293.43
293.43
Hearings on permit applications. 293.43(1)
(1)
Applicability. This section, and
ch. 227 where it is not inconsistent, shall govern all hearings on applications for prospecting or mining permits.
293.43(1m)(a)(a) The hearing on the prospecting or mining permit shall cover the application and any statements prepared under
s. 1.11 and, to the fullest extent possible, all other applications for approvals, licenses and permits issued by the department. The department shall inform the applicant as to the timely application date for all approvals, licenses and permits issued by the department, so as to facilitate the consideration of all other matters at the hearing on the prospecting or mining permits.
293.43(1m)(b)
(b) Except as provided in this paragraph, for all department issued approvals, licenses and permits relating to prospecting or mining including solid waste feasibility report approvals and permits related to air and water, to be issued after April 30, 1980, the notice, hearing and comment provisions, if any, and the time for issuance of decisions, shall be controlled by this section and
ss. 293.45 and
293.49. If an applicant fails to make application for an approval, license or permit for an activity incidental to prospecting or mining in time for notice under this section to be provided, the notice and comment requirements, if any, shall be controlled by the specific statutory provisions with respect to that application. If notice under those specific statutory notice requirements can be given for consideration of the approval, license or permit at the hearing under this section, the application shall be considered at that hearing; otherwise, the specific statutory hearing provisions, if any, with respect to that application shall control. The substantive requirements for the issuance of any approval, permit or license incidental to prospecting or mining are not affected by the fact that a hearing on the approval, permit or license is conducted as part of a hearing under this section.
293.43(2)
(2) Location. The hearing shall be held in the county where the prospecting or mining site, or the largest portion of the prospecting or mining site, is located, but may subsequently be adjourned to other locations.
293.43(3)
(3) Timing of notice and of hearing; giving of notice. 293.43(3)(a)(a) If it is determined that a statement under
s. 1.11 is not required, the hearing shall be scheduled for a date not less than 60 days nor more than 90 days after the announcement of that determination, and the scheduling and providing of notice shall be completed not later than 10 days following the announcement. Notice of the hearing shall be given by mailing a copy of the notice to any known state agency required to issue a permit for the proposed operation, to the regional planning commission for the affected area, to the county, city, village and town within which any part of the affected area lies, to all persons who have requested this notification and, if applicable, to all persons specified under
par. (b) 3. and
s. 281.35 (5) (b) and
(6) (f). Written comments may be submitted to the department within 30 days of the date of notice.
293.43(3)(b)
(b) If it is determined that a statement under
s. 1.11 is required, or if an environmental impact statement is required under
s. 293.39, the department shall hold at least one informational meeting regarding the preliminary environmental report within 60 days of its issuance. The meeting shall be held not sooner than 30 days nor later than 60 days after the issuance of the report. The scheduling and providing of notice of the meeting shall be completed not later than 10 days following the issuance of the preliminary environmental report. A hearing referred to under
sub. (1m) shall be scheduled for a date not less than 120 days nor more than 180 days after the issuance of the environmental impact statement. The scheduling and providing of notice of the hearing shall be completed within 30 days from the date of issuance of the environmental impact statement. The providing of notice shall be accomplished by:
293.43(3)(b)1.
1. Mailing a copy of the notice to all known departments and agencies required to grant any permit necessary for the proposed operation, to any regional planning commission within which the affected area lies, to the governing bodies of all towns, villages, cities and counties within which any part of the proposed prospecting or mining site lies, to the governing bodies of any towns, villages or cities contiguous to any town, village or city within which any part of the proposed prospecting or mining site lies and to any interested persons who have requested such notification.
293.43(3)(b)2.
2. Publication of a class 2 notice, under
ch. 985, utilizing a display advertising format, in the weekly newspaper published in the closest geographic proximity to the proposed prospecting or mining site, in the newspaper having the largest circulation in the county within which the proposed site lies and in those newspapers published in counties contiguous to the county within which the proposed site lies which have a substantial circulation in the area of, or adjacent to, the proposed prospecting or mining site.
293.43(3)(b)3.
3. Mailing a copy of the notice to the U.S. environmental protection agency, U.S. army corps of engineers and other states potentially affected by the proposed discharge if a water discharge permit under
ch. 283 is to be considered at the hearing under this section and to the U.S. environmental protection agency and appropriate agencies in other states which may be affected if an air pollution control permit under
ch. 285 is to be considered at the hearing under this section.
293.43(3)(c)
(c) Written comments may be submitted by any governmental agency within 80 days of the date of issuance of the statement under
par. (b). Individual persons may submit written comments within 120 days of the date of issuance of the statement. The last day for receipt of comments shall be specified by the department in all notices.
293.43(4)
(4) Participation by local governments. Any county, town, village or city receiving notice of the filing of an application in the manner provided under
sub. (3) (a) or
(b) shall refer the application and reclamation plan to a committee established under
s. 293.33 (1) or
(2), if any, for review and comment. Such counties, towns, villages or cities may participate as a party in the hearing on the application and may make recommendations on the reclamation plan and future use of the project site.
293.43(5)(a)(a) At the opening of the hearing, the hearing examiner shall advise all persons present of their right to express their views either orally or in writing, under oath or otherwise, and of the legal effect of each form of testimony. All interested persons, at the hearing or at a time set prior to the hearing, shall be given an opportunity, subject to reasonable limitations on the presentation of repetitious or irrelevant material, to express their views on any aspect of the matters under consideration. The presentation of these views need not be under oath nor subject to cross-examination. A written record of unsworn testimony shall be made.
293.43(5)(b)
(b) Persons who wish to participate as parties shall file a written notice with the hearing examiner setting forth their interest at least 30 days prior to the scheduled time of the hearing or prior to the scheduled time of any prehearing conference, whichever is earlier, unless good cause is shown.
293.43(5)(c)
(c) The record shall consist of the contested case portion of the proceeding. Views given under
par. (a) and all written comments submitted from any source shall be placed in the file of the proceeding and shall be given appropriate probative value by the hearing examiner or decisionmaker.
293.43(5)(d)
(d) Hearings conducted under this section may be continued for just cause.
293.43(5)(e)
(e) If evidence of conformance with applicable zoning ordinances as required by
s. 293.49 (1) (a) 6. is not presented by the time testimony is completed, the department shall close the record and continue the hearing. The duration of the continuance of the hearing shall be specified by the department at the time the continuance begins, after first requesting the applicant to state the anticipated time at which the evidence will be provided. The continuance may be extended by the department prior to its expiration upon notice to all parties if good cause is shown.
293.43(5)(f)
(f) Each approval or denial of a license or permit considered at the hearing under this section shall be made in findings of fact, conclusions of law and an order setting forth reasons with clarity and in detail.
293.43 History
History: 1977 c. 421;
1979 c. 221,
355;
1985 a. 60;
1991 a. 259;
1995 a. 227 ss.
759,
760,
762,
994; Stats. 1995 s. 293.43.
293.43 Cross-reference
Cross Reference: See also ch.
NR 182, Wis. adm. code.
293.45
293.45
Prospecting; department grant or denial of permit. 293.45(1)(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
s. 293.35 (1), surface mining, the department has approved the prospecting plan and the reclamation plan complies with
ss. 293.13 (2) and
293.35 (2) and
(3) and rules promulgated under
ss. 293.13 (2) and
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 this chapter, prospecting permits shall be valid for the life of the project, unless canceled under
s. 293.83 (1) or
(3) or
293.85 or revoked under
s. 293.87 (2) or
(3).
293.45(2)
(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
s. 293.35 (1), surface mining, or the reclamation plan, including the bond, does not comply with
ss. 293.13 (2) and
293.35 (2) and
(3) and rules promulgated under
ss. 293.13 (2) and
293.35 (2) and
(3) or that the applicant is in violation of this chapter or any rules adopted under this chapter. If the applicant has previously failed and continues to fail to comply with 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 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.
293.45(3)
(3) The department, in granting a permit under this section, shall require the permit holder to perform adequate monitoring of environmental changes during the course of the permitted activity and for such additional period of time as is necessary to satisfactorily complete reclamation and completely release the permit holder from any bonds required.
293.45 Cross-reference
Cross Reference: See also ch.
NR 182, Wis. adm. code.
293.47
293.47
Prospecting data. 293.47(1)(a)
(a) "Economic information" means financial and economic projections for any potential mining of an ore body including estimates of capital costs, predicted expenses, price forecasts and metallurgical recovery estimates.
293.47(1)(b)
(b) "Geologic information" means information concerning descriptions of an ore body, descriptions of reserves, tonnages and grades of ore, descriptions of a drill core or bulk sample including analysis, descriptions of drill hole depths, distances and similar information related to the ore body.
293.47(1)(c)
(c) "Prospecting data" means data, records and other information furnished to or obtained by the department in connection with the application for a prospecting permit.
293.47(2)
(2) Prospecting data in general. Except as provided under
sub. (3), prospecting data are public records subject to
subch. II of ch. 19.
293.47(3)(a)(a)
Request for confidential status. An applicant for a prospecting permit may request confidential status for any prospecting data.
293.47(3)(b)
(b)
Confidential status. The department shall grant confidential status to prospecting data if the applicant makes a request and if the prospecting data relates to economic information or geologic information or is entitled to confidential status under rules promulgated by the department.
293.47 History
History: 1973 c. 318;
1979 c. 221;
1981 c. 86;
1981 c. 335 s.
26;
1995 a. 227 s.
795; Stats. 1995 s. 293.47.
293.49
293.49
Mining; department grant or denial of permit. 293.49(1)(a)(a) Except as provided in
sub. (2) and
s. 293.50 and except with respect to property specified in
s. 41.41 (11), within 90 days of the completion of the public hearing record, the department shall issue the mining permit if it finds:
293.49(1)(a)1.
1. The mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site consistent with this chapter and any rules adopted under this chapter and the department has approved the mining plan.
293.49(1)(a)2.
2. The proposed operation will comply with all applicable air, groundwater, surface water and solid and hazardous waste management laws and rules of the department.
293.49(1)(a)3.
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. 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. 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.
293.49(1)(a)4.
4. The proposed mine will not endanger public health, safety or welfare.
293.49(1)(a)5.
5. The proposed mine will result in a net positive economic impact in the area reasonably expected to be most impacted by the activity.
293.49(1)(a)6.
6. The proposed mining operation conforms with all applicable zoning ordinances.
293.49(1)(b)
(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 this chapter, and, as modified, grant its approval.
293.49(2)
(2) Within 90 days of the completion of the public hearing record, the department shall deny the mining permit if it finds any of the following:
293.49(2)(a)
(a) That the site is unsuitable for surface mining, if the application is for a proposed surface mine.
293.49(2)(b)
(b) That the applicant has violated and continues to fail to comply with this chapter or any rule adopted under this chapter.
293.49(2)(c)
(c) That the applicant, principal shareholder of the applicant or a related person has within 10 years before the application is submitted forfeited a mining reclamation bond that was posted in accordance with a permit or other approval for a mining operation in the United States, unless the forfeiture was by agreement with the entity for whose benefit the bond was posted and the amount of the bond was sufficient to cover all costs of reclamation.
293.49(2)(d)
(d) That the applicant, a related person or an officer or director of the applicant has, within 10 years before the application is submitted, been convicted of more than one felony for violations of laws for the protection of the natural environment arising out of the operation of a mining site in the United States, unless one of the following applies:
293.49(2)(d)1.
1. The person convicted has been pardoned for all of the felonies.
293.49(2)(d)2.
2. The person convicted is a related person or an officer or director of the applicant with whom the applicant terminates its relationship.
293.49(2)(d)3.
3. The applicant included in its permit application under
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.
293.49(2)(e)
(e) That the applicant or a related person has, within 10 years before the application is submitted, declared bankruptcy or undergone dissolution that resulted in the failure to reclaim a mining site in the United States in violation of a state or federal law and that failure has not been remedied and is not being remedied.
293.49(2)(f)
(f) That, within 10 years before the application is submitted, a mining permit or other mining approval issued to the applicant or a related person was permanently revoked because of a failure to reclaim a mining site in the United States in violation of state or federal law and that failure has not been and is not being remedied.
293.49(3)
(3) The department may not deny a mining permit under
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.
293.49(4)
(4) The prior issuance of a prospecting permit under
s. 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.
293.49(5)
(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 this chapter, to the applicant and to the other parties.
293.49(7)
(7) The department, in granting a permit under this section, shall require the permit holder to perform adequate monitoring of environmental changes during the course of the permitted activity and for such additional period of time as is necessary to satisfactorily complete reclamation and completely release the permit holder from any bonds required.
293.49(8)
(8) No operator may engage a general contractor or affiliate to operate a mining site if the general contractor or affiliate has been convicted of more than one felony for violation of a law for the protection of the natural environment arising out of the operation of a mining site in the United States within 10 years before the issuance of the operator's permit, unless the general contractor or affiliate receives the department's approval of a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.
293.49 History
History: 1995 a. 227 s.
771,
773,
777,
778,
779,
994;
1997 a. 171.
293.49 Cross-reference
Cross Reference: See also ch.
NR 182, Wis. adm. code.
293.50
293.50
Moratorium on issuance of permits for mining of sulfide ore bodies. 293.50(1)(a)
(a) "Pollution" means degradation that results in any violation of any environmental law as determined by an administrative proceeding, civil action, criminal action or other legal proceeding. For the purpose of this paragraph, issuance of an order or acceptance of an agreement requiring corrective action or a stipulated fine, forfeiture or other penalty is considered a determination of a violation, regardless of whether there is a finding or admission of liability.
293.50(1)(b)
(b) "Sulfide ore body" means a mineral deposit in which metals are mixed with sulfide minerals.
293.50(2)
(2) Beginning on May 7, 1998, the department may not issue a permit under
s. 293.49 for the mining of a sulfide ore body until all of the following conditions are satisfied:
293.50(2)(a)
(a) The department determines, based on information provided by an applicant for a permit under
s. 293.49 and verified by the department, that a mining operation has operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals.
293.50(2)(b)
(b) The department determines, based on information provided by an applicant for a permit under
s. 293.49 and verified by the department, that a mining operation that operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada has been closed for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals.
293.50(2m)(a)(a) The department may not base its determination under
sub. (2) (a) or
(b) on any mining operation that has been listed on the national priorities list under
42 USC 9605 (a) (8) (B) or any mining operation for which the operator is no longer in business and has no successor that may be liable for any contamination from the mining operation and for which there are no other persons that may be liable for any contamination from the mining operation.
293.50(2m)(b)
(b) The department may not base its determination under
sub. (2) (a) or
(b) on a mining operation unless the department determines, based on relevant data from groundwater or surface water monitoring, that the mining operation has not caused significant environmental pollution, as defined in
s. 293.01 (4), from acid drainage at the tailings site or at the mine site or from the release of heavy metals.
293.50(3)
(3) This section applies without regard to the date of submission of the permit application.
293.50 History
History: 1997 a. 171.
293.51(1)(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 this chapter and all rules adopted by the department under 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.
293.51(2)
(2) The applicant shall submit a certificate of insurance certifying that the applicant has in force a liability insurance policy issued by an insurer authorized to do business in this state, or in lieu of a certificate of insurance evidence that the applicant has satisfied state or federal self-insurance requirements, covering all mining operations of the applicant 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.
293.51(3)
(3) Upon approval of the operator's bond, mining application and certificate of insurance, the department shall issue written authorization to commence mining at the permitted mining site in accordance with the approved mining and reclamation plans.
293.51(4)
(4) Any operator who obtains mining permits from the department for 2 or more mining sites may elect, at the time the 2nd or any subsequent site is approved, to post a single bond in lieu of separate bonds on each site. Any single bond so posted shall be in an amount equal to the estimated cost to the state determined under
sub. (1) of reclaiming all sites the operator has under mining permits. When an operator elects to post a single bond in lieu of separate bonds previously posted on individual sites, the separate bonds may not be released until the new bond has been accepted by the department.
293.51(6)
(6) Any person who is engaged in mining on July 3, 1974 need not file a bond or deposit cash, certificates of deposits or government securities with the department under this section to obtain the written authorization to commence mining under
sub. (3).
293.53
293.53
Review of permits; periodic reports. 293.53(1)(a)(a) Eighteen months after the issuance of a prospecting permit, and annually thereafter until prospecting ceases, the department shall review the permit, reclamation plan and bond to ascertain adequacy, compliance with state or federal laws enacted after the issuance of the permit and technological currency. If the department after review determines that the plan should be modified or the bond amount changed, it shall notify the permit holder of the necessary modifications or changes. If the permit holder does not request a hearing within 30 days, the modifications or changes shall be deemed accepted.
