2011 - 2012 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO 2011 ASSEMBLY BILL 426
January 26, 2012 - Offered by Representative Bewley.
1An Act to amend
70.375 (2) (a), 70.375 (5) (intro.), 70.375 (6), 70.395 (2) (dc) 1., 2
70.395 (2) (dc) 2., 70.395 (2) (dc) 3., 293.32, 293.33 (3), 293.49 (1) (a) 3. and 3
293.51 (3); and to create
70.375 (7), 293.01 (4e), 293.01 (4m), 293.39 (4) and (5) 4
and 293.495 of the statutes; relating to: environmental review of proposed iron
5mines, the process for issuance of mining permits and other approvals for iron
6mines, and taxes imposed on iron mining operations.
Analysis by the Legislative Reference Bureau
Permitting process for iron mines
Under current law, the Department of Natural Resources (DNR) regulates
mining for metallic minerals. The laws under which DNR regulates metallic mining
apply to mining for ferrous minerals (iron mining) and mining for nonferrous
minerals, such as copper or zinc. Under current law, a person who proposes to mine
for metallic minerals must obtain a mining permit and any other permit, license,
certification, or other authorization (approval) that is required under the
environmental and natural resources laws other than the mining laws, for example,
an air pollution control permit or a water quality certification for wetlands.
This substitute amendment changes the process for reviewing mining permit
applications and applications for other DNR approvals for iron mining, except that
the changes do not apply if DNR determines that it is likely that any of the disturbed
areas will contain significant amounts of sulfide minerals. The substitute
amendment does not change substantive standards applicable to iron mining under
current environmental or natural resources laws.
Notice of intent
Current law requires a person who intends to submit an application for a
metallic mining permit to notify DNR before collecting data intended to be used to
support the permit application. The substitute amendment requires a person who
intends to submit an application for an iron mining permit to notify DNR at least 12
months before submitting the application for the mining permit or an environmental
impact report, whichever is earlier, rather than before collecting data.
Coordination of mining permit and other applications; master hearing
Under current law, the process for reviewing mining permit applications also
applies to applications for other DNR approvals for the proposed mine, that is, the
processing of the applications is coordinated. Under the substitute amendment, the
process for reviewing an application for an iron mining permit is not coordinated
with the review of applications for other DNR approvals required for an iron mine.
Instead the current process for reviewing an application not related to mining
applies for each other kind of DNR approval.
Current law requires a person who proposes to conduct metallic mining to have
applied for other DNR approvals and for any necessary zoning approvals before
applying for a mining permit. Under the substitute amendment, this requirement
does not apply to proposed iron mining.
Under current law, DNR holds one master hearing on the application for the
mining permit, the environmental impact statement (EIS), and, generally, the
applications for all other DNR approvals before DNR acts on the applications for the
permit and other approvals. The master hearing includes a public informational
hearing and a contested case hearing. The substitute amendment does not provide
for a master hearing for proposed iron mining, instead, a contested case hearing is
available on each application for a DNR approval, as provided under this state's
administrative procedure laws.
Iron mining permit process
The substitute amendment requires DNR to determine whether an application
for an iron mining permit is complete within 30 days after receiving the application,
except that the period may be extended with the consent of the applicant. After DNR
notifies the applicant that the permit application is complete, the applicant must
publish a notice about the proposed iron mining in a newspaper in the area of the
proposed mine once a week for four successive weeks and then notify DNR that it has
As mentioned above, current law requires DNR to consider the application for
a metallic mining permit as part of a required master hearing.
Under the substitute amendment, within 30 days after the publication of the
last notice about a proposed iron mine, a person owning property that will be affected
by the proposed mine or a federal, state, or local governmental agency with
responsibilities affected by the proposed mine may file objections to the mining
permit application, in which case, DNR must hold a hearing no more than 30 days
after receiving the objections. DNR may hold a hearing without receiving objections
if it determines that a hearing is necessary to protect public health, safety, or the
Current law does not specify a time, after the application for a metallic mining
permit is filed, within which DNR must act on the permit application. It does require
the mining master hearing to be held between 120 days and 180 days after DNR
issues the EIS for the proposed mine and requires DNR to act on the permit within
90 days after the completion of the record for the public hearing.
This substitute amendment requires DNR to act on an application for an iron
mining permit no later than 120 days after being notified that the applicant has
complied with the requirement to publish notice or, if a hearing is held, 120 days after
holding the hearing, except that DNR may not act on the application for the iron
mining permit before it has determined that the EIS is adequate.
Environmental review process for iron mines
Current law requires DNR to prepare an EIS for every proposed metallic mine.
An EIS contains detailed information about the environmental impact of a proposed
project, including any adverse environmental effects that cannot be avoided if the
proposal is implemented, alternatives to the proposed project, the beneficial aspects
of the proposal, and the economic advantages and disadvantages of the proposal.
The substitute amendment retains the requirement that DNR prepare an EIS
for every proposed iron mine.
Under current law, when a person applies for a permit or other approval for
which DNR is required to complete an EIS, DNR is generally authorized to require
the applicant to prepare an environmental impact report (EIR) that discloses
environmental impacts of the proposed project to assist DNR in preparing the EIS.
The substitute amendment requires the applicant for mining permit for an iron mine
to prepare an EIR.
Under current law, the EIS is prepared and reviewed as part of the metallic
mining permit process described above. The law requires DNR to prepare a
preliminary EIS and to hold at least one informational meeting on the preliminary
EIS within 60 days of its issuance and before conducting the master hearing.
The substitute amendment establishes a process and timeline for the
preparation and review of an EIS for proposed iron mining, including all of the
1. DNR must determine whether an EIR is adequate not later than 30 days
after receiving the EIR and must notify the applicant no more than five days after
making that determination.
2. DNR must prepare a draft statement of the scope of matters to be considered
in the EIS no more than 30 days after providing the notice under item 1.
3. DNR must publish public notice about the proposed mine and the proposed
scoping statement no more than ten days after preparing the draft scoping statement
and provide the notice to specified federal, local, and tribal governmental bodies.
4. DNR must hold at least one public informational meeting to discuss the scope
of the EIS.
5. DNR must issue its decision on the scope of the EIS no more than 45 days
after publishing the notice under item 3.
6. No later than 30 days after issuing the scoping decision, DNR must submit
to the applicant a proposed agreement for payment of its costs for preparing the EIS.
The applicant may request changes in the proposed cost agreement. If, within 30
days after DNR submits the proposed cost agreement, DNR and the applicant have
not signed a cost agreement, either party may refer the matter to the secretary of
administration for resolution.
7. The applicant must pay half of the amount it is required to pay under the
cost agreement no later than ten days after finalizing the cost agreement.
8. No later than 45 days after receiving that payment, DNR must publish a
notice containing a summary of the scoping decision.
9. After publishing the notice, DNR prepares a preliminary EIS, provides
notice of completion of the preliminary EIS, and holds a public informational
meeting on the adequacy of the preliminary EIS.
10. After the meeting, DNR prepares a final EIS, taking into consideration the
comments on the preliminary version, publishes notice of the final EIS, and accepts
written comments on the adequacy of the final EIS.
11. DNR must determine whether the final EIS is adequate within 280 days
after publication of the notice under item 8., except that the deadline may be
extended by consent of the applicant or by the governor for good cause.
12. If DNR determines that the EIS is inadequate, it must prepare an adequate
EIS within 60 days of that determination.
The substitute amendment prohibits DNR from making final decisions on any
approvals for the iron mine that were considered in the EIS process, including the
mining permit, before the EIS is determined to be adequate. DNR must generally
make final decisions on those approvals within 90 days after the determination of
adequacy, but the deadline may be extended with the consent of the applicant and
the deadline does not apply if a longer period is required for an approval by federal
law or other state law.
Net proceeds occupation tax
Under current law, the state imposes a net proceeds occupation tax on the
mining of metallic minerals in this state. The tax is based, generally, on a percentage
of net income from the sale of ore or minerals after certain mining processes have
been applied to the ore or minerals. The tax rates are annually adjusted to reflect
the change in gross national product. Gross national product, generally, measures
the output generated by U.S. enterprises, regardless of whether those enterprises
are located in this country.
Under current law, the revenue collected from the net proceeds occupation tax
is deposited into the investment and local impact fund. The fund is managed by the
local impact fund board. The revenue is then distributed to the counties and
municipalities in which metallic minerals are being mined. In addition to paying the
net proceeds occupation tax, a person who intends to apply for a mining permit must
make an additional three payments of $50,000 each to the investment and local
impact fund. Those payment amounts are not annually adjusted to reflect the
change in gross national product.
Under the substitute amendment, instead of paying a net proceeds occupation
tax based on net income, a person who is mining ferrous minerals in this state would
pay a tax equal to $2.38 for each 2,240 pounds of mining product sold, based on a
three-year average. The tax rate would be annually adjusted to reflect the change
in the gross domestic product. Gross domestic product, generally, measures the total
output produced within the United States, regardless of whether the output is
produced by foreign companies. Under the substitute amendment, a person who
intends to apply for a mining permit must also make an additional three payments
of $100,000 each to the investment and local impact fund. Those payment amounts
are annually adjusted to reflect the change in gross domestic product.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
(a) In Except as provided in sub. (7), with
respect to mines not in 3
operation on November 28, 1981, there is imposed upon persons engaged in mining 4
metalliferous minerals in this state a net proceeds occupation tax effective on the 5
date on which extraction begins to compensate the state and municipalities for the 6
loss of valuable, irreplaceable metalliferous minerals. The amount of the tax shall 7
be determined by applying the rates established under sub. (5) to the net proceeds 8
of each mine. The net proceeds of each mine for each year are the difference between 9
the gross proceeds and the deductions allowed under sub. (4) for the year.