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PO Box 52, Ettrick, WI 54627
Telephone: (608) 525-4991
John "Peach" Vehrenkamp: Chairman
Supervisors: Wayne Lien and John Woyicki
Scott Juszczak Clerk-Treasurer
Section 1-13.01 PREAMBLE
The purpose of this sub-chapter is to promote and protect the health, safety, prosperity, aesthetics and general welfare of the people and communities within the Town and set forth the rules and procedures for this municipality regarding non-metallic mines within the Town that support county and state rules, and at times may be more restrictive. This ordinance is adopted pursuant to the Town’s village and police powers under Wis. Stats 60.10 (2) (C).
Section 1-13.02 INTENT
The general intent of this sub-chapter is to regulate, from the Town’s perspective, the location, construction, installation, alteration, design, operation and use of all non-metallic mines so as to protect the health of residents and transients; secure safety from disease and pestilence; further the appropriate use and conservation of land and water resources; preserve and promote the administration and enforcement of this sub-chapter and provide penalties for its violations.
Section 1-13.03 INTERPRETATION
In their interpretation and application, the provisions of this sub-chapter shall be held to be minimum requirements and shall be liberally construed in favor of the Town and shall not be deemed a limitation or repeal of any other power granted by the Wisconsin Statutes.
Section 1-13.04 DEFINITIONS
1) “Metallic Mining” means operations or activities for the commercial extraction from the earth of merchantable metallic minerals; or the exploration or prospecting for such minerals; and includes operations, processes or activities related to that extraction.
2) “Non-Metallic Mining” means both a) operations or activities at a non-metallic mining site for the extraction from the earth of mineral aggregates or non-metallic minerals for sale or use by the operator. Non-metallic mining includes use of mining equipment or techniques to remove materials from the in-place non-metallic mineral deposit, including drilling and blasting, as well as associated activities such as excavation, grading and dredging. “Non-metallic mining” does not include removal from the earth of products or commodities that contain only minor or incidental amounts of non-metallic minerals such as sod, agricultural crops, ornamental or garden plants, forest products, Christmas trees or plant nursery stock. And b) processes carried out at a non-metallic mining site that are related to the preparation or processing of the mineral aggregates or non-metallic minerals obtained from the non-metallic mining site. These processes include, but are not limited to, stockpiling of materials, blending mineral aggregates or non-metallic minerals with other mineral aggregates or non-metallic minerals, blasting, grading, crushing screening, scalping and de-watering.
3) “Industrial sand” is a high-purity sand product sold for any of the following uses: glass-making, metal casting, metal production, chemical production, paint and coatings, ceramics and refractories, and oil and gas recovery (i.e. “frac sand”). This sand is classified as 212322 Industrial Sand Mining, according to the NAICS C (North American Industry Classification System) Standard Industrial Classification (SIC) System.
4) “Construction sand” is either sand and gravel or crushed stone (stone crushed from bedrock) that is predominately produced and used for local construction purposes (i.e. asphalt or concrete roads, concrete, asphalt, building or dimension stone, railroad ballast, decorative stone, retaining walls, revetment stone, roofing granules, and other similar uses) or used for agricultural uses such as ag lime and bedding sand for livestock operations. Sand and gravel or crushed stone may be produced and used for other purposes such as salt and sand for icy roads, water filtration systems in septic systems, landfills and mortar sand.
5) “Owner/ Operator” is/ are the surface property owner(s) and/or the mineral rights owner(s) and/or the operator who is/are the legally responsible party(ies) under this Ordinance.
6) “Town of Ettrick Mining Committee” is a committee of at least four (4) residents and one (1) Town Board member appointed by the Town Board to review non-metallic mining applications and make recommendations to the Town Board. The Committee members shall serve a term of one (1) year from the date of their appointment. Members may serve successive terms. Any vacancy in the Committee shall be filled by vote of the Town Board for the balance of a term. Unless approved by the Town Board, the Committee members shall serve without compensation.
Section 1-13.05 NON-METALLIC MINING
1) Non-metallic mines in the Town shall be allowed only if the owner/ operator has/ have been issued the permits required by this Ordinance and any permits required by any County, State and Federal authorities.
2) Non-metallic mining applications to produce industrial sand as defined in this Ordinance shall meet all of the requirements of this Ordinance. Mines that produce construction sand as defined by this Ordinance may be subject to an expedited review and fewer requirements.
3) The owner/ operator shall apply for a Town Permit for a non-metallic mine prior to seeking County and State approval or starting work on any mining structure or facility and prior to operating any non-metallic mine in the Town. The Application shall be submitted on a form provided to the applicant by the Town Clerk and/or the County Zoning Office, a copy of which is attached hereto as Appendix A.
4) The Town Board shall be the sole determining body deciding whether to issue a Town Permit and provide a letter of recommendation to the County. The Town Board may deny the Permit; likewise, it may grant the Permit, with conditions, if it is determined that the development and operation of the non-metallic mine is in the best interests of the citizens of the Town, and will be consistent with the promotion and protection of public health, safety, prosperity, aesthetics and general welfare of the people of the Township.
5) The Town Permit shall be void if the owner/ operator violate(s) any conditions of the Permit or any conditions of any required Federal, State or County permits.
Section 1-13.06 PROCEDURES
1) The owner/ operator shall complete and submit both a Trempealeau County and a Town of Ettrick Non-metallic Mining Permit Application (Appendix A) and pay the required application fees.
2) After receiving the Application and the Application fee, the Town Clerk, not less than ten (10) days before the meeting date, shall mail by U.S. Mail a copy of the Town Application to the owner/ operator and to all landowners within 2500 feet of the proposed non-metallic mining site with the date and time of the next Town of Ettrick Mining Committee meeting.
3) The Clerk shall then place the Application on the agenda for the next Town of Ettrick Mining Committee meeting.
4) The Town of Ettrick Mining Committee shall review and consider the Application and make a recommendation to the Town Board. After a decision has been rendered by this Committee, the Application shall be placed on the agenda of the Town Board for a public hearing and decision.
5) At the public hearing held by the Town Board, the Town Board shall consider the recommendation of the Town of Ettrick Mining Committee and take public comment on the proposed mine. Before making a decision on the Application, the Town Board shall determine whether the application is complete and true, and whether the applicant has applied for or received any required Federal, State and County permits for the proposed mine.
6) The Town Board shall conditionally grant the Permit, either with or without site-specific conditions, if it is determined that the development and operation of the non-metallic mine is in the best interests of the citizens of the Town, and will be consistent with the promotion and protection of public health, safety, prosperity, aesthetics and general welfare of the people of the Township.
7) If the Town Board grants the Permit, it shall attach conditions to promote and protect public health, safety, prosperity, aesthetics and the general welfare of the Town. (Such conditions shall include, but are not limited to, restrictive provisions and proof of financial security for reclamation, restrictive provisions and proof of financial security for Town road maintenance and repair, restrictions on hours of operation, restrictions on truck routes on Town roads, restrictions on truck and traffic volume into and out of the mine site, restrictions to protect groundwater quantity and quality, restrictions to safeguard public and private drinking and agricultural wells, restrictions to control air emissions and dust from the mine and its operations, and any other restrictions deemed necessary or appropriate by the Town Board to promote and protect public health, safety, prosperity, aesthetics and the general welfare of the Town and its citizens.) Specifically, the Town of Ettrick shall apply the following conditions to all Applications submitted:
CONDITIONS FOR ALL NON-METALLIC SAND MINING APPLICATIONS
1) The owner/ operator shall provide to the Town Board a Notice of Intent to contract or a contract with a purchaser and processor for the material from the mine as part of the Application for the Town Permit. If a contract is not submitted with the Application, a contract shall be submitted before mining can commence. Contracts shall be submitted directly to the Town’s attorney and, except as provided, herein, remain confidential. This contract shall show all pertinent names and addresses. This contract shall show the beginning and ending of the contract. The contract shall show where the material is to be delivered and what is to be done with the non-usable industrial sand. The times the mine is planned to be operated and the length of time the mine is expected to be operated shall be provided in the Application. The number of tons of material expected to be removed from the site shall be provided with the Application. The routes to be traveled within the Town shall be disclosed with the Application.
2) The owner/ operator shall provide the Town clerk with monthly load reports showing the number of loads and pounds received daily at the termination of each haul. In the same manner, the report must include the loads and pounds of non-usable industrial sand and the pounds returned to the mine site.
3) Sand taken from the property may be returned to the property. In addition, the owner/operator and Town understand and agree that fines or waste sand from other mines may be returned to the property. All material brought to the site shall be tested for any matter that threatens the health, safety, prosperity, aesthetics and general welfare of the people and communities of the Township. This shall be done at the owner/ operator’s expense. Results of this testing shall be furnished to the Town of Ettrick Mining Committee before any material is brought to the mining site.
4) The owner/ operator shall pay all expenses and legal fees resulting from establishment, review operation and reclamation of the mining site.
5) The owner/ operator shall provide to the Town an Agreement to Defend and hold the Town harmless against any third party claims whatsoever resulting from or arising out of any negligent or intentional or wrongful act or omission of the applicant, its employees, officers or agents in conducting the operations of the non-metallic mining site as regulated by the conditional use permit through the date of completion of final reclamation. The hold-harmless agreement shall be subject to approval as to form by the Town’s attorney.
6) The owner/ operator shall provide a Certificate of Insurance to the Town indemnifying the Town and its elected officials, employees and agents as additional insured with the following minimum coverage limits:
a) Comprehensive General Liability Insurance including blanket contractual liability insurance, insuring the Applicant’s obligation to indemnify the Town as provided in this Ordinance
insuring the Town, its elected officials, officers, employees and agents against liability for personal injury, including death of persons, resulting from injuries occurring on, or in any way related to, the use or occupancy of the permitted premises in a minimum amount of one million U.S. dollars ($1,000,000.00) per occurrence and against liability damage to property occurring on, or relating in any way due to, the permitted premises with the combined aggregate of two million U.S. dollars ($2,000,000.00).
b) Comprehensive General Public Liability Insurance against claims for bodily injury, death or property damage occurring on or about the permitted premises or arising out of the operation of the permitted premises. Such insurance shall afford protection of not less than one million U.S. dollars ($1,000,000.00) with respect to bodily injury or death to any one person with the combined aggregate of two million U.S. dollars ($2,000,000.00) with respect to any one accident, and not less than one hundred thousand U.S. dollars ($100,000.00) with respect to property damage, without deductible.
7) The Town reserves the right to require appropriate security to assure timely performance of a site-specific required action expressly identified in the final permit.
8) The owner/ operator and/or persons signing for the owner warrant that the operator has full right and authority to pursue a Non-metallic Mining Permit from the Town of Ettrick. The obligations of owner/ operator under this Permit shall run with the land and be binding on the owner/ operator and his/ her/ their heirs, grantees, representatives, successors and assigns. The Town shall record a copy of this Permit, if granted, with the Trempealeau County Register of Deeds. The cost of recording shall be paid by the owner/ operator.
9) Hauling shall be permitted on Town roads between 6:00 AM and 8:00 PM CDST and 6:00 AM and 6:00 PM CST, Monday through Friday and between 7:00 AM and 3:00 PM on Saturday. Hauling on Town roads is not permitted on Sunday and State-recognized holidays. All road bans shall be enforced. To ensure the safety of children, hauling and staging are prohibited during times when school buses are on the Town roads used by the owner/ operator under the Permit during scheduled public school days. The owner/ operator will co-ordinate these times with the local school districts.
10) Trucks involved in mine operations are restricted to a maximum of 45 mph or 10 miles below the posted speed limit, whichever is lower, on Town roads. Trucks must be covered at all times when operating within the Town.
11) The owner/ operator shall negotiate private agreements with affected landowners within twenty-five hundred feet (2500 feet) of mine boundaries (or to the limits of the Town’s jurisdiction) to address property values, structures, wells and nuisance factors. Notarized evidence of agreements with affected landowners shall be submitted with the Town of Ettrick Non-metallic Mining Application. If agreement cannot be reached with all affected landowners, then the Town Board shall decide if the Permit shall be issued.
12) The owner/ operator shall, at his/her/their sole expense, monitor and record air quality at the exterior boundaries of the site using the best available monitoring system and shall make a report prior to the time of permit renewal, or more often if the Town finds it necessary to request such in writing.
13) The owner/ operator shall remedy any ground-water contamination caused by the owner/ operator within twenty-five hundred feet (2500 feet) of the mining site at the owner/operator’s sole expense.
14) The minimum set-back for mining operations shall be 100 feet from property lines and 500 feet from a residence. The required set-back for Town roads shall be more than 83 feet from the center of the right-of-way and for all other roads 100 feet from the center of the right-of-way.
15) Wet processing of industrial sand using a high-capacity well system and/or chemicals of any kind is prohibited. A high-capacity well system is one or more wells, drill-holes or mine shafts on a permitted mine site that have a combined approved pump capacity of seventy (70) or more gallons per minute. (Wis. NR 812.07 (53) )
16) The owner/ operator shall post a bond based upon road evaluations for Town road, bridge and culvert repairs or replacement and shall pay a per-ton/ per-mile load fee for the repair and/or replacement of the Town roads, bridges and culverts used by the owner/ operator when hauling on Town roads. This fee shall be based on monthly load reports and shall be paid to the Town Clerk each month. This money shall be deposited into an account with the Town that is segregated and restricted to repair and replacement of roads, bridges and culverts used. When this account reaches the amount needed to restore or replace the roads, bridges and culverts, the fee shall be reduced to an inflation-adjusted amount based on the Consumer Price Index to keep the fund sufficient. At that time the bond shall no longer be required for those roads, bridges or culverts.
17) The owner/ operator shall pay for a professional inspection of Town roads, bridges and culverts that will be used for trucking industrial sand to and from the permit site to the termination of each haul. This inspection shall be completed to determine the initial condition of the roads that will be used, and copies of this inspection shall be provided to the Town Clerk prior to beginning operations. The owner/ operator shall conduct and pay for a professional inspection of those Town roads, bridges and culverts every three (3) months after the initial inspection during the first year and then annually each year of permitted operation after the first year. The inspection shall be completed to determine the condition of the Town roads, bridges and culverts that will be used, and copies of this inspection shall be provided to the Town Clerk upon completion of the inspection.
18) Any change of owner/ operator shall require a new Permit approved by the Town.
19) Any change in the site ( e.g.: enlargement, different processes, etc.) shall require a new Permit approved by the Town.
Section 1-13.07 EFFECTIVE DATE
This Ordinance shall take effect upon passage and publication.
Section 1-13.08 EXCEPTIONS FROM ORDINANCE
A non-metallic mining permit is not required from the Town for non-metallic mines in existence prior to the effective date of this Ordinance or for the activities listed in Wis. Admin. Code NR 135.02 (3). However, if a pre-existing non-metallic mining operation is altered after the effective date of this Ordinance in a manner that requires a new non-metallic mining permit from Trempealeau County, the alteration shall be subject to the permitting requirements of this Ordinance.
Section 1-13.09 ENFORCEMENT AND PENALTIES
Any violation of this Ordinance shall be punishable by a forfeiture of no less than ten thousand U.S. dollars ($10,000.00) or more than twenty thousand U.S. dollars ($20,000.00) per day for every day in violation of this Ordinance, plus the costs of prosecution for each and every violation; the Town’s attorney shall expeditiously prosecute all such violators. Each day of violation shall constitute a separate offense. After the second offense, the Town Board shall initiate steps to have the permit revoked. The Town Board or its designee may enter the premises to inspect the mine site at any time for purposes of monitoring or enforcing this Ordinance. Town inspection shall comply with all State and Federal requirements for safety when making an inspection.
Section 1-13.10 SEVERABILITY
If any provision of this Ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable.
The Town of Ettrick Clerk shall properly post or publish this Ordinance as required under
Wis. Stat. 60.80.
Adopted this 6th day of February, 2013.
Signatures for the Town of Ettrick Board: Chairman: Signed
Attest Town Clerk: Signed Dated: 6th day of Februrary,2013