Air quality tests,
NR 132.11(5)(d) (d) Chlorine residual,
NR 132.11(5)(e) (e) Temperature.
NR 132.11 Note Note: The requirement in this section to submit data from a certified or registered laboratory is effective on August 28, 1986.
NR 132.11 History History: Cr. Register, August, 1982, No. 320, eff. 9-1-82; cr. (5), Register, April, 1986, No. 364, eff. 8-28-86; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 2000, No. 529.
NR 132.12 NR 132.12 Permit review and modification.
NR 132.12(1) (1) The department shall review the mining and reclamation plans annually after the date of the mining permit issuance or a review as provided in s. NR 132.11 (2).
NR 132.12(2) (2) If the department finds that because of changing conditions, including but not limited to changes in reclamation costs, reclamation technology, minimum standards in s. 293.13 (2) (c), Stats., or government land use plans, the reclamation plan for a mining site is no longer sufficient to reasonably provide for reclamation of the mining site consistent with ch. 293, Stats., and the provisions of this chapter, the department shall require the applicant to submit amended mining and reclamation plans which shall be processed in the same manner as an application for an original mining permit. The applicant shall be deemed to hold a temporary mining permit which shall be effective until the amended mining permit is issued or denied.
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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.