Amendment ASA1-AB426

AB426-ASA1,145,4 5. Tests for temperature.

AB426-ASA1,145,7 295.643 Mining waste site monitoring. (1) General. The department may require the monitoring of groundwater, surface water, leachate, or other physical features associated with a mining waste site.

AB426-ASA1,145,13 (2) Physical features. The department may require the monitoring of air quality, berms, embankments, vegetation growth, and drainage control structures associated with the mining waste site. The department may require monitoring of other chemical or biological conditions, if the department determines that the monitoring is necessary to assess the impact of the mining waste site on critical aquatic and terrestrial ecosystems.

AB426-ASA1,145,18 (3) Monitoring wells and other devices. (a) The department shall require the installation of groundwater monitoring wells at a mining waste site. The department may require installation of leachate monitoring wells, lysimeters, moisture probes, and similar devices and associated water quality sampling and analysis programs to detect the effects of leachate on groundwater.

AB426-ASA1,145,24 (b) The department shall determine the required number of groundwater monitoring wells based on the size of the mining waste site, the design of the mining waste site, the types of mining waste, and the hydrologic and geologic setting of the mining waste site. The department shall ensure that the number of wells is adequate to yield samples representative of the groundwater quality both up gradient and down gradient of the mining waste site.

AB426-ASA1,146,3 (c) An operator shall construct all monitoring wells in accordance with ch. NR 141, Wis. Adm. Code, and in such a manner as to prevent, to the extent practicable, the exchange of water between aquifers.

AB426-ASA1,146,7 (4) Destruction of monitoring devices. (a) If for any reason a monitoring well or other monitoring device associated with a mining waste site is destroyed or otherwise fails to function properly, the operator shall notify the department in writing within 5 days of discovering the destruction or malfunction.

AB426-ASA1,146,11 (b) The operator shall either restore the monitoring well or other device or properly abandon it and replace it with a functioning device within 60 days of notifying the department under par. (a) unless the department notifies the operator otherwise in writing within 30 days of receiving notice from the operator.

AB426-ASA1,146,16 (5) Sampling other wells. The department may require an operator to sample public or private wells as part of a regular monitoring program or to determine the extent of groundwater contamination associated with a mining waste site. If the owner of a well does not authorize access for sampling, the operator shall promptly notify the department.

AB426-ASA1,146,25 (6) Required monitoring and analysis. (a) An operator shall monitor groundwater at locations identified in the waste site feasibility study and plan of operation on a quarterly basis, during March, June, September, and December, unless the department agrees to an alternate schedule. The department may base an alternate schedule on the hydrogeologic system's characteristics, such as flow velocity and stratigraphy, and on fluctuations in quality as determined through background water quality or baseline water quality sampling and mining waste type. The operator shall analyze for the parameters listed in the approved waste site feasibility study and plan of operation.

AB426-ASA1,147,3 (b) An operator shall use the methods for groundwater and surface water sample collection, preservation, and analysis that are specified in the approved mining waste site facility study and plan of operation.

AB426-ASA1,147,5 (7) Water elevation measurements. The operator shall make water elevation measurements on a quarterly basis.

AB426-ASA1,147,13 (8) Operations report. The department may require an operator to submit an operations report to assess the effectiveness and environmental acceptability of mining waste site operations. The operator may include in the report a discussion of confinement of the active fill area and an analysis of leachate and other monitoring, surface water control and erosion control, revegetation, settlement, volume of the mining waste site utilized, leachate quantity and quality, slope stability, equipment performance, volume and type of waste disposed of, and other relevant parameters.

AB426-ASA1,147,16 (9) Reports of monitoring data. The operator shall forward to the department, within 60 days after sampling, 3 copies of the monitoring data required by this section to be collected during each quarter.

AB426-ASA1,147,18 295.645 Groundwater quality, monitoring, and response. (1) Definitions. In this section:

AB426-ASA1,147,21 (a) "Alternative concentration limit" means the concentration of a substance in groundwater established by the department to replace a groundwater quality standard when the department grants an exemption.

AB426-ASA1,147,24 (b) "Statistically significantly different" means an amount of change determined by the use of statistical tests for measuring significance at the 95 percent confidence level.

AB426-ASA1,148,8 (2) Design management zone. (a) Notwithstanding the rule-making authority in s. 160.21 (2) and except as provided under par. (b), for the purposes of ch. 160, the horizontal distance to the boundary of the design management zone for a mining operation is 1,200 feet from the limits of the engineered structures of the mining waste site, including any wastewater and sludge storage or treatment lagoons, the edge of the mine, and the adjacent mine mill and ferrous mineral processing facilities or at the boundary of the property owned or leased by the applicant, whichever distance is less.

AB426-ASA1,148,14 (b) When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may expand the design management zone by a horizontal distance of up to an additional 1,200 feet in any direction as provided in this paragraph, but not beyond the boundary of the property owned or leased by the applicant. The department may not expand the design management zone unless the applicant demonstrates all of the following:

AB426-ASA1,148,17 1. That preventive action limits and enforcement standards or alternative concentration limits cannot be met at the boundary of the design management zone if it is not expanded.

AB426-ASA1,148,20 2. That preventive action limits and enforcement standards or alternative concentration limits will be met at the boundary of the expanded design management zone.

AB426-ASA1,148,25 (c) Notwithstanding the rule-making authority in s. 160.21 (2), for the purposes of ch. 160, the vertical distance to the boundary of the design management zone for a mining site, including any mining waste site, extends no deeper than 1,000 feet into the Precambrian bedrock or than the final depth of the mining excavation, whichever is greater.

AB426-ASA1,149,9 (3) Point of standards application. (a) Any point at which groundwater is monitored is a point of standards application to determine whether a preventive action limit or an alternative concentration limit to a preventive action limit has been attained or exceeded for an activity regulated under a mining permit or another approval related to the mining operation. Any of the following is a point of standards application to determine whether an enforcement standard or an alternative concentration limit to an enforcement standard has been attained or exceeded for an activity regulated under a mining permit or another approval related to the mining operation:

AB426-ASA1,149,10 1. Any point of present groundwater use.

AB426-ASA1,149,12 2. Any point beyond the boundary of the property on which the activity is conducted, subject to par. (b).

AB426-ASA1,149,14 3. Any point that is within the boundary of the property on which the activity is conducted but is beyond the design management zone, subject to par. (b).

AB426-ASA1,149,17 (b) No point at a depth of greater than 1,000 feet into the Precambrian bedrock or than the final depth of the mining excavation, whichever is greater, is a point of standards application under this subsection.

AB426-ASA1,149,19 (c) Section 160.21 (2) does not apply to an activity regulated under this subchapter.

AB426-ASA1,149,25 (4) Change in groundwater quality. If the analysis of samples collected through monitoring indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality and the evaluation of the data shows a reasonable probability that without intervention groundwater quality standards or alternative concentration limits will be attained or exceeded, the operator shall do all of the following:

AB426-ASA1,150,2 (a) Notify the department within 10 days after the operator receives the results of the analysis of the samples.

AB426-ASA1,150,4 (b) Determine, if possible, the cause of the difference in water quality, such as a spill, a design failure, or an improper operational procedure.

AB426-ASA1,150,6 (c) Determine the extent of groundwater contamination or the potential for groundwater contamination.

AB426-ASA1,150,7 (d) Implement the applicable portions of the approved contingency plan.

AB426-ASA1,151,2 (5) Response concerning preventive action limits. In accordance with s. NR 140.24 (1) to (5), Wis. Adm. Code, the department shall evaluate the range of responses proposed by the operator when a preventive action limit or an alternative concentration limit to a preventive action limit is attained or exceeded and the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality at a point of standards application. In designating the appropriate response, the department shall evaluate the operator's proposed range of responses, including any alternate responses to those identified in s. NR 140.24, Wis. Adm. Code. For any alternate responses, the department shall consider the technical and economic feasibility of alternate responses, the practicality of stopping the further release of the substance, and the risks and benefits of continued mining operations. The department shall designate the appropriate response, except that, notwithstanding s. 160.21 (3) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and satisfies the requirements of s. 160.23 (4) and (6). The department may determine that no response is necessary and that an exemption is not required when the requirements of s. NR 140.24 (5) (a) or (b), Wis. Adm. Code are met.

AB426-ASA1,151,17 (6) Response concerning enforcement standards. (a) In accordance with s. NR 140.26 (1) and (2), Wis. Adm. Code, the department shall evaluate the range of responses proposed by the operator based on the responses listed in Table 6 of s. NR 140.26, Wis. Adm. Code, when an enforcement standard or an alternative concentration limit to an enforcement standard is attained or exceeded and the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality at a point of standards application. In designating the appropriate response, the department shall evaluate the operator's proposed range of responses against those identified in Table 6 of s. NR 140.26, Wis. Adm. Code. The department shall designate the appropriate response, except that, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and all of the following apply:

AB426-ASA1,151,18 1. The department bases its decision upon reliable test data.

AB426-ASA1,151,21 2. The department determines, to a reasonable certainty, by the greater weight of the credible evidence, that no other remedial action would prevent the violation of the enforcement standard at the point of standards application.

AB426-ASA1,151,23 3. The department establishes the basis for the boundary and duration of the prohibition.

AB426-ASA1,152,3 4. The department ensures that any prohibition imposed is reasonably related in time and scope to maintaining compliance with the enforcement standard at the point of standards application.

AB426-ASA1,152,11 5. If the substance involved is naturally occurring, unless the substance involved is carcinogenic, teratogenic, or mutagenic in humans, the department considers the existence of the background concentration of the substance in evaluating response options to the noncompliance with the enforcement standard or alternative concentration limit for that substance and determines that the proposed prohibition will result in the protection of or substantial improvement in groundwater quality notwithstanding the background concentrations of the substance.

AB426-ASA1,152,17 (b) The department may only require a remedial action to be taken if the remedial action is reasonably related in time and scope to the substance, activity, or practice that caused the enforcement standard or alternative concentration limit to an enforcement standard to be attained or exceeded and the quality of groundwater to be statistically significantly different from either baseline water quality or background water quality at the point of standards application.

AB426-ASA1,153,4 (c) If nitrates or any substance of welfare concern attains or exceeds an enforcement standard and if the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline or background water quality, then the department shall evaluate whether the enforcement standard was attained or exceeded in whole or in part due to high background water quality concentrations of the substance and whether the additional concentrations represent a public welfare concern before it designates the appropriate response and, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and par. (a) 1. to 4. apply.

AB426-ASA1,153,6 (d) If compliance with an enforcement standard is achieved at a point of standards application, then sub. (5) applies.

AB426-ASA1,153,8 (7) Environmental analysis not required. An action under sub. (5) or (6) with respect to a specific site does not constitute a major state action under s. 1.11 (2).

AB426-ASA1,153,12 (8) Exemptions to groundwater quality standards. When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may grant an exemption from a groundwater quality standard and establish an alternative concentration limit to a groundwater quality standard.

AB426-ASA1,153,15 (9) Applicability of other law. Chapter NR 140, Wis Adm. Code, applies to mining operations and mining sites, including mining waste sites, only to the extent that it does not conflict with this section.

AB426-ASA1,153,21 295.65 Successors. (1) When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease, or otherwise, the department shall release the first operator from the duties imposed upon the first operator by this subchapter as to the mining operation and transfer the mining permit and any approvals under ss. 295.60, 295.605, and 295.61 to the successor operator if all of the following apply:

AB426-ASA1,153,23 (a) The successor operator agrees to comply with the requirements of this subchapter.

AB426-ASA1,154,2 (b) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any mining laws within the previous 10 years, posts any bond or other security required under s. 295.59, and assumes all responsibilities of all applicable approvals granted to the predecessor operator.

AB426-ASA1,154,4 (2) The department is not required to prepare an environmental impact statement or an environmental assessment for the purposes of this section.

AB426-ASA1,154,19 295.66 Cessation of mining or reclamation. If there is a cessation of mining or reclamation for 30 days or more that is not set forth in either the mining plan or the reclamation plan, the operator shall notify the department of the cessation within 48 hours of the cessation of mining and shall begin stabilization of the mining site. The department may require the operator to provide technical, engineering, and any other information that the operator believes shows that its actions to stabilize the mining site are adequate. If the department determines, after reviewing the information provided by the operator, that the proposed stabilization of the mining site will result in a substantial adverse impact to the environment, the department shall order the operator to begin additional measures to protect the environment, including, if the cessation is reasonably anticipated to extend for a protracted period of time, reclamation according to the reclamation plan or part of the reclamation plan. Usual and regular shutdown of operations on weekends, for maintenance or repair of equipment or facilities, or for other customary reasons do not constitute a cessation of mining.

AB426-ASA1,154,23 295.67 Determination of abandonment of mining. (1) Except as provided in sub. (2), abandonment of mining occurs if there is a cessation of mining, not set forth in an operator's mining plan or reclamation plan or by any other sufficient written or constructive notice, extending for more than 6 consecutive months.

AB426-ASA1,154,24 (2) Abandonment of mining does not occur if all of the following apply:

AB426-ASA1,155,2 (a) The cessation of mining is due either to labor strikes or to unforeseen developments such as adverse market conditions.

AB426-ASA1,155,4 (b) The cessation of mining does not continue beyond the time, not to exceed 5 years, specified by the department.

AB426-ASA1,155,6 (c) The mining site is maintained in an environmentally stable manner during the cessation of mining.

AB426-ASA1,155,8 (d) The reclamation of the mining site continues according to the reclamation plan during the cessation of mining to the extent practicable.

AB426-ASA1,155,18 295.68 Certificates of completion and release of security. (1) Upon the petition of the operator, but not less than 4 years after notification to the department by the operator of the completion of the reclamation plan or not less than one year after notification to the department by the operator of the completion of the reclamation plan as to a portion of the mining site, if the department finds that the operator has completed reclamation of any portion of the mining site in accordance with the reclamation plan and this subchapter, the department shall issue a certificate of completion setting forth a description of the area reclaimed and a statement that the operator has fulfilled its duties under the reclamation plan as to that area.

AB426-ASA1,155,24 (2) Upon the issuance of any certificate of completion under sub. (1) for any portion of the mining site, but not for the entire mining site, the department shall allow the operator to reduce the amount of the bond or other security provided under s. 295.59 (1) to an amount equal to the estimated cost of reclamation of the portion of the mining site that is disturbed or for which reclamation has been completed but no certificate of completion has been issued.

AB426-ASA1,156,6 (3) Upon issuance of a certificate or certificates of completion of reclamation for the entire mining site, the department shall require the operator to maintain a bond or other security under s. 295.59 (1) equal to at least 10 percent of the cost to the state of reclamation of the entire mining site, except that if the mining site in the mining plan is less than 10 acres, the department may release the bond or other security after issuance of the certificate of completion for the entire mining site.

AB426-ASA1,156,10 (4) After 10 years after the issuance of a certificate or certificates of completion for the entire mining site, the department shall release the remaining bond or other security provided under s. 295.59 (1) if the department finds that the reclamation plan has been complied with.

AB426-ASA1,156,25 295.69 Termination of proof of financial responsibility for long-term care of mining waste site. (1) One year after closure, and annually thereafter until the department terminates the obligation to maintain proof of financial responsibility for long-term care of a mining waste site under sub. (2) (c), an operator who has carried out all necessary long-term care during the preceding year, may apply to the department for a reduction in the amount of the proof of financial responsibility provided under s. 295.59 (2m) equal to the costs of long-term care for that year. The operator shall provide an itemized list of costs incurred. If the department determines that the costs incurred are in accordance with the long-term care requirements in the approved waste site feasibility study and plan of operation and that adequate funds exist to complete required long-term care for the remainder of the 40-year period on which the amount of the proof of financial responsibility was originally determined, the department shall authorize in writing a reduction in the amount of proof of financial responsibility provided. The department shall make its determinations within 90 days of an application.

AB426-ASA1,157,10 (2) (a) An operator may apply to the department for termination of its obligation to maintain proof of financial responsibility for long-term care of the mining waste site under s. 295.59 (2m) at any time after the mining waste site has been closed for 20 years by submitting an application that demonstrates that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment. The burden is on the operator to prove by a preponderance of the evidence that continuation of the obligation to maintain proof of financial responsibility for long-term care is not necessary for adequate protection of public health or the environment.

AB426-ASA1,157,19 (b) Within 30 days of receiving an application under par. (a), the department shall provide notice to the public of the application for termination of the obligation to maintain proof of financial responsibility for long-term care. In the notice, the department shall invite the submission of written comments by any person on the application within 30 days of the day on which the notice is published. The department shall provide the notice by publishing a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the mining waste site. The department shall also send the notice to the operator.

AB426-ASA1,158,2 (c) Within 120 days of the day on which the department publishes the notice under par. (b), the department shall determine either that proof of financial responsibility for long-term care of the mining waste site is no longer required, in which case the applicant is relieved of the responsibility of providing proof of financial responsibility for long-term care, or that proof of financial responsibility for long-term care of the mining waste site is still required, in which case the applicant may not submit another application under par. (a) until at least 5 years have elapsed since the previous application.

AB426-ASA1,158,12 295.695 Inspections by the department. (1) Any duly authorized officer, employee, or representative of the department who has received the safety training under 30 CFR 48.31 may enter and inspect any property, premises, or place on or at which any mining operation or facility is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this subchapter and the provisions of chs. 281, 283, 285, 289, 291, 292, and 299 and rules promulgated under those chapters that are applicable to the mining operation. No person may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials.

AB426-ASA1,158,14 (2) No person may obstruct, hamper, or interfere with any inspection authorized in sub. (1).

AB426-ASA1,158,17 (3) The department shall furnish to the operator a written report on any inspection setting forth all observations, relevant information, and data that relate to compliance status.

AB426-ASA1,158,21 295.73 Fees. (1) (a) Except as provided in par. (b), an applicant for a mining permit is not required to pay any application or filing fee for any approval other than a mining permit, notwithstanding any fee required under ch. 23, 29, 30, 169, 281, 283, 285, 289, or 291, or rules promulgated under those chapters.

AB426-ASA1,158,23 (b) An applicant for a mining permit shall pay any fee required under s. 281.343 (3) (c) 1.

AB426-ASA1,159,3 (3) (a) The department shall assess an applicant a fee equal to its costs for evaluating the mining project, including the costs for consultants retained by the department to evaluate the application for the mining permit and the application for any other approval and to perform environmental analysis under s. 1.11 or $2,000,000, whichever is less.

AB426-ASA1,159,4 (b) The applicant shall pay fees as follows:

AB426-ASA1,159,7 1. One hundred thousand dollars shall be paid at the time that the bulk sampling plan is filed under s. 295.45 or at the time that the notice of the intention to file a mining permit application is filed, whichever is first.

AB426-ASA1,159,10 2. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 1. has been fully allocated against actual costs.

AB426-ASA1,159,13 3. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 2. has been fully allocated against actual costs.

AB426-ASA1,159,16 4. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 3. has been fully allocated against actual costs.

AB426-ASA1,159,19 5. Two hundred fifty thousand dollars when the department provides cost information demonstrating that the payment under subd. 4. has been fully allocated against actual costs.

AB426-ASA1,159,24 (b) After the department approves or denies the application for a mining permit or, if the applicant withdraws the application for a mining permit, after the applicant withdraws the application, the department shall refund to the applicant any amount paid by the applicant under par. (a) but not fully allocated against the department's actual costs.

AB426-ASA1,160,3 (4) Subchapter VI of ch. 289 does not apply to mining waste disposed of in a mining waste site covered by a mining permit, except that an operator shall pay the fees specified in ss. 289.63 (4), 289.64 (3), and 289.67 (1) (d).

AB426-ASA1,160,7 295.75 Effect of other laws. (1) Except as provided in sub. (2), if there is a conflict between a provision in this subchapter and a provision in ch. 23, 29, 30, 160, 169, 281, 283, 285, 289, or 291 or in a rule promulgated under one of those chapters, the provision in this subchapter controls.

AB426-ASA1,160,9 (2) (a) If there is a conflict between a provision in this subchapter and a provision in s. 281.343, the provision in s. 281.343 controls.

AB426-ASA1,160,11 (b) If there is a conflict between a provision in this subchapter and a provision in s. 281.346, the provision in s. 281.346 controls, except as provided in s. 295.57 (9).

AB426-ASA1,160,14 295.77 Review. (1) Notwithstanding s. 227.42, no person is entitled to a contested case hearing on a decision by the department under this subchapter or on a decision by the department relating to the issuance of an approval.

AB426-ASA1,160,19 (2) Judicial review of a decision described in sub. (1) is the exclusive method for challenging the decision. The court shall base review of a decision described in sub. (1) on the administrative record before the department. The scope of the review is that specified in s. 227.57. No judicial review is available before the department issues the final decision on an approval.

AB426-ASA1,160,23 295.78 Mining and reclamation; orders. (1) (a) If the department finds a violation of law or any unapproved deviation from the mining plan, reclamation plan, or mining waste site feasibility study and plan of operation at a mining site under a mining permit, the department shall do one of the following:

AB426-ASA1,161,3 1. Issue an order requiring the operator to comply with the law, mining plan, reclamation plan, or mining waste site feasibility study and plan of operation within a specified time.

AB426-ASA1,161,5 2. Require the alleged violator to appear before the department for a hearing and answer the department's charges.

AB426-ASA1,161,6 3. Request the department of justice to initiate action under s. 295.79.

AB426-ASA1,161,10 (b) Any order issued under par. (a) 1. following a hearing takes effect immediately. Any other order takes effect 10 days after the date the order is served, unless the person named in the order requests in writing a hearing before the department within the 10-day period.