ORD20071256chap38
COMMON COUNCIL - CITY OF MUSKEGO
ORDINANCE #1256
AN ORDINANCE REPEAL AND RECREATE CHAPTER 38
OF THE MUNICIPAL CODE OF THE CITY OF MUSKEGO
(Nonmetallic Mining)
The Common Council of the City of Muskego, Waukesha County, Wisconsin, do ordain as
follows:
SECTION 1: Chapter 38 is hereby repealed and recreated to read as follows:
CITY OF MUSKEGO
CHAPTER 38
CODE FOR NONMETALLIC MINING RECLAMATION
(Ord. #1069 - 05-31-2001)
38.01 GENERAL
(1) Title.
Nonmetallic mining reclamation ordinance for the City of Muskego.
(2) 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
Chapter NR 135, Wis. Adm. Code and Subchapter I of Chapter 295, Wisconsin
Statutes.
(3) Statutory Authority.
This chapter is adopted under authority of Section 295.14(1), Wisconsin Statutes,
Section NR 135.32, Wis. Adm. Code, and §62.11(3), Wisconsin Statutes.
(4) Restrictions Adopted Under Other Authority.
The purpose of this chapter is to adopt and implement the uniform statewide
standards for Nonmetallic mining required by Section 295.12(1)(a), Stats., and
contained in Chapter NR 135, Wis. Adm. Code. It is not intended that this chapter
repeal, abrogate, annul, impair or interfere with any existing rules, regulation,
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 code, the terms of this code shall apply.
(5) 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 Chapter 295, Wisconsin Statutes and Chapter
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 Chapter 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 Chapter NR 135, Wis. Adm. Code.
(6) Severability.
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Should any position of this chapter be declared unconstitutional or invalid by a
court of competent jurisdiction, the remainder of this chapter shall not be
affected.
(7) Applicability.
(a) Overall Applicability. The requirements of this chapter apply to all
operators of Nonmetallic mining sites within the City of Muskego and as
provided in Sections NR 135.02(1) and (2), Wis. Adm. Code except where
exempted in sub. 38.01(7)(b).
(b) Exemptions. This chapter does not apply to the exempt activities listed in
Section NR 135.02(3), Wis. Adm. Code.
(8) Administration.
The provisions of this chapter shall be administered by the City Planning
Department, unless otherwise specified.
(9) Effective Date.
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The provisions of this chapter shall take effect on December 1, 2006.
(10) Definitions.
All definitions for the purposes of this chapter are those contained in Section NR
135.03, Wis. Adm. Code.
38.02 STANDARDS
(1) Standards.
All Nonmetallic mining sites subject to this chapter shall be reclaimed in
conformance with the standards contained in Subchapter II of Chapter NR 135,
Wis. Adm. Code.
38.03 PERMITTING
(1) 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 the
applicable reclamation ordinance unless the activity is specifically exempted in
subs. 38.01(6)(a) or 38.01(6)(b).
(a) Required Submittal. The operator 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 Section NR 135.18(1), Wis. Adm. Code.
(b) Reclamation Permit Application Contents. The operator of any
Nonmetallic mine site shall submit an application that meets the
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requirements of Sections NR 135.18(2), Wis. Adm. Code and the
submittals required under sub. 38.03(1)(a) to the City Planning
Department prior to beginning operations.
(2) Reclamation Plan.
(a) 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 Section NR 135.19, Wis. Adm. Code.
(b) Existing Plans and Approvals. To avoid duplication of effort, the
reclamation plan required by sub. 38.03(2)(a) may, by reference,
incorporate existing plans or materials that meet the requirements of this
chapter.
(c) 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 sub. 38.03(5)(b). Conditional approvals of reclamation plans shall be
made according to sub. 38.03(5)(e), and denials of reclamation plans
made according to s. 38.03(6). The City shall keep a copy of the
reclamation plan required by this section on file in perpetuity once
approved under this chapter.
(3) Financial Assurance.
(a) 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
Section 135.40, Wis. Adm. Code.
(b) Private Nonmetallic Mines. The operator of any Nonmetallic mining site
that applies for a reclamation permit in conformance with sub. 38.03(1)(b)
shall submit the proof of financial assurance required by sub. 38.03(3)(a)
as specified in the reclamation permit issued to it under this chapter.
(c) 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.
(4) Public Notice and Right of Hearing.
(a) Reclamation Plan Hearing. The City of Muskego shall provide public
notice and the opportunity for a public informational hearing as set forth in
Sections NR 135.20(1) and (2), Wis. Adm. Code for any Nonmetallic
mining site for which a complete reclamation permit application that
satisfies sub. 38.03(1) is received.
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(b) 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 sub. 38.03(5)(c).
(5) Issuance of a Nonmetallic Mining Reclamation Permit.
(a) 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 sub 38.01(7)(b). No person may engage in Nonmetallic mining
or Nonmetallic mining reclamation after September 1, 2001, without a
reclamation permit issued pursuant to this chapter.
(b) Permit Issuance. Applications for reclamation permits for Nonmetallic
mining sites that satisfy sub. 38.03(1) shall be issued a reclamation permit
or otherwise acted on as provided in Section NR 135.21(2), Wis. Adm.
Code. The permit shall require compliance with a reclamation plan
submitted by the applicant that conforms with sub. 38.03(2)(a), and
provision by the applicant of financial assurance that conforms with sub.
38.03(3) payable to the City prior to beginning mining.
(c) 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 Section NR 135.23(1)(a),
Wis. Adm. Code. This automatic permit shall be issued according to the
provisions of Sections NR 135.23(1)(b) through (j), Wis. Adm. Code.
(d) 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 s. 38.04(3)(b). The expedited review
shall be carried out according to the provisions of Section 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 s.
38.03(4).
(e) Permit Conditions. Permits issued under this section may include
conditions as provided in Section 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 Section NR 135.40, Wis. Adm. Code.
(6) Permit Denial.
An application for a Nonmetallic mining reclamation permit shall be denied if any
of the factors specified in Section NR 135.22, Wis. Adm. Code exist.
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(7) Alternative Requirements.
(a) Scope of Alternative Requirements Approvable. An operator of a
Nonmetallic mining site may request an alternative requirement to any
reclamation standard established in s. 38.02(1). Such a request may be
made only on the basis of the criteria set forth in Section NR 135.26(1),
Wis. Adm. Code.
(b) Procedures. The operator of a Nonmetallic mining site requesting an
alternate requirement in sub. 38.03(7)(a) shall demonstrate all the criteria
in Section NR 135.26(1), Wis. Adm. Code. This shall be submitted in
writing to the City of Muskego Planning Commission. The Plan
Commission shall review and determine by simple majority, under the
authority granted by s. 62.23 Stats., the appropriateness of the requested
alternate requirements.
(c) 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.
(d) Notice to Wisconsin Department of Natural Resources. The City of
Muskego shall provide notice to the Wisconsin Department of Natural
Resources as provided in Section NR 135.26(3)(a), Wis. Adm. Code.
(8) 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 sub. 38.05(2)(b), or as limited under Section
NR 135.27, Wisconsin Administrative Code where the mine operator is not the
landowner.
(9) 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
Section NR 135.28, Wis. Adm. Code.
(10) Review.
Any permitting decision or action made by the City of Muskego under this chapter
may be reviewed as set forth in Section NR 135.30, Wis. Adm. Code.
38.04 ADMINISTRATION
(1) Permit Modification.
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(a) 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 s. 38.05(2) and as provided in Section
NR 135.24(1), Wis. Adm. Code.
(b) At the Operator’s Option. If 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 Department. The application for permit or plan
modification shall be acted on using the standards and procedures of this
chapter.
(c) 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
Section NR 135.27, Wis. Adm. Code. Such application for permit
modification shall be acted on using the standards and procedures of this
chapter.
(d) Review. All actions on permit modifications requested or initiated under
this section are subject to review under s. 38.03(10).
(2) Permit Suspension or Revocation.
(a) 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 Section NR 135.25(1), Wis. Adm. Code.
(b) Procedures. If the City of Muskego finds grounds for suspending or
revoking a Nonmetallic mining reclamation permit set forth in sub.
38.04(3)(a), it may issue a special order suspending or revoking such
permit as set forth in sub. 38.05(2)(b).
(c) Consequences. The consequences of a reclamation permit suspension or
revocation order under sub. 38.04(2)(b) shall be as set forth in Sections
NR 135.25(2) and (3), Wis. Adm. Code.
(3) Annual Operator Reporting.
(a) Contents and Deadline. Annual reports shall be submitted by the
operators of Nonmetallic mining sites that satisfy the requirements of
Section 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 Department. Annual reports shall be submitted until reclamation
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at each Nonmetallic mining site is certified as complete under sub.
38.04(7)(c).
(b) Inspection in Lieu of Report. The City of Muskego may, at its discretion,
obtain the information required in sub. 38.04(3)(a) by written
documentation of an inspection it completes during a calendar year, as set
forth in Section NR 135.36(4), Wis. Adm. Code.
(c) 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 ten (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 Chapter NR 135, Wis. Adm. Code.
(4) Plan Review Fees.
(a) Amount and Applicability. A person who intends to operate a Nonmetallic
mining site for which a permit application has been submitted under sub.
38.03(1) shall submit a non-refundable 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 Department. No plan review
fee may be assessed under this section any local transportation-related
mine issued an automatic permit under sub. 38.03(5)(c). A separate plan
review fee shall be paid under this section for any modification to an
existing reclamation plan submitted pursuant to s. 38.04(1).
(b) Expedited Plan Review Fee. A person who intends to operate a
Nonmetallic mining site for which a permit application has been submitted
under sub. 38.03(1) may obtain expedited reclamation plan review by
paying a fee equal to two (2) times the amount establish by Resolution of
the Common Council in sub. 38.04(4)(a). Such fee shall be in addition to
that required in sub. 38.04(4)(a).
(c) 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 s. 38.04(5).
(5) Annual Fees.
(a) 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 Department. These fees shall be calculated based on
amount of un-reclaimed acres of each site, as defined in Section 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
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takes place, until final reclamation is certified as complete under s.
38.04(7). 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 Department.
(b) 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 Section 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 section for the
following year shall be $15.00. City of Muskego shall forward fees
collected under this subsection to the Wisconsin Department of Natural
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Resources by March 31.
(c) City of Muskego’s Share of Fee.
1. 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 Department’s office at
the Muskego City Hall, W182 S8200 Racine Ave., Muskego, WI.
2. The annual fee collected by the City of Muskego under this
subsection for local transportation-related mined issued permits
under sub. 38.03(5)(c) may not exceed the amounts set forth in
Table 2 of Section NR 135.39 and shall include both a share for the
Wisconsin Department of natural Resources and the City of
Muskego.
(d) 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 one-half (1/2) the per acre fee outlined in
sub. 38.04(5)(c).
(6) Regulatory Reporting and Documentation.
(a) Reporting. The City shall send an annual report to the Wisconsin
Department of Natural Resources including the information required by
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Section NR 135.37, Wis. Adm. Code by March 31 for the previous
calendar year.
(b) Documentation. The City of Muskego shall, to the best of its ability,
maintain the information set forth in Section 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 Section NR 135.47, Wis. Adm. Code.
(7) Completed Reclamation - Reporting, Certification and Effect
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(a) 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 Chapter NR 135, Wis. Adm. Code. Reports should be
filed with the City Planning Department’s office at the Muskego City Hall,
W182 S8200 Racine Ave., Muskego, WI
(b) 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 Chapter NR 135, Wis. Adm. Code. Reporting of interim
reclamation shall be done according to the procedures in sub. 38.04(7)(a).
(c) 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
Section NR 135.40(7)(c), Wis. Adm. Code. If it is determined that interim
or final reclamation is complete, including re-vegetation as specified in a
plan that conforms with s. 38.03(2), the City of Muskego shall issue the
mine operator a written certificate of completion.
(d) Effect of Completed Reclamation. If reclamation is certified by the City of
Muskego as complete under sub. 38.04(7)(c) for part or all of a
Nonmetallic mining site, then:
1. No fee shall be assessed under s. 38.04(5) for the area so certified.
2. The financial assurance required by s. 38.03(3) shall be released.
(e) Effect of Inaction Following Report of Completed Reclamation. If no
written response as required by sub. 38.04(7)(c) 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 s.
38.04(5) shall be refunded.
(8) Permit Termination.
When all final reclamation required by a reclamation plan conforming to s.
38.03(2) and required by this chapter is certified as complete pursuant to sub.
38.04(7)(c), the City of Muskego shall issue a written statement to the operator of
the Nonmetallic mining site, thereby terminating the reclamation permit.
38.05 ENFORCEMENT
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(1) Right of Entry and Inspection. For the purpose of ascertaining compliance with
the provisions of Subchapter I of Chapter 295, Wisconsin Statutes, Chapter 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 Section 295.17(1), Wisconsin Statutes and
Section NR 135.42, Wis. Adm. Code.
(2) Orders and Citations.
(a) Enforcement Orders. The City of Muskego may issue orders as set forth
in Section 295.19(1)(a), Wisconsin Statutes to enforce Subchapter I of
Chapter 295, Wisconsin Statutes, Chapter NR 135, Wis. Adm. Code, this
chapter, a permit issued pursuant to this chapter or a reclamation plan
required by s. 38.03(2) 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 s. 38.03(2) and a permit issued under this
chapter shall be considered a violation of Subchapter I of Chapter 295,
Wisconsin Statutes and Chapter NR 135, Wis. Adm. Code.
(b) Special Orders. The City of Muskego may issue a special order as set
forth in Sections 295.19(1)(b) and (c), Wisconsin Statutes suspending or
revoking a Nonmetallic mining reclamation permit pursuant to s. 38.04(2),
or directing an operator to immediately cease an activity regulated under
Subchapter I of Chapter 295, Wisconsin Statutes, Chapter NR 135, Wis.
Adm. Code or this chapter until the necessary plan approval is obtained.
(c) Review of Orders. An order issued under sub. 38.05(2)(a) or sub.
38.05(2)(b) may be reviewed as provided in Section NR 135.43(2), Wis.
Adm. Code.
(d) Citations. The City of Muskego may issue a citation under s. 66.119,
Stats., and §25.04, City of Muskego Code, and to collect forfeitures or
require any action needed to enforce Subchapter I of Chapter 295,
Wisconsin Statutes, Chapter NR 135, Wis. Adm. Code, this chapter, a
permit issued pursuant to this chapter or a reclamation plan required by s.
38.03(2) 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.
(e) Enforcement. The City of Muskego may submit any order issued under s.
38.05(2) to the District Attorney, the corporation counsel, the municipal
attorney or the attorney general for enforcement as provided in Section
295.19(1)(d), Wisconsin Statutes.
(3) Penalties. Any violation of Subchapter I of Chapter 295, Wisconsin Statutes,
Chapter NR 135, Wis. Adm. Code, this chapter, a permit issued pursuant to this
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chapter or a reclamation plan required by s. 38.03(2) and a permit issued under
this chapter may result in forfeitures as provided in Section 295.19(3), Wisconsin
Statutes and §25.04, City of Muskego Code.
SECTION 2: The several sections of this ordinance are declared to be severable. If
any section or portion thereof shall be declared by a decision of a court of competent
jurisdiction to be invalid, unlawful, or unenforceable, such decision shall apply only to
the specific section or portion thereof directly specified in the decision, and not affect the
validity of all other provisions, sections, or portion thereof of the Ordinance which shall
remain in full force and effect. Any other ordinances whose terms are in conflict with the
provisions of this ordinance are hereby repealed as to those terms that conflict.
SECTION 3: This ordinance shall be in full force and effect from and after its passage
and publication.
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PASSED AND APPROVED THIS 26 DAY OF JUNE , 2007.
CITY OF MUSKEGO
_______________________________
John R. Johnson, Mayor
ATTEST: First reading: 06/12/07
_________________________
Clerk-Treasurer Cover Ordinance Published
July 12, 2007
6/07jmb
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