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ORD200110690 COMMON COUNCIL -CITY OF MUSKEGO ORDINANCE #I069 AN ORDINANCE TO CREATE CHAPTER 38 OF THE MUNICIPAL CODE OF THE CITY OF MUSKEGO (NON-METALLIC MINING RECLAMATION) THE COMMON COUNCIL OF THE CITY OF MUSKEGO, WAUKESHA COUNTY, WISCONSIN DO ORDAIN AS FOLLOWS: / SECTION 1. Chapter 38 of the Municipal Code f the City of Muskego, Wisconsin is hereby created to read as follow . 4 CODE FOR NON-METALLIC MINING RECLAMATION 38.01 GENERAL Title. Non-metallic mining reclamation ordinance for the City of Muskego Purpose. The purpose of this chapter is to establish a local program to ensure the effective reclamation of non-metallic mining sites on which non-metallic 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. 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. Restrictions Adopted Under Other Authority. The purpose of this chapter is to adopt and implement the uniform statewide standards for non-metallic 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 non-metallic 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. Interpretation. In their interpretation and application, the provisions of this chapter shall be held to be the applicable requirements for non-metallic 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 non-metallic 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. Ordinance #lo69 Page 2 (6) Applicability (a) Overall Applicability The requirements of this chapter apply to all operators of non-metallic mining sites within the City operating on or commencing to operate after August 1, 2001, and as provided in Sections NR 135.02(1) and (2), Wis. Adm. Code except where exempted in sub. 38.01(6)(b) (b) Exemptions. This chapter does not apply to the exempt activities listed in Section NR 135.02(3), Wis. Adm. Code. (7) Administration. The provisions of this chapter shall be administered by the City Planning Department, unless otherwise specified. (8) 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 non-metallic 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. (a) Required Submittal. The operator of all non-metallic mining sites that operate on or after August 1, 2001, 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(3), Wis. Adm. Code. (b) Existing Mines. The operator of any existing non-metallic mine shall apply for an automatic reclamation permit from the City by providing the information required by Section NR 135.18(1), Wis. Adm. Code and the submittals required under sub. 38.03(1)(a) no later than August 1, 2001, to the City Planning Department. (c) New Mines. The operator of any non-metallic mine site that engages in or plans to engage in non-metallic mining that will begin operations afkr August 1, 2001, or which has not applied for an automatic reclamation permit pursuant to sub. 38.03(1)(b) shall Ordinance #lo69 ' Page 3 submit an application that meets the 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. This application shall be accompanied by a plan review fee as specified in s. 38.04(4). (2) Reclamation Plan. (a) Reclamation Plan Requirements. All operators of non-metallic 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 Mines. The operator of any non-metallic mining site that submits an automatic permit application in conformance with sub. 38.03(1)(b) shall submit the reclamation plan required by sub. 38.03(2)(a) within twelve (12) months from August 1, 2001 (c) New Mines. The operator of any non-metallic mining site that applies for a permit in 1 Conformance with sub. 38.03(1)(c) shall submit the reclamation plan required by sub. 38.03(2)(a) with its 2. Application for a reclamation permit (d) 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 Previous approvals for non-metallic mining sites that apply in accordance with sub. 38.03(1)(b) shall satisfy the requirements of sub. 38.03(2)(a) if they meet the requirements of Section NR 135.21(1)(d), Wis. Adm. Code. (e) Approval of Reclamation Plan. The City 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) for existing mines and sub. 38.03(5)(d) for new mines. Conditional approvals of reclamation plans shall be made according to sub. 38.03(5)(g). 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, Ordinance #lo69 Page 4 (3) Financial Assurance Financial Assurance Requirements. All operators of non-metallic mining sites in the City shall prepare and submit a proof of financial assurance of successful reclamation that meets the requirements of Section 135.40, Wis. Adm. Code. Existing Mines. The operator of any non-metallic mining site that submits an automatic permit application in conformance with sub. 38.03(1)(b) shall submit the financial assurance required by sub. 38.03(3)(a) within twelve (12) months of the date of the adoption of this Ordinance. New Mines. The operator of any non-metallic mining site that applies for a reclamation permit in conformance with sub. 38.03(1)(c) 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 Public Non-metallic Mining. The financial assurance requirements of this section do not apply to non-metallic mining conducted by the State of Wisconsin, a state agency, board, commission or department, or a municipality. (4) Public Notice and Right of Hearing. e New Mines. The City 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 non- metallic mining site for which a complete reclamation permit application that satisfies sub. 38.03(1)(c) is received. Existing Mines. No public notice or informational hearing is required on an application for a reclamation permit for an existing mine that satisfies sub. 38.03(1)(b), except as provided in Section NR 135.20(4)(c), Wis. Adm. Code. Local Transportation-Related Mines. No public notice or informational hearing is required for a non-metallic mining reclamation permit issued to a local transportation-related mine pursuant to sub. 38.03(5)(e). (5) Issuance of a Non-metallic Mining Reclamation Permit. (a) Permit Required. Every operator of a non-metallic mining site in the City who engages in or plans to engage in non-metallic mining ~ 0 I Ordinance #I069 ’ Page 5 after September 1, 2001, shall obtain a reclamation permit issued under this section, except non-metallic mining sites exempt from this chapter as provided in sub 38.01(6)(b). No person may engage in non-metallic mining or non-metallic mining reclamation after September 1. 2001, without a reclamation permit issued pursuant to this chapter Automatic Permit for Existing Mines. The City shall issue an automatic reclamation permit to the operator of any non-metallic mining that submits an application meeting the requirements of sub. 38.03(1)(b) as set forth in Section 135.21(1). Wis. Adm. Code. The automatic permit shall be issued within 30 days of such application, Evaluation of Follow-Up Submittals for Existing Mines. Mines covered by automatic permits issued under sub. 38.03(5)(b) shall submit a reclamation plan in accordance with sub. 38,03(2)(b) and proof of financial assurance in accordance with sub. 38.03(3)(b) by the deadlines established in those subsections. The Plan Commission may grant reasonable extensions to these deadlines in writing where extenuating circumstances have been determined to exist. The follow-up submittals required by this subsection shall be evaluated using the criteria and procedures in Sections NR 135.21(1)(d), (e) and (f). Permit Issuance for New Mines. Applications for reclamation permits for non-metallic mining sites not permitted under sub 38.03(5)(b) that satisfy sub. 38.03(1)(c) 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)(c), and provision by the applicant of financial assurance that conforms with sub. 38.03(3)(c) payable to the City prior to beginning mining. Automatic Permit for Local Transportation-Related Mines. The City 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. Expedited Review. Any operator of a non-metallic 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 Ordinance #I069 Page 6 Section NR 135.23(2), 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). (9) Permit Conditions. Permits issued under this section may include conditions as provided in Section NR 135.21(3), 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 non-metallic mining reclamation permit shall be denied if any of the factors specified in Section NR 135.22, Wis. Adm. Code exist. (7) Alternative Requirements. (a) Scope of Alternative Requirements Approvable. An operator of a non-metallic 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 non-metallic 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 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 non-metallic mining reclamation permit issued under this chapter shall last through operation and reclamation of the non-metallic mining site, unless suspended or revoked pursuant to sub. 38.05(2)(b). or as limited Ordinance #I069 ~ Page7 under Section NR 135.27, Wisconsin Administrative Code where the mine operator is not the landowner Permit Transfer A non-metallic 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. Review. Any permitting decision or action made by the City under this chapter may be reviewed as set forth in Section NR 135.30, Wis. Adm. Code. 38.04 ADMINISTRATION (1) Permit Modification (a) By the City. A non-metallic mining reclamation permit issued under this chapter may be modified by the City if it finds that, due to changing conditions, the non-metallic 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 non-metallic 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 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 non-metallic 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). Ordinance #I069 Page 8 (2) Permit Suspension or Revocation. (a) Grounds. The City may suspend or revoke a non-metallic 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 finds grounds for suspending or revoking a non-metallic 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 non-metallic 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 Planning Department. Annual reports shall be submitted until reclamation at each non-metallic mining site is certified as complete under sub. 38.04(7)(c). 0 (b) Inspection in Lieu of Report. The City 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 as outlined in the City’s Records Retention Policy, but not less than ten (IO) 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 non- metallic mining site for which a permit application has been submitted under sub. 38.03(1)(c) 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 Planning e Ordinance #I069 Page 9 Department. No plan review fee may be assessed under this section for any non-metallic mine site for which an application for an automatic reclamation permit is submitted that meets the requirements of sub. 38.03(1)(b) or for any local transportation- related mine issued an automatic permit under sub. 38.03(5)(e). 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). Expedited Plan Review Fee. A person who intends to operate a non-metallic mining site for which a permit application has been submitted under sub. 38.03(1)(c) 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). 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). Annual Fees. (a) Areas Subject to Fees, Procedures and Deadline. Operators of all non-metallic mining sites subject to reclamation permits issued under this chapter shall submit fees as required in this chapter to the City Planning Department. Fees paid under this section shall include both a share for the Wisconsin Department of Natural Resources under sub. 38.04(5)(b) and a share for the City under sub. 38.04(5)(c) that equals as closely as possible the costs of examination and approval of non-metallic mining reclamation plans and the inspection of non-metallic mining reclamation sites. These fees shall be calculated based on amount of un-reclaimed acres of each site, as defined in Section NR 135.39(1), Wis. Adm. Code and according to its provisions. Such fees apply to a calendar year or any part of a year in which non-metallic mining takes place, until final reclamation is certified as complete under s. 38.04(7). Fees shall be paid in conjunction with the annual review required in sub. 38.04(3)(a). Fees shall be submitted with a form specified by the City 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) Table 1, Wis. Adm. Code. For sites on which no non-metallic mining has taken place during a calendar year, fees Ordinance #lo69 to be paid under this section for the following year shall be as established from time to time by the Wisconsin Department of Natural Resources. City of Muskego‘s Share of Fee. Fees paid under this section shall also 1 Include an annual fee due to the City as shall be established from time to time by Resolution of the Common Council. Forms and fees shall be submitted to the City Planning Department‘s office at the Muskego City Hall, W182 S8200 Racine Ave., Muskego, WI. Reduced Fee for Inactive Mines. Any site on which no non-metallic mining activity has taken place in a calendar year shall be assessed a fee for the following calendar year equal to one-half (112) the per acre fee outlined in sub. 38.04(5)(c). 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. (6) Regulatory Reporting and Documentation. 0 (a) Reporting. The City shall send an annual report to the Wisconsin Department of Natural Resources including the information required by Section NR 135.37, Wis. Adm. Code. (b) Documentation. The City 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 (a) Reporting. The operator of a non-metallic 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 0 Ordinance #I069 Page 11 (b) Reporting of Interim Reclamation. The operator of a non-metallic 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 shall inspect a non-metallic 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. Adrn. 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 shall issue the mine operator a written certificate of completion. (d) Effect of Completed Reclamation. If reclamation is certified by the City as complete under sub. 38.04(7)(c) for part or all of a non- metallic 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. (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 s. 38.04(6), the City shall issue a written statement to the operator of the non-metallic mining site, thereby terminating the reclamation permit. 38.05 ENFORCEMENT (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 may inspect any non- metallic mining site subject to this chapter as provided in Section 295.17(1), Wisconsin Statutes and Section NR 135.42, Wis. Adm. Code. Ordinance #I069 Page 12 (2) Orders and Citations. (a) Enforcement Orders. The City 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. Adrn. Code. (b) Special Orders. The City 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 525.04, 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 may submit any order issued under s. 38.05(2) to the 1 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 I Ordinance #I 069 Page 13 pursuant to this 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 ordinance 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. PASSED AND APPROVED THIS __ DAY OF ,2001 CITY OF MUSKEG0 David L. De Angelis, Mayor AlTEST. First Reading: Cover Ordinance Published on the Clerk-Treasurer day of ,2001