AB499: Bill Text Engrossed

Hearing process

Under current law, DNR holds a public informational hearing on DNR's draft EIS, after which DNR prepares a final EIS. DNR then conducts a master hearing on the final EIS, the draft mining or prospecting permits that DNR has prepared, and all other approvals that are required for the prospecting or mining project, to the extent possible. Under current law, the provisions related to notice, hearing, and comment in the nonferrous metallic mining law apply to any other needed approval, unless the applicant fails to apply for an approval in time for it to be considered at the master hearing. The master hearing includes both a contested case hearing, with testimony under oath and the opportunity for cross-examination, and a public informational hearing. After the master hearing, DNR either denies the application for a prospecting or mining permit or approves the application and issues the permit and related approvals.

This bill requires DNR to hold a public informational hearing on the draft prospecting or mining permit, the draft EIS, and all other approvals that are related to the prospecting or mining project, unless the application for a related approval is filed too late to allow the approval to be considered at the hearing in which case another public informational hearing is held using the same procedure as for the mining or prospecting permit hearing. The hearing does not include a contested case hearing. Before the hearing, DNR must make the applications for the permit and any additional approvals, and the draft EIS, the draft permit, any other draft approvals, available for review in the city, town, or village in which the proposed prospecting or mining site is located. DNR must also publish a notice with the date, time, and location of the public informational hearing, and accept public comments within 45 days after the notice is published. DNR must publish the hearing notice within 30 days of completing the draft EIS and draft mining or prospecting permit under the timeline described above.

Under current law, DNR must issue a mining permit within 90 days after completion of the public hearing record if it makes certain determinations, including that the proposed operation will comply with all applicable air, groundwater, surface water, and solid and hazardous waste management laws and DNR rules and that the proposed mine will not endanger public health, safety, or welfare. Under the bill, DNR must also issue a mining permit during this 90-day timeline if it finds that the technology that will be used at the proposed operation is capable of resulting in compliance with all applicable air, groundwater, surface water, and solid and hazardous waste management law and DNR rules and is reasonably certain to result in compliance with these laws and rules at the proposed mining site.

Review process

Under current law, any person who is aggrieved by a DNR decision relating to nonferrous metallic exploration, prospecting, or mining may request an administrative contested case hearing, unless the matter was heard at the master hearing.

Under the bill, a person may not request a contested case hearing on a DNR decision relating to exploration or bulk sampling. However, a person may request a contested case hearing on a DNR decision relating to a mining or prospecting permit, including a decision related to the EIS for the proposed prospecting or mining operation or a decision on any approval related to the prospecting or mining permit application. A person seeking such a contested case hearing must request the hearing within 60 days after DNR issues the decision to approve or deny the mining or prospecting permit. In addition, the bill requires the hearing examiner in such a contested case hearing to issue a decision within 270 days after DNR approves or denies the mining or prospecting permit. Under the bill, a person seeking judicial review of a decision in such a contested case hearing must bring the action within 30 days of the decision. The bill also allows a person to request a contested case hearing on other DNR decisions relating to prospecting or mining that are issued after DNR's final decision to grant or deny a prospecting or mining permit. Under the bill, a person seeking judicial review of a decision in a contested case hearing or of any DNR decision relating to nonferrous metallic mining, prospecting, exploration, or bulk sampling must bring the action in the court for the county in which the majority of the mining or prospecting site is located or in which the majority of the exploration or bulk sampling will occur.

Fees

This bill exempts nonferrous metallic mining from certain solid waste disposal fees that are required under current law. Under current law, a generator of solid or hazardous waste, including at a nonferrous metallic mining waste site, must generally pay license and review fees; tonnage fees; groundwater and well compensation fees; a solid waste facility siting board fee; a recycling fee; and an environmental repair fee and repair surcharge. This bill exempts nonferrous metallic mining waste sites from the review and license fees, tonnage fees, and recycling fee. Under the bill, the operator of a mining waste site must continue to pay the groundwater fee, the environmental repair fee and surcharge, and the solid waste facility siting board fee.

Net proceeds tax

Under the bill, for purposes of imposing and collecting the net proceeds tax on mining, the secretary of the Department of Revenue may adjust the allocation of gross revenue, deductions, allowances, or credits between or among organizations owned or controlled by the same interests, if the secretary determines that the adjustment is necessary in order to prevent evasion of the tax or to clearly reflect the income of any such organizations. Under current law, the secretary of DOR may make the same determination and adjustment with regard to the imposition and collection of income and franchise taxes.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB499-engrossed,1 Section 1. 20.370 (2) (gh) of the statutes is amended to read:

AB499-engrossed,9,4 20.370 (2) (gh) Nonferrous metallic mining regulation and administration. The amounts in the schedule for the administration, regulation, and enforcement of nonferrous metallic mining exploration, bulk sampling, prospecting, mining and mine reclamation activities under ch. 293. All moneys received under ch. 293 shall be credited to this appropriation.

AB499-engrossed,1n Section 1n. 70.375 (2) (b) of the statutes is amended to read:

AB499-engrossed,10,8 70.375 (2) (b) The secretary may promulgate any rules necessary to implement the tax under ss. 70.37 to 70.39 and 70.395 (1e). In respect to mines not in operation on November 28, 1981, ss. 71.10 (1), 71.30 (1) and (2), 71.74 (2), (3), (9), (11) and (15), 71.77, 71.78, 71.80 (6), 71.83 (1) (a) 1. and 2. and (b) 2. and (2) (a) 3. and (b) 1. and 71.85 (2) apply to the administration of this section.

AB499-engrossed,2 Section 2. 70.375 (4) (h) of the statutes is amended to read:

AB499-engrossed,10,11 70.375 (4) (h) The cost of premiums for bonds required under s. 293.26 (9), 293.51, 295.45 (5), or 295.59.

AB499-engrossed,3 Section 3. 227.42 (4) of the statutes is repealed.

AB499-engrossed,4 Section 4. 281.35 (5) (e) of the statutes is amended to read:

AB499-engrossed,10,17 281.35 (5) (e) Right to hearing. Except as provided in s. 227.42 (4), any Any person who receives notice of a denial or modification requirement under par. (c) is entitled to a contested case hearing under ch. 227 if the person requests the hearing within 30 days after receiving the notice.

AB499-engrossed,5 Section 5. 283.84 (3m) of the statutes is amended to read:

AB499-engrossed,10,22 283.84 (3m) A person engaged in mining, as defined in s. 293.01 (9) or 295.41 (26), prospecting, as defined in s. 293.01 (18), bulk sampling, as defined in s. 293.01 (2m) or 295.41 (7), or nonmetallic mining, as defined in s. 295.11 (3), may not enter into an agreement under sub. (1).

AB499-engrossed,6 Section 6. 293.01 (2m) of the statutes is created to read:

AB499-engrossed,11,6 293.01 (2m) “Bulk sampling” means excavating in a potential mining site by removing less than 10,000 tons of material, including overburden and any other material removed from any portion of the excavation site, for the purposes of obtaining site-specific data to assess the quality and quantity of the nonferrous metallic mineral deposits and of collecting data from and analyzing the excavated materials in order to prepare the application for a mining permit or for any other approval. Bulk sampling does not constitute prospecting within the meaning of sub. (18).

AB499-engrossed,7 Section 7. 293.01 (9) of the statutes is amended to read:

AB499-engrossed,11,12 293.01 (9) “Mining" or “mining operation" means all or part of the process involved in the mining of nonferrous metallic minerals, other than for exploration, bulk sampling, or prospecting, including commercial extraction, agglomeration, beneficiation, construction of roads, removal of overburden and the production of refuse.

AB499-engrossed,8 Section 8. 293.01 (18) of the statutes is amended to read:

AB499-engrossed,12,2 293.01 (18) “Prospecting" means engaging in the examination of an area for the purpose of determining the quality and quantity of nonferrous metallic minerals, other than for exploration or bulk sampling but including the obtaining of a nonferrous metallic mineral sample, by such physical means as excavating, trenching, construction of shafts, ramps and tunnels and other means, other than for exploration or bulk sampling, which the department, by rule, identifies, and the production of prospecting refuse and other associated activities. “Prospecting" shall not include such activities when the activities are, by themselves, intended for and capable of commercial exploitation of the underlying nonferrous ore body. However, the fact that prospecting activities and construction may have use ultimately in mining, if approved, shall not mean that prospecting activities and construction constitute mining within the meaning of sub. (9), provided such activities and construction are reasonably related to prospecting requirements.

AB499-engrossed,9 Section 9. 293.13 (2) (b) (intro.) of the statutes is amended to read:

AB499-engrossed,12,5 293.13 (2) (b) (intro.) Minimum standards for exploration, bulk sampling, prospecting, and mining shall include the following:

AB499-engrossed,10 Section 10. 293.13 (2) (b) 4. of the statutes is amended to read:

AB499-engrossed,12,8 293.13 (2) (b) 4. Adequate diversion and drainage of water from the exploration, bulk sampling, prospecting, or mining site.

AB499-engrossed,11 Section 11. 293.13 (2) (b) 7. of the statutes is amended to read:

AB499-engrossed,12,11 293.13 (2) (b) 7. Removal and stockpiling, or other measures to protect topsoils prior to exploration, bulk sampling, prospecting, or mining.

AB499-engrossed,12 Section 12. 293.13 (2) (c) (intro.) of the statutes is amended to read:

AB499-engrossed,12,15 293.13 (2) (c) (intro.) Minimum standards for reclamation of exploration and bulk sampling sites, where appropriate, and for prospecting and mining sites shall conform to s. 293.01 (23) and include provision for the following:

AB499-engrossed,13 Section 13. 293.13 (2) (c) 7. of the statutes is amended to read:

AB499-engrossed,12,20 293.13 (2) (c) 7. Revegetation to stabilize disturbed soils and prevent air and water pollution, with the objective of reestablishing a variety of populations of plants and animals indigenous to the area immediately prior to exploration, bulk sampling, prospecting, or mining.

AB499-engrossed,14 Section 14. 293.15 (7m) of the statutes is created to read:

AB499-engrossed,12,22 293.15 (7m) Issue licenses and approvals necessary for bulk sampling.

AB499-engrossed,15 Section 15. 293.15 (8) of the statutes is amended to read:

AB499-engrossed,13,5 293.15 (8) Promulgate rules regulating the production, storage and disposal of radioactive waste from exploration, bulk sampling, prospecting, or mining after seeking comments from the department of health services. At a minimum, rules promulgated under this subsection shall achieve the margin of safety provided in applicable federal statutes and regulations. If the department promulgates rules under this subsection, the department shall investigate the need for standards more restrictive than the applicable federal statutes and regulations.

AB499-engrossed,16 Section 16. 293.26 of the statutes is created to read:

AB499-engrossed,13,9 293.26 Bulk sampling. (1) In this section, “approval” means any permit, license, certification, contract, or other authorization that the department issues, or any other action by the department, that is required to engage in bulk sampling.

AB499-engrossed,13,19 (1m) No person may engage in bulk sampling except as provided in a bulk sampling license issued by the department under sub. (4) or (14m) and any approval required by the department to engage in bulk sampling identified under sub. (4) or sub. (4m). A person who intends to engage in bulk sampling shall file a bulk sampling plan with the department. The collection of data under a bulk sampling plan may include sampling and analysis related to geophysical, geochemical, groundwater, and surface water conditions, as well as any other data or studies necessary to prepare an application for a mining permit, including the mining plan, reclamation plan, mining waste site feasibility study and plan of operation, or any other approval required for the proposed mining.

AB499-engrossed,13,20 (2) A person shall include all of the following in a bulk sampling plan:

AB499-engrossed,13,24 (a) A description and map of the bulk sampling site, including the number of acres in the site, the number of acres of land that will be disturbed, if any, associated with each bulk sampling location, and the locations and types of sampling or studies to be conducted at each bulk sampling location.

AB499-engrossed,13,25 (b) A description of the methods to be used for the bulk sampling.

AB499-engrossed,14,3 (c) A site-specific plan for controlling surface erosion that conforms to requirements under ss. 281.33 (3) and 283.33 and that identifies how impacts to plant and wildlife habitats will be avoided or minimized to the extent practicable.

AB499-engrossed,14,8 (d) A revegetation plan for each area where bulk sampling will be performed that describes how adverse impacts to the environment will be avoided or minimized to the extent practicable and how the site will be revegetated and stabilized and that identifies how adverse impacts to plant and wildlife habitats will be avoided or minimized to the extent practicable.

AB499-engrossed,14,10 (e) The estimated time for completing the bulk sampling and revegetation of the bulk sampling locations.

AB499-engrossed,14,13 (f) A description of any known adverse environmental impacts that are likely to be caused by the bulk sampling and how those impacts will be avoided or minimized to the extent practicable.

AB499-engrossed,14,19 (g) A description of any adverse effects, as defined in s. 44.31 (1), that the bulk sampling might have on any historic property, as defined in s. 44.31 (3), that is a listed property, as defined in s. 44.31 (4), that is on the Wisconsin inventory of historic places, as defined in s. 44.31 (12), or that is on the list of locally designated historic places under s. 44.45; or any scenic or recreational areas; and plans to avoid or minimize those adverse effects to the extent practicable.

AB499-engrossed,15,2 (3) The department shall protect as confidential any information, other than effluent data, contained in a bulk sampling plan and in any application for an approval that is required before the bulk sampling may be implemented, upon a showing that the information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), and any information relating to the location, quality, or quantity of a nonferrous metallic mineral deposit, to production or sales figures, or to processes or production unique to the applicant or that would tend to adversely affect the competitive position of the applicant if made public.

AB499-engrossed,15,10 (4) Within 14 days of receipt of a complete bulk sampling plan under sub. (2), the department shall identify for the applicant, in writing, all approvals that are required before the bulk sampling may be implemented, any waivers, exemptions, or exceptions to those approvals that are potentially available, and any information that the department needs to issue the approvals or to issue a decision on any waiver, exemption, or exception. If no approvals are required, the department shall notify the applicant that no approvals are required and issue a bulk sampling license to the applicant.

AB499-engrossed,15,13 (4m) An applicant shall file a revised bulk sampling plan if there are any significant changes to the information provided in the previous bulk sampling plan under sub. (2).

AB499-engrossed,15,19 (a) If the revised bulk sampling plan is filed before the department approves or denies any waiver, exemption, or exception under sub. (12), issues any approval under sub. (13) or (14), or issues a bulk sampling license under sub. (14m), within 14 days of receiving the revised bulk sampling plan, the department shall notify the applicant, in writing, of any changes to the information provided to the applicant under sub. (4).

AB499-engrossed,15,25 (b) If the revised bulk sampling plan is filed after the department approves or denies any waiver, exemption, or exception under sub. (12), issues any approval under sub. (13) or (14), or issues a bulk sampling license under sub. (14m), within 14 days of receiving the revised bulk sampling plan, the department shall identify for the applicant, in writing, any modifications to existing approvals or additional approvals that the department requires.

AB499-engrossed,16,4 (5) If a storm water discharge permit under s. 283.33 (1) (a) or a water quality certification under rules promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a) is required before bulk sampling may be implemented, the person filing the bulk sampling plan may apply for and be issued the permit or certification.

AB499-engrossed,16,8 (6) The department shall act on any required construction site erosion control and storm water management approval, notwithstanding any authorization by the department of a local program to administer construction site erosion control and storm water management requirements.

AB499-engrossed,16,9 (7) An applicant shall submit all of the following at the same time:

AB499-engrossed,16,10 (a) Applications for individual approvals identified under sub. (4) or (4m) (a).

AB499-engrossed,16,12 (b) Applications for coverage under general permits or registration permits identified under sub. (4) or (4m) (a).

AB499-engrossed,16,14 (c) Applications for waivers, exemptions, or exceptions identified under sub. (4) or (4m) (a).

AB499-engrossed,16,15 (d) A bond, as provided in sub. (9).

AB499-engrossed,16,25 (8) (a) Notwithstanding any provision in ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under those chapters that is applicable to an approval identified under sub. (4) or (4m), the application for any approval, for a waiver, exemption, or exception to an approval, or for a determination that the proposed bulk sampling activity is below the threshold that requires an approval, is considered to be complete on the 30th day after the department receives the application, unless, before that day, the department provides the applicant with written notification that the application is not complete, stating the reason for the determination and describing the specific information necessary to make the application complete.

AB499-engrossed,17,3 (b) If the department provides a notice under par. (a), the applicant shall supplement the application by providing the specified information. The application is complete when the applicant provides the information.

AB499-engrossed,17,8 (c) If the department determines that the issuance of an approval is contingent upon the issuance of a permit under s. 29.604 (6m), and if the application for the permit under s. 29.604 (6m) is filed with the approval application, the department may not determine that the approval application is incomplete on the basis that the department has not yet issued the permit under s. 29.604 (6m).

AB499-engrossed,17,14 (9) (a) A person who intends to engage in bulk sampling shall submit with the bulk sampling plan a bond in the amount of $5,000 that is conditioned on faithful performance of the requirements of this section, that is issued by a surety company licensed to do business in this state, and that provides that the bond may not be canceled by the surety, except after not less than 90 days' notice to the department in writing by registered or certified mail.

AB499-engrossed,17,19 (b) If the surety for a bond submitted under par. (a) issues a cancellation notice, the person who filed the bulk sampling plan shall deliver a replacement bond at least 30 days before the expiration of the 90-day notice period. If the person fails to submit a replacement bond, the person may not engage in bulk sampling until the person submits a replacement bond.

AB499-engrossed,17,24 (c) If the license of the surety company for a bond submitted under par. (a) is revoked or suspended, the person who filed the bulk sampling plan, within 30 days after receiving written notice from the department, shall deliver a replacement bond. If the person fails to submit a replacement bond, the person may not engage in bulk sampling until the person submits a replacement bond.

AB499-engrossed,18,4 (d) The department may require that the amount of the bond submitted under this subsection be increased at any time, if the department determines that it is unlikely that the bond would be adequate to fund the cost to this state of completing the revegetation plan.

AB499-engrossed,18,8 (e) The department shall release a bond submitted under this subsection one year after the time for completing the bulk sampling and the revegetation set forth in the bulk sampling plan if the department determines that the person who engaged in bulk sampling has complied with this section.

AB499-engrossed,18,13 (10) Notwithstanding any provision in ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291 or a rule promulgated under those chapters applicable to an approval identified under sub. (4) or (4m), the department shall require the bulk sampling activity for which the approval is issued to be conducted at locations that result in the fewest overall adverse environmental impacts.

AB499-engrossed,18,17 (11) (a) In determining whether to approve or deny an application for an approval identified under sub. (4) or (4m), the department shall consider the site-specific erosion control plan, the revegetation plan, and any wetland mitigation program.

AB499-engrossed,18,20 (b) The department may modify the application for an approval identified under sub. (4) or (4m) in order to meet the requirements applicable to the approval, and, as modified, approve the application.

AB499-engrossed,18,25 (12) Notwithstanding any inconsistent period in ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under those chapters that is applicable to an approval identified under sub. (4) or (4m), the department shall approve or deny an application within 30 days after the day on which the application is considered to be complete under sub. (8) if any of the following applies:

AB499-engrossed,19,3 (a) The application is for a waiver, exemption, or exception to an approval for a bulk sampling activity or for a determination that the proposed bulk sampling activity is below the threshold that requires an approval.

AB499-engrossed,19,5 (b) The application is for a determination of eligibility for coverage or authorization to proceed under a general permit or a registration permit.

AB499-engrossed,19,13 (13) (a) Notwithstanding any inconsistent period in ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under those chapters that is applicable to an approval identified under sub. (4) or (4m), the department shall approve or deny any application for an approval identified under sub. (4) or (4m) to which sub. (12) does not apply within 60 days after the date on which the application is considered to be complete under sub. (8), unless the application is for an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval.

AB499-engrossed,19,23 (b) The department shall publish a class 1 notice, under ch. 985, and shall publish notice on the department's Internet site, that describes the availability of information concerning the activity for which an approval described in par. (a) is required, its proposed decision, its draft approval, information or summaries related to the approval, the department's analyses and preliminary determinations relating to the approval, any additional information that a law concerning the approval requires to be made available, and the opportunity to submit written comments within 30 days after the date of the publication of the notice. The date on which the department first publishes the notice on its Internet site shall be considered the date of the publication of the notice required to be published under this paragraph.

AB499-engrossed,20,6 (c) In the notice under par. (b), the department shall also specify the date, time, and location of the public informational hearing under par. (e). The department shall send the notice to any person to whom the department is required to give notice of any proposed determination, application, or hearing concerning an approval described in par. (a) under the laws relating to the issuance of the approval and to any person who has requested notice. The department's notice to interested persons under this paragraph may be given through an electronic notification system established by the department.

AB499-engrossed,20,13 (d) If there is more than one approval described in par. (a), the department shall issue one notice and coordinate the public comment period for all of the approvals. If possible, the department shall coordinate the notice and the public comment period for an approval that is an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval with notice and the public comment period for the approvals described in par. (a).

AB499-engrossed,20,24 (e) The department shall hold a public informational hearing within 30 days after the date of the publication of the notice under par. (b). The department shall hold the public informational hearing in the county where the majority of the proposed bulk sampling site is located. If there is more than one approval described in par. (a), the department shall hold a single public informational hearing covering all of the approvals. If possible, the department shall include consideration of an approval that is an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval in the public informational hearing under this paragraph. The public informational hearing under this paragraph is not a contested case hearing under ch. 227.

AB499-engrossed,21,7 (14) (a) If it is not possible to coordinate the public comment period and public informational hearing for an approval that is an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval with the public comment period and public informational hearing under sub. (13), the department shall issue a separate public notice and hold a separate public informational hearing for the approval in accordance with the law governing the approval.

AB499-engrossed,21,12 (b) The department shall approve or deny the application for an approval that is an individual permit for which federal law requires the opportunity for public comment or the ability to request a public hearing prior to issuance of the approval within 180 days after the date on which the application is considered to be complete under sub. (8).

AB499-engrossed,21,15 (14m) Upon issuing all of the approvals required by the department to engage in bulk sampling under subs. (13) and (14), the department shall issue the applicant a bulk sampling license.