City of Muskego, WI Chapter 237 Mining, Nonmetallic

[HISTORY: Adopted by the Common Council of the City of Muskego 7-12-2007 by Ord. No. 1256 (Ch. 38 of the 1964 Code). Amendments noted where applicable.]

§ 237-1 General provisions.

A. Title. This chapter shall be known as the "Nonmetallic Mining Reclamation Ordinance for the City of Muskego."[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

B. Purpose. The purpose of this chapter is to establish a local program to ensure the effective reclamation of nonmetallic mining sites on which nonmetallic mining takes place in the City of Muskego after the effective date of this chapter, in compliance with Ch. NR 135, Wis. Adm. Code, and Subchapter I of Ch. 295, Wis. Stats.

C. Statutory authority. This chapter is adopted under authority of § 295.14(1), Wis. Stats., § NR 135.32, Wis. Adm. Code, and § 62.11(3), Wis. Stats.

D. Restrictions adopted under other authority. The purpose of this chapter is to adopt and implement the uniform statewide standards for nonmetallic mining required by § 295.12(1)(a), Wis. Stats., and contained in Ch. NR 135, Wis. Adm. Code. It is not intended that this chapter repeal, abrogate, annul, impair or interfere with any existing rules, regulations, ordinances or permits not concerning nonmetallic mining reclamation previously adopted pursuant to other Wisconsin law. If any other ordinance is in conflict with the terms of this chapter, the terms of this chapter shall apply.

E. Interpretation. In their interpretation and application, the provisions of this chapter shall be held to be the applicable requirements for nonmetallic mining reclamation and shall not be deemed a limitation or repeal of any other power granted by the Wisconsin Statutes outside the reclamation requirements for nonmetallic mining sites required by Subchapter I of Ch. 295, Wis. Stats., and Ch. NR 135, Wis. Adm. Code. Where any terms or requirements of this chapter may be inconsistent or conflicting, the more restrictive requirements or interpretation shall apply. Where a provision of this chapter is required by Wisconsin Statutes, or by a standard in Ch. NR 135, Wis. Adm. Code, and where the provision is unclear, the provision shall be interpreted to be consistent with the Wisconsin Statutes and the provisions of Ch. NR 135, Wis. Adm. Code.

F. Applicability.

(1) Overall applicability. The requirements of this chapter apply to all operators of nonmetallic mining sites within the City of Muskego and as provided in § NR 135.02(1) and (2), Wis. Adm. Code, except where exempted in Subsection F(2).

(2) Exemptions. This chapter does not apply to the exempt activities listed in § NR 135.02(3), Wis. Adm. Code.

G. Administration. The provisions of this chapter shall be administered by the City Planning Division, unless otherwise specified.

H. Effective date. The provisions of this chapter shall take effect on December 1, 2006.

I. Definitions. All definitions for the purposes of this chapter are those contained in § NR 135.03, Wis. Adm. Code.

§ 237-2 Standards.

All nonmetallic mining sites subject to this chapter shall be reclaimed in conformance with the standards contained in Subchapter II of Ch. NR 135, Wis. Adm. Code.

§ 237-3 Permit procedure; reclamation plan.

A. Nonmetallic mining reclamation permit application required. No person may engage in nonmetallic mining or in nonmetallic mining reclamation without possessing a nonmetallic mining reclamation permit issued pursuant to this chapter unless the activity is specifically exempted in § 237-1F(1) or (2).[1]

(1) Required submittal. The operators of all nonmetallic mining sites shall apply for a reclamation permit from the City of Muskego. All reclamation permit applications under this section shall be accompanied by the information required by § NR 135.18(1), Wis. Adm. Code.

(2) Reclamation permit application contents. The operator of any nonmetallic mine site shall submit an application that meets the requirements of § NR 135.18(2), Wis. Adm. Code, and the submittals required under Subsection A(1) to the City Planning Division prior to beginning operations.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

B. Reclamation plan.

(1) Reclamation plan requirements. All operators of nonmetallic mining sites subject to this chapter shall prepare and submit a reclamation plan that meets the requirements of § NR 135.19, Wis. Adm. Code.

(2) Existing plans and approvals. To avoid duplication of effort, the reclamation plan required by Subsection B(1) may, by reference, incorporate existing plans or materials that meet the requirements of this chapter.

(3) Approval of reclamation plan. The City of Muskego Plan Commission shall approve, conditionally approve, or deny the reclamation plan submitted under this section in writing as part of permit issuance pursuant to Subsection E(2). Conditional approvals of reclamation plans shall be made according to Subsection E(5), and denials of reclamation plans made according to Subsection F. The City shall keep a copy of the reclamation plan required by this section on file in perpetuity once approved under this chapter.

C. Financial assurance.

(1) Financial assurance requirements. All operators of nonmetallic mining sites in the City of Muskego shall prepare and submit a proof of financial assurance of successful reclamation that meets the requirements of § NR 135.40, Wis. Adm. Code.

(2) Private nonmetallic mines. The operator of any nonmetallic mining site that applies for a reclamation permit in conformance with Subsection A(2) shall submit the proof of financial assurance required by Subsection C(1) as specified in the reclamation permit issued to it under this chapter.

(3) Public nonmetallic mining. The financial assurance requirements of this section do not apply to nonmetallic mining conducted by the State of Wisconsin, a state agency, board, commission or department, or a municipality.

D. Public notice and right of hearing.

(1) Reclamation plan hearing. The City of Muskego shall provide public notice and the opportunity for a public informational hearing as set forth in § NR 135.20(1) and (2), Wis. Adm. Code, for any nonmetallic mining site for which a complete reclamation permit application that satisfies Subsection A is received.

(2) Local transportation-related mines. No public notice or informational hearing is required for a nonmetallic mining reclamation permit issued to a local transportation-related mine pursuant to Subsection E(3).

E. Issuance of a nonmetallic mining reclamation permit.

(1) Permit required. Every operator of a nonmetallic mining site in the City of Muskego who engages in or plans to engage in nonmetallic mining after September 1, 2001, shall obtain a reclamation permit issued under this section, except nonmetallic mining sites exempt from this chapter as provided in § 237-1F(2). No person may engage in nonmetallic mining or nonmetallic mining reclamation after September 1, 2001, without a reclamation permit issued pursuant to this chapter.

(2) Permit issuance. Applications for reclamation permits for nonmetallic mining sites that satisfy Subsection A shall be issued a reclamation permit or otherwise acted on as provided in § NR 135.21(2), Wis. Adm. Code. The permit shall require compliance with a reclamation plan submitted by the applicant that conforms to Subsection B(1) and provision by the applicant of financial assurance that conforms to Subsection C payable to the City prior to beginning mining.

(3) Automatic permit for local transportation-related mines. The City of Muskego shall issue an automatic permit under this subsection for any borrow site operated to provide material for a locally administered transportation project that meets the criteria in § NR 135.23(1)(a), Wis. Adm. Code. This automatic permit shall be issued according to the provisions of § NR 135.23(1)(b) through (j), Wis. Adm. Code.

(4) Expedited review. Any operator of a nonmetallic mining site may obtain an expedited review of a reclamation permit application by paying the expedited review fee specified in § 237-4D(2). The expedited review shall be carried out according to the provisions of § NR 135.23(1), Wis. Adm. Code. Such expedited review shall not waive, shorten or otherwise affect the public notice and right of hearing pursuant to Subsection D.

(5) Permit conditions. Permits issued under this section may include conditions as provided in § NR 135.21(2), Wis. Adm. Code. One required condition shall be that new mines shall obtain financial assurance prior to beginning mining pursuant to § NR 135.40, Wis. Adm. Code.

F. Permit denial. An application for a nonmetallic mining reclamation permit shall be denied if any of the factors specified in § NR 135.22, Wis. Adm. Code, exist.

G. Alternative requirements.

(1) Scope of alternative requirements approvable. An operator of a nonmetallic mining site may request an alternative requirement to any reclamation standard established in § 237-2. Such a request may be made only on the basis of the criteria set forth in § NR 135.26(1), Wis. Adm. Code.

(2) Procedures. The operator of a nonmetallic mining site requesting an alternate requirement in Subsection G(1) shall demonstrate all the criteria in § NR 135.26(1), Wis. Adm. Code. This shall be submitted in writing to the City of Muskego Plan Commission. The Plan Commission shall review and determine by simple majority, under the authority granted by § 62.23, Wis. Stats., the appropriateness of the requested alternate requirements.

(3) Transmittal of decision on request for alternate requirements. The decision on a request for alternative reclamation requirements shall be in writing to the applicant and shall include documentation of why the alternative requirement was or was not approved.

(4) Notice to Wisconsin Department of Natural Resources. The City of Muskego shall provide notice to the Wisconsin Department of Natural Resources as provided in § NR 135.26(3)(a), Wis. Adm. Code.

H. Permit duration. A nonmetallic mining reclamation permit issued under this chapter shall last through operation and reclamation of the nonmetallic mining site, unless suspended or revoked pursuant to § 237-5B(2), or as limited under § NR 135.27, Wis. Adm. Code, where the mine operator is not the landowner.

I. Permit transfer. A nonmetallic mining reclamation permit issued under this chapter shall be transferred to a new owner or operator upon satisfaction of the conditions in § NR 135.28, Wis. Adm. Code.

J. Review. Any permitting decision or action made by the City of Muskego under this chapter may be reviewed as set forth in § NR 135.30, Wis. Adm. Code.

§ 237-4 Administration.

A. Permit modification.

(1) By the City of Muskego. A nonmetallic mining reclamation permit issued under this chapter may be modified by the City of Muskego if it finds that, due to changing conditions, the nonmetallic mining site is no longer in compliance with this chapter. Such modification shall be by an order conforming with the procedures in § 237-5B and as provided in § NR 135.24(1), Wis. Adm. Code.

(2) At the operator's option. If the operator of any nonmetallic mine that holds a reclamation permit issued under this chapter desires to modify such permit or reclamation plan approved under this chapter, it may request such modification by submitting a written application for such modification to the City of Muskego Planning Division. The application for permit or plan modification shall be acted on using the standards and procedures of this chapter.

(3) Required by the operator. The operator of any nonmetallic mine that holds a reclamation permit issued under this chapter shall request a modification of such permit if required under the circumstances set out in § NR 135.27, Wis. Adm. Code. Such application for permit modification shall be acted on using the standards and procedures of this chapter.

(4) Review. All actions on permit modifications requested or initiated under this section are subject to review under § 237-3J.

B. Permit suspension or revocation.

(1) Grounds. The City of Muskego may suspend or revoke a nonmetallic mining reclamation permit issued pursuant to this chapter if it finds any of the grounds listed in § NR 135.25(1), Wis. Adm. Code.

(2) Procedures. If the City of Muskego finds grounds for suspending or revoking a nonmetallic mining reclamation permit set forth in Subsection B(1), it may issue a special order suspending or revoking such permit as set forth in § 237-5B(2).

(3) Consequences. The consequences of a reclamation permit suspension or revocation order under Subsection B(2) shall be as set forth in § NR 135.25(2) and (3), Wis. Adm. Code.

C. Annual operator reporting.

(1) Contents and deadline. Annual reports shall be submitted by the operators of nonmetallic mining sites that satisfy the requirements of § NR 135.36, Wis. Adm. Code. These reports shall be for reclamation during a calendar year and submitted in writing to the City of Muskego Planning Division. Annual reports shall be submitted until reclamation at each nonmetallic mining site is certified as complete under Subsection G(3).

(2) Inspection in lieu of report. The City of Muskego may, at its discretion, obtain the information required in Subsection C(1) by written documentation of an inspection it completes during a calendar year, as set forth in § NR 135.36(4), Wis. Adm. Code.

(3) Retention of annual reports. Annual reports submitted under this section or inspection records that replace them shall be retained by the City of Muskego as outlined in the City's Records Retention Policy, but not less than 10 years. These records, or accurate copies of them, shall be made available to the Wisconsin Department of Natural Resources upon written request or during its inspection or audit activities carried out pursuant to Ch. NR 135, Wis. Adm. Code.

D. Plan review fees.

(1) Amount and applicability. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under § 237-3A shall submit a nonrefundable plan review fee as specified from time to time by resolution of the Common Council. Fees shall be submitted to the City of Muskego Planning Division. No plan review fee may be assessed under this section for any local transportation-related mine issued an automatic permit under § 237-3E(3). A separate plan review fee shall be paid under this section for any modification to an existing reclamation plan submitted pursuant to Subsection A.

(2) Expedited plan review fee. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under § 237-3A may obtain expedited reclamation plan review by paying a fee equal to two times the amount establish by resolution of the Common Council in Subsection D(1). Such fee shall be in addition to that required in Subsection D(1).

(3) Relation to annual fee. Any reclamation plan review fee or expedited reclamation plan review fee collected under this section shall be added to and collected as part of the first annual fee collected under Subsection E.

E. Annual fees.

(1) Areas subject to fees; procedures, deadline and amount. Operators of all nonmetallic mining sites subject to reclamation permits issued under this chapter shall submit fees as required in this chapter to the City of Muskego Planning Division. These fees shall be calculated based on amount of unreclaimed acres of each site, as defined in § NR 135.39(1)(a), Wis. Adm. Code, and according to its provisions. Such fees apply to a calendar year or any part of a year in which nonmetallic mining takes place, until final reclamation is certified as complete under Subsection G. Fees shall be paid no later than January 31 for the previous year. Fees shall be submitted with a form specified by the City of Muskego Planning Division.

(2) Wisconsin Department of Natural Resources share of fee. Fees paid under this section shall include a share for the Wisconsin Department of Natural Resources equal to the amount specified in § NR 135.39(3), Wis. Adm. Code. For sites on which no nonmetallic mining has taken place during a calendar year, fees to be paid under this subsection for the following year shall be as prescribed in § NR 135.39(6)(b), Wis. Adm. Code. The City of Muskego shall forward fees collected under this subsection to the Wisconsin Department of Natural Resources by March 31.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(3) City of Muskego's share of fee.

(a) Fees paid under this section shall also include an annual fee due to the City of Muskego as shall be established from time to time by resolution of the Common Council. Forms and fees shall be submitted to the City of Muskego Planning Division office at the Muskego City Hall, W182 S8200 Racine Avenue, Muskego, Wisconsin.

(b) The annual fee collected by the City of Muskego under this subsection for local transportation-related mines issued permits under § 237-3E(3) may not exceed the amounts set forth in Table 2 of § NR 135.39, Wis. Adm. Code, and shall include a share for both the Wisconsin Department of Natural Resources and the City of Muskego.

(4) Reduced fee for inactive mines. Any site on which no nonmetallic mining activity has taken place in a calendar year shall be assessed a fee for the following calendar year equal to 1/2 the per-acre fee outlined in Subsection E(3).

F. Regulatory reporting and documentation.

(1) Reporting. The City shall send an annual report to the Wisconsin Department of Natural Resources including the information required by § NR 135.37, Wis. Adm. Code, by March 31 for the previous calendar year.

(2) Documentation. The City of Muskego shall, to the best of its ability, maintain the information set forth in § NR 135.47(3), Wis. Adm. Code, and make it available to the Wisconsin Department of Natural Resources for that agency's audit of the City of Muskego's reclamation program pursuant to § NR 135.47, Wis. Adm. Code.

G. Completed reclamation; reporting, certification and effect.

(1) Reporting. The operator of a nonmetallic mining site may certify completion of reclamation for a portion or the entire nonmetallic mining site pursuant to a reclamation plan prepared and approved pursuant to this chapter and Ch. NR 135, Wis. Adm. Code. Reports should be filed with the City Planning Division office at the Muskego City Hall, W182 S8200 Racine Avenue, Muskego, Wisconsin.

(2) Reporting of interim reclamation. The operator of a nonmetallic mining site may report completion of interim reclamation as specified in the reclamation plan for the site prepared and approved pursuant to this chapter and Ch. NR 135, Wis. Adm. Code. Reporting of interim reclamation shall be done according to the procedures in Subsection G(1).

(3) Certification of completed reclamation. The City of Muskego shall inspect a nonmetallic mining site for which reporting of reclamation or interim reclamation has been submitted pursuant to this subsection within 60 days of receipt and make a determination in writing in accordance with § NR 135.40(7)(c), Wis. Adm. Code. If it is determined that interim or final reclamation is complete, including revegetation as specified in a plan that conforms to § 237-3B, the City of Muskego shall issue the mine operator a written certificate of completion.

(4) Effect of completed reclamation. If reclamation is certified by the City of Muskego as complete under Subsection G(3) for part or all of a nonmetallic mining site, then:

(a) No fee shall be assessed under Subsection E for the area so certified.

(b) The financial assurance required by § 237-3C shall be released.

(5) Effect of inaction following report of completed reclamation. If no written response as required by Subsection G(3) for an area of the mine site reported as reclaimed or interim reclaimed is given within 60 days of receiving such request, any annual fee paid to the City for it under Subsection E shall be refunded.

H. Permit termination. When all final reclamation required by a reclamation plan conforming to § 237-3B and required by this chapter is certified as complete pursuant to Subsection G(3), the City of Muskego shall issue a written statement to the operator of the nonmetallic mining site, thereby terminating the reclamation permit.

§ 237-5 Enforcement; violations and penalties.

A. Right of entry and inspection. For the purpose of ascertaining compliance with the provisions of Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, or this chapter, any authorized officer, agent, employee or representative of the City of Muskego may inspect any nonmetallic mining site subject to this chapter as provided in § 295.17(1), Wis. Stats., and § NR 135.42, Wis. Adm. Code.

B. Orders and citations.

(1) Enforcement orders. The City of Muskego may issue orders as set forth in § 295.19(1)(a), Wis. Stats., to enforce Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by § 237-3B and a permit issued under this chapter. A violation of this chapter, an order or permit issued pursuant to this chapter or a reclamation plan required by § 237-3B and a permit issued under this chapter shall be considered a violation of Subchapter I of Ch. 295, Wis. Stats., and Ch. NR 135, Wis. Adm. Code.

(2) Special orders. The City of Muskego may issue a special order as set forth in § 295.19(1)(b) and (c), Wis. Stats., suspending or revoking a nonmetallic mining reclamation permit pursuant to § 237-4B or directing an operator to immediately cease an activity regulated under Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, or this chapter until the necessary plan approval is obtained.

(3) Review of orders. An order issued under Subsection B(1) or (2) may be reviewed as provided in § NR 135.43(2), Wis. Adm. Code.

(4) Citations. The City of Muskego may issue a citation under § 66.0113, Wis. Stats., and § 1-4, City of Muskego Code, and collect forfeitures or require any action needed to enforce Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by § 237-3B and a permit issued under this chapter. The issuance of a citation under this subsection shall not preclude proceeding under any other ordinance or law relating to the same or any other matter. Proceeding under any other ordinance or law relating to the same or any other matter shall not preclude the issuance of a citation under this subsection.

(5) Enforcement. The City of Muskego may submit any order issued under this Subsection B to the District Attorney, the Corporation Counsel, the Municipal Attorney or the Attorney General for enforcement as provided in § 295.19(1)(d), Wis. Stats.

C. Penalties. Any violation of Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by § 237-3B and a permit issued under this chapter may result in forfeitures as provided in § 295.19(3), Wis. Stats., and § 1-4, City of Muskego Code.