1995 Wisconsin Act 227

227,766 Section 766 . 144.84 (2) and (3) of the statutes are renumbered 293.45 (1) and (2) and amended to read:

293.45 (1) The department shall issue a prospecting permit under this section to an applicant within 60 days following the date of the completion of the hearing record if, on the basis of the application, the department's investigation and hearing and any written comments, it finds that the site is not unsuitable for prospecting or, absent a certification under sub. (1), surface mining, the department has approved the prospecting plan and the reclamation plan complies with ss. 144.83 293.13 (2) and 144.834 293.35 (2) and (3) and rules promulgated under ss. 144.83 293.13 (2) and 144.834 293.35 (2) and (3). The department may modify any part of the application or reclamation plan and approve it as modified. Except as otherwise provided in ss. 144.80 to 144.94 this chapter, prospecting permits shall be valid for the life of the project, unless canceled under s. 144.83 (6) or 144.91 293.83 (1) or (3) or 293.85 or revoked under s. 144.93 293.87 (2) or (3).

Note: The requirement for the DNR to approve the prospecting plan before issuing the prospecting permit is moved here from its current location in the definition of “prospecting plan". See s. 144.81 (13m), renumbered as s. 293.01 (20).

(2) The department shall deny a prospecting permit within 60 days following the date of the completion of the hearing record if it finds that the site is unsuitable for prospecting or, absent certification under sub. s. 293.35 (1), surface mining, or the reclamation plan, including the bond, does not comply with ss. 144.83 293.13 (2) and 144.834 293.35 (2) and (3) and rules promulgated under ss. 144.83 293.13 (2) and 144.834 293.35 (2) and (3) or that the applicant is in violation of ss. 144.80 to 144.94 this chapter or any rules adopted under ss. 144.80 to 144.94 this chapter. If the applicant has previously failed and continues to fail to comply with ss. 144.80 to 144.94 this chapter, or if the applicant has within the previous 20 years forfeited any bond posted in accordance with prospecting or mining activities in this state, unless by mutual agreement with the state, the department may not issue a prospecting permit. The department may not issue a prospecting permit if it finds that any officer, director or manager of the applicant has, while employed by the applicant, the applicant's parent corporation, any of the applicant's principal shareholders or members, or any of the applicant's subsidiaries or affiliates, in which the applicant owns more than a 40% interest, within the previous 20 years forfeited any bond posted in accordance with prospecting or mining activities in this state unless by mutual agreement with the state. In this paragraph subsection, “forfeited any bond" means the forfeiture of any performance security occasioned by noncompliance with any prospecting or mining laws or implementing rules. If an application for a prospecting permit is denied, the department, within 30 days from the date of application denial, shall furnish to the applicant in writing the reasons for the denial.

227,767 Section 767 . 144.84 (4) of the statutes is renumbered 293.53 (1).

227,768 Section 768 . 144.84 (5) of the statutes is renumbered 293.35 (5).

227,769 Section 769 . 144.85 (title) of the statutes is repealed.

227,770 Section 770 . 144.85 (1) (a) and (b) of the statutes are renumbered 293.37 (1) (a) and (b), and 293.37 (1) (a), as renumbered, is amended to read:

293.37 (1) (a) No operator may engage in mining or reclamation at any mining site that is not covered by a mining permit and by written authorization to mine under s. 144.86 293.51 (3). Applications for mining permits shall be made in writing and in reproducible form to the department upon forms prepared and furnished by it and in such multiples as required by rule of the department. An application shall be made, and a mining permit obtained for each separate mining site. No application for surface mining at a site may be entertained by the department if within the previous 5 years the applicant, or a different person who had received a prospecting permit for the site had certified under s. 144.84 293.35 (1) that he or she would not subsequently make application for a permit to conduct surface mining at the site.

227,771 Section 771 . 144.85 (1) (c) of the statutes is renumbered 293.49 (8).

227,772 Section 772 . 144.85 (2) (a) of the statutes is renumbered 293.37 (5).

227,773 Section 773 . 144.85 (2) (b) of the statutes is renumbered 293.49 (6) and amended to read:

293.49 (6) Except as otherwise provided in ss. 144.87 to 144.91 293.53 (2), 293.55 to 293.59, 293.63, 293.81 and 293.83, mining permits shall be valid for the life of the project unless canceled under s. 144.83 (6) or 144.91 293.83 (1) or (3) or 293.85 or revoked under s. 144.93 293.87 (2) or (3).

227,774 Section 774 . 144.85 (3) (intro.), (a), (b), (c), (d), (e), (f) and (g) of the statutes are renumbered 293.37 (2) (intro.), (a), (b), (c), (d), (e), (f) and (h), and 293.37 (2) (b), (d) and (f), as renumbered, are amended to read:

293.37 (2) (b) In addition to the information and maps otherwise required by this subsection, a detailed reclamation plan showing the manner, location and time for reclamation, including ongoing reclamation during mining, of the proposed mining site. The reclamation plan shall be accompanied by a map subject to the requirements in par. (a) which shall show the specific reclamation proposal for each area of the site. The reclamation plan shall conform to any applicable comprehensive plan created under sub. (4) (b), and to any applicable minimum standard created under ss. 144.83 293.13 (2) and 144.834 293.35 (2) and (3).

(d) Evidence satisfactory to the department that the applicant has applied for necessary approvals and permits under all applicable zoning ordinances and that the operator has applied for the necessary approval, licenses or permits required by the department including, but not limited to, those under chs. 30, 31, 107, 147 280 to 285, 289 to 292, 295 and 162 299 and this chapter.

(f) Information relating to whether unsuitability may exist for surface mining to the extent not fully considered under s. 144.84 293.45.

227,775 Section 775 . 144.85 (4) (a) and (b) of the statutes are renumbered 293.37 (4) (a) and (b), and 293.37 (4) (b), as renumbered, is amended to read:

293.37 (4) (b) If the department finds that the anticipated life and total area of a mineral deposit are of sufficient magnitude that reclamation of the mining site consistent with ss. 144.80 to 144.94 this chapter requires a comprehensive plan for the entire affected area, it shall require an operator to submit with the application for a mining permit, amended mining site or change in mining or reclamation plan, a comprehensive long-term plan showing, in detail satisfactory to the department, the manner, location and time for reclamation of the entire area of contiguous land which will be affected by mining and which is owned, leased or under option for purchase or lease by the operator at the time of application. Where a mineral deposit lies on or under the lands of more than one operator, the department shall require the operators to submit mutually consistent comprehensive plans.

227,776 Section 776 . 144.85 (4) (c) of the statutes is renumbered 293.37 (2) (g) and amended to read:

293.37 (2) (g) The department shall require an applicant to describe A description of any land contiguous to the proposed mining site which he or she owns, leases or has an option to purchase or lease.

227,777 Section 777 . 144.85 (5) (a) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 293.49 (1), and 293.49 (1) (a) 1. and 3. and (b), as renumbered, are amended to read:

293.49 (1) (a) 1. The mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site consistent with ss. 144.80 to 144.94 this chapter and any rules adopted under ss. 144.80 to 144.94 this chapter and the department has approved the mining plan.

Note: The requirement for the DNR to approve the mining plan before issuing the mining permit is moved here from its current location in the definition of “mining plan". See s. 144.81 (6), renumbered as s. 293.01 (10).

3. In the case of a surface mine, the site is not unsuitable for mining. The preliminary determination that a site was not unsuitable for mining under s. 144.84 293.45 may not be conclusive in the determination of the site's suitability for mining under this section. However, at the hearing held under this section and s. 144.836 293.43, testimony and evidence submitted at the prospecting permit proceeding relevant to the issue of suitability of the proposed mining site for surface mining may be adopted, subject to the opportunity for cross-examination and rebuttal, if not unduly repetitious.

(b) Each approval or denial shall be made in findings of fact, conclusions of law and an order setting forth reasons with clarity and in detail. The department may modify the operator's proposed mining or reclamation plans in order to meet the requirements of ss. 144.80 to 144.94 this chapter, and, as modified, grant its approval.

227,778 Section 778 . 144.85 (5) (b) of the statutes is renumbered 293.49 (2), and 293.49 (2) (b) and (d) 3., as renumbered, are amended to read:

293.49 (2) (b) That the applicant has violated and continues to fail to comply with ss. 144.80 to 144.94 this chapter or any rule adopted under those sections this chapter.

(d) 3. The applicant included in its permit application under sub. s. 293.37 (1) a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.

227,779 Section 779 . 144.85 (5) (bm) of the statutes is renumbered 293.49 (3) and amended to read:

293.49 (3) The department may not deny a mining permit under par. (b) 3. to 6. sub. (2) (c) to (f) if the person subject to the convictions, forfeiture, permanent revocation, bankruptcy or dissolution is a related person but the applicant shows that the person was not the parent corporation of the applicant, a person that holds more than a 30% ownership in the applicant, or a subsidiary or affiliate of the applicant in which the applicant holds more than a 30% interest at the time of the convictions, forfeiture, permanent revocation, bankruptcy or dissolution.

227,780 Section 780 . 144.85 (5) (c) of the statutes is renumbered 293.39 (3) and amended to read:

293.39 (3) To the extent that an environmental impact statement on a prospecting permit application under s. 144.84 293.35, if prepared, fully considered unsuitability of the prospecting site for surface mining by virtue of unique features of the land as enumerated in s. 144.81 (18) 293.01 (28), that portion of the previous impact statement may be adopted in the impact statement on the mining permit application.

227,781 Section 781 . 144.85 (5) (d) and (e) of the statutes are renumbered 293.49 (4) and (5) and amended to read:

293.49 (4) The prior issuance of a prospecting permit under s. 144.84 293.45 for all or part of a site shall, in and of itself, be given no weight in the decision to grant or deny a mining permit under this section, and the department must find, in any order granting, or granting with conditions, a mining permit that no weight was given in the decision to the prior issuance of a prospecting permit. However, to the extent that testimony and evidence submitted at the prospecting permit proceedings is relevant to the issue of whether to grant or deny a mining permit, the testimony and evidence may be adopted in the mining permit proceedings, subject to the opportunity for cross-examination and rebuttal to the extent that the testimony and evidence are not unduly repetitious.

(5) The department shall send its statement, together with a copy of its rules and finding as to whether the applicant has otherwise satisfied the requirements of ss. 144.80 to 144.94 this chapter, to the applicant and to the other parties.

227,782 Section 782 . 144.852 of the statutes is renumbered 293.39, and 293.39 (1), as renumbered, is amended to read:

293.39 (1) The department shall prepare an environmental impact statement for every mining permit under s. 144.85 293.49. In preparing the environmental impact statement, the department shall comply with sub. (2) and s. 1.11 (2).

227,783 Section 783 . 144.855 of the statutes is renumbered 293.65, and 293.65 (1), (2) (h) and (i) and (3), as renumbered, are amended to read:

293.65 (1) Scope. This section governs the withdrawal or diversion of groundwaters or surface waters by persons engaged in prospecting or mining. Discharges of waters are subject to ch. 147 283, construction of necessary dams or other structures is subject to chs. 30 and 31 and construction of wells is subject to ch. 162 280, to the extent applicable.

(2) (h) Hearings on applications for diversion permits under this subsection shall be preceded by mailed notice to all parties or affected persons and by publication in the affected area of a class 2 notice, under ch. 985. Hearings may be conducted as part of a hearing on an application for a mining permit under s. 144.85 293.37.

(i) If a hearing on the application for a permit is conducted as a part of a hearing under s. 144.836 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of this subsection.

(3) Withdrawal of groundwater; dewatering; permit requirements. (a) An approval under s. 144.025 (2) (e) 281.17 (1) is required to withdraw groundwater or to dewater mines if the capacity and rate of withdrawal of all wells involved in the withdrawal of groundwater or the dewatering of mines exceeds 100,000 gallons each day. A permit under s. 147.02 283.31 is required to discharge pollutants resulting from the dewatering of mines.

(b) The department may not issue an approval under s. 144.025 (2) (e) 281.17 (1) if the withdrawal of groundwater for prospecting or mining purposes or the dewatering of mines will result in the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state. No withdrawal of groundwater or dewatering of mines may be made to the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state.

227,784 Section 784 . 144.86 of the statutes is renumbered 293.51, and 293.51 (1), as renumbered, is amended to read:

293.51 (1) Upon notification that an application for a prospecting or mining permit has been approved by the department but prior to commencing prospecting or mining, the operator shall file with the department a bond conditioned on faithful performance of all of the requirements of ss. 144.80 to 144.94 this chapter and all rules adopted by the department under ss. 144.80 to 144.94 this chapter. The bond shall be furnished by a surety company licensed to do business in this state. 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 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 of each prospecting or mining site shall be determined by the department on the basis of relevant factors including, but not limited to, expected changes in the price index, topography of the site, methods being employed, depth and composition of overburden and depth of mineral deposit being mined.

227,785 Section 785 . 144.87 (title) and (1) of the statutes are renumbered 293.55 (title) and (1), and 293.55 (1) (c) and (d), as renumbered, are amended to read:

293.55 (1) (c) Substantial changes. The department shall determine if any change in the mining or reclamation plans is substantial and provide notice of its determination in the same manner as specified under s. 144.836 293.43 (3) (b) 1. to 3.

(d) Notice. The department shall provide notice of any modification which involves an increase or decrease in the area of a mining site or a substantial change in the mining or reclamation plan in the same manner as an original application for a mining permit under s. 144.836 293.43 (3). If 5 or more interested persons do not request a hearing in writing within 30 days of notice, no hearing is required on the modification. The notice shall include a statement to this effect.

227,786 Section 786 . 144.87 (2) of the statutes is renumbered 293.57 and amended to read:

293.57 (title) Successors. When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease or otherwise, the department shall release the first operator from the duties imposed upon the first operator by ss. 144.80 to 144.94 this chapter as to such operation if:

(1) Both operators have complied with the requirements of ss. 144.80 to 144.94 this chapter; and

(2) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any prospecting or mining laws within the previous 20 years, posts any bond required under s. 144.86 293.51 and assumes all responsibilities of all applicable permits, licenses and approvals granted to the predecessor operator.

227,787 Section 787 . 144.87 (3) of the statutes is renumbered 293.55 (2) and amended to read:

293.55 (2) If the department finds that because of changing conditions, including but not limited to changes in reclamation costs, reclamation technology, minimum standards under s. 144.83 ss. 293.13 and 293.15 (1) to (12) or governmental land use plans, the reclamation plan for a mining site is no longer sufficient to reasonably provide for reclamation of the project site consistent with ss. 144.80 to 144.94 this chapter and any rules adopted under ss. 144.80 to 144.94 this chapter, it 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. The department shall review the mining and reclamation plans annually after the date of the mining permit issuance or previous review under this section.

227,788 Section 788 . 144.875 of the statutes is renumbered 293.59.

227,789 Section 789 . 144.88 of the statutes is renumbered 293.81 and amended to read:

293.81 Exploring, prospecting and mining without authorization. Any person who engages in exploration without a license shall forfeit not less than $100 nor more than $1,000 for each parcel as defined under s. 144.832 (1) (c) 293.21 (1) (b) on which unlicensed exploration took place. Any person who authorizes or engages in prospecting without a prospecting permit or any operator who authorizes or engages in mining without a mining permit and written authorization to mine under s. 144.86 293.51 (3) shall forfeit all profits obtained from such illegal activities and not more than $10,000 for each day during which the mine was in operation. The operator shall be liable to the department for the full cost of reclaiming the affected area of land and any damages caused by the mining operation. Each day's violation of this section shall be deemed a separate offense. If the violator is a corporation, limited liability company, partnership or association, any officer, director, member, manager or partner who knowingly authorizes, supervises or contracts for exploration, prospecting or mining shall also be subject to the penalties of this section.

227,790 Section 790 . 144.89 (title) of the statutes is repealed.

227,791 Section 791 . 144.89 (1), (1m) and (2) of the statutes are renumbered 293.53 (2) (a), (b) and (c), and 293.53 (2) (b) and (c), as renumbered, are amended to read:

293.53 (2) (b) Annually, the department shall review the mining and reclamation plans and bonds, using the procedure specified under s. 144.84 (4) sub. (1).

(c) The department shall cancel the mining permit held by any operator who fails and refuses to submit reports required under this section subsection.

227,792 Section 792 . 144.90 of the statutes is renumbered 293.63, and 293.63 (1), as renumbered, is amended to read:

293.63 (1) Upon the petition of the operator, but not less than 4 years after notification to the department by the operator of the completion of the reclamation plan, if the department finds after conducting a hearing that the operator has completed reclamation for any portion of the mining site in accordance with the reclamation plan and ss. 144.80 to 144.94 this chapter, the department shall issue a certificate of completion setting forth a description of the area reclaimed and a statement that the operator has fulfilled its duties under the reclamation plan as to that area.

227,793 Section 793 . 144.91 of the statutes is renumbered 293.83, and 293.83 (1) (a) 3. and (d) and (2), as renumbered, are amended to read:

293.83 (1) (a) 3. The department shall request the department of justice to initiate action under s. 144.93 293.87.

(d) Enforcement of orders. The department shall cancel the mining permit for a mining site held by an operator who fails to comply with an order issued under par. (a) 1. The department shall inform the department of justice of the cancellation within 14 days. Within 30 days after the department of justice is informed, it shall commence an action under s. 144.93 293.87.

(2) If reclamation of a mining site is not proceeding in accordance with the reclamation plan and the operator has not commenced to rectify deficiencies within the time specified in the order, or if the reclamation is not properly completed in conformance with the reclamation plan within one year after completion or abandonment of mining on any segment of the mining site, or if the exploration license or prospecting or mining permit is revoked under s. 144.93 293.87 (2) and (3), excepting acts of God, such as adverse weather affecting grading, planting and growing conditions, the department, with the staff, equipment and material under its control, or by contract with others, shall take such actions as are necessary for the reclamation of mined areas. The operator shall be liable for the cost to the state of reclamation conducted under this section. Any operator who is exempted from filing a bond or depositing cash, certificates of deposits or government securities by s. 144.86 293.51 (6) shall not be liable for an amount greater than an amount specified by the department. The specified amount shall be equal to and determined in the same manner as the amount of the bond or other security otherwise required under s. 144.86 293.51 (1), assuming the operator had not been exempt from such filing or depositing.

227,794 Section 794 . 144.92 of the statutes is renumbered 293.91 and amended to read:

293.91 Nonconforming sites. (1) All prospectors and operators conducting mining operations in this state on July 3, 1974 shall submit to the department, within 90 days after that date, applications for prospecting permits or mining permits as provided in ss. 144.84 293.35 and 144.85 293.37. Sections 144.83 293.13 (1) (b) and 144.85 (5) (b) 293.49 (2) shall not apply to such operators.

(2) Modification of existing prospecting and mining sites and of operating procedures to conform with ss. 144.80 to 144.94 this chapter and rules adopted under ss. 144.80 to 144.94 this chapter shall be accomplished as promptly as possible, but the department shall give special consideration to a site where it finds that the degree of necessary improvement is of such extent and expense that compliance cannot be accomplished.

227,795 Section 795 . 144.925 of the statutes is renumbered 293.47.

227,796 Section 796 . 144.93 of the statutes is renumbered 293.87 and amended to read:

293.87 (title) Enforcement; penalties. (1) All orders issued, fines incurred, bond liabilities incurred or other violations committed under ss. 144.80 to 144.94 this chapter shall be enforced by the department of justice. The circuit court of Dane county or any other county where the violation occurred shall have jurisdiction to enforce ss. 144.80 to 144.93 this chapter or any orders issued or rules adopted thereunder, by injunctional or other appropriate relief.

(2) Any person who makes or causes to be made in an application or report required by ss. 144.80 to 144.94 this chapter a statement known to the person to be false or misleading in any material respect or who refuses to file an annual report under s. 144.89 (1) 293.53 (2) (a) or who refuses to submit information required by the prospecting or mining permit may be fined not less than $1,000 nor more than $5,000. If the false or misleading statement is material to the issuance of the permit, the permit may be revoked. If any violation under this subsection is repeated the permit may be revoked.

(3) Any person holding a prospecting or mining permit who violates ss. 144.80 to 144.93 this chapter or any order issued or rule adopted under ss. 144.80 to 144.93 this chapter shall forfeit not less than $10 nor more than $10,000 for each violation. Each day of violation is a separate offense. If the violations continue after an order to cease has been issued, the permit shall be revoked.

227,797 Section 797 . 144.935 of the statutes is renumbered 293.89, and 293.89 (1) (a) and (b) and (3), as renumbered, are amended to read:

293.89 (1) (a) Against any person who is alleged to be in violation of ss. 144.80 to 144.94 this chapter.

(b) Against the department where there is alleged to be a failure of the department to perform any act or duty under ss. 144.80 to 144.94 this chapter which is not discretionary with the department.

(3) The court, in issuing any final order in any action brought under this section, shall award costs of litigation including reasonable attorney and expert witness fees to the plaintiff if he or she prevails, and the court may do so if it determines that the outcome of the controversy is consistent with the relief sought by the plaintiff irrespective of the formal disposition of the civil action. In addition, the court shall award treble damages to any plaintiff proving damages caused by a person mining without a permit or wilfully violating ss. 144.80 to 144.94 this chapter or any permits or orders issued under ss. 144.80 to 144.94 this chapter.

227,798 Section 798 . 144.937 of the statutes is renumbered 293.93 and amended to read:

293.93 Effect of other statutes. If there is a standard under other state or federal statutes or rules which specifically regulates in whole an activity also regulated under ss. 144.80 to 144.94 this chapter the other state or federal statutes or rules shall be the controlling standard. If the other state or federal statute or rule only specifically regulates the activity in part, it shall only be controlling as to that part.

227,799 Section 799 . 144.94 of the statutes is renumbered 293.95 and amended to read:

293.95 Review. Any person aggrieved by any decision of the department under ss. 144.80 to 144.937 this chapter may obtain its review under ch. 227.

227,800 Section 800 . 144.9407 (title) of the statutes is repealed.

227,801 Section 801 . 144.9407 (1) (intro.), (a), (b), (c), (d), (e) and (f) of the statutes are renumbered 295.11 (intro.), (3), (4), (5), (6), (7) and (9), and 295.11 (intro.), as renumbered, is amended to read:

295.11 Definitions. (intro.) In this section subchapter:

227,802 Section 802 . 144.9407 (2) of the statutes is renumbered 295.12, and 295.12 (1) (b) and (d), (2) (a) and (e) and (3) (intro.), (a), (b), (e) (intro.), (f) and (k), as renumbered, are amended to read:

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