Amendment ASA2-AB426

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO 2011 ASSEMBLY BILL 426

January 26, 2012 - Offered by Representative Bewley.

AB426-ASA2,1,6 An Act to amend 70.375 (2) (a), 70.375 (5) (intro.), 70.375 (6), 70.395 (2) (dc) 1., 70.395 (2) (dc) 2., 70.395 (2) (dc) 3., 293.32, 293.33 (3), 293.49 (1) (a) 3. and 293.51 (3); and to create 70.375 (7), 293.01 (4e), 293.01 (4m), 293.39 (4) and (5) and 293.495 of the statutes; relating to: environmental review of proposed iron mines, the process for issuance of mining permits and other approvals for iron mines, and taxes imposed on iron mining operations.

Analysis by the Legislative Reference Bureau

Permitting process for iron mines

Overview

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 done so.

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 environment.

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 following provisions:

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:

AB426-ASA2, s. 1 Section 1. 70.375 (2) (a) of the statutes is amended to read:

AB426-ASA2,5,9 70.375 (2) (a) In Except as provided in sub. (7), with respect to mines not in operation on November 28, 1981, there is imposed upon persons engaged in mining metalliferous minerals in this state a net proceeds occupation tax effective on the date on which extraction begins to compensate the state and municipalities for the loss of valuable, irreplaceable metalliferous minerals. The amount of the tax shall be determined by applying the rates established under sub. (5) to the net proceeds of each mine. The net proceeds of each mine for each year are the difference between the gross proceeds and the deductions allowed under sub. (4) for the year.

AB426-ASA2, s. 2 Section 2. 70.375 (5) (intro.) of the statutes is amended to read:

AB426-ASA2,5,13 70.375 (5) Rates. (intro.) The Except as provided in sub. (7), the tax to be assessed, levied and collected upon persons engaging in mining metalliferous minerals in this state shall be computed at the following rates:

AB426-ASA2, s. 3 Section 3. 70.375 (6) of the statutes is amended to read:

AB426-ASA2,6,18 70.375 (6) Indexing. For Except as provided in sub. (7), for calendar year 1983 and corresponding fiscal years and thereafter, the dollar amounts in sub. (5) and s. 70.395 (1) and (2) (d) 1m. and 5. a. and (dg) shall be changed to reflect the percentage change between the gross national product deflator for June of the current year and the gross national product deflator for June of the previous year, as determined by the U.S. department of commerce as of December 30 of the year for which the taxes are due, except that no annual increase may be more than 10%. For calendar year 1983 and corresponding fiscal years and thereafter until calendar year 1997 and corresponding fiscal years, the dollar amounts in s. 70.395 (1m), 1995 stats., shall be changed to reflect the percentage change between the gross national product deflator for June of the current year and the gross national product deflator for June of the previous year, as determined by the U.S. department of commerce as of December 30 of the year for which the taxes are due, except that no annual increase may be more than 10%. The revised amounts shall be rounded to the nearest whole number divisible by 100 and shall not be reduced below the amounts under sub. (5) on November 28, 1981. Annually, the department shall adopt any changes in dollar amounts required under this subsection and incorporate them into the appropriate tax forms.

AB426-ASA2, s. 4 Section 4. 70.375 (7) of the statutes is created to read:

AB426-ASA2,6,25 70.375 (7) Per ton rate. (a) Notwithstanding subs. (2), (5), and (6), for mines in operation after December 31, 2011, the tax assessed, levied, and collected from a person engaged in mining ferrous minerals in this state is an amount equal to $2.38 for each 2,240 pounds of mining product sold, based on the average annual amount sold during the current year and the previous 2 years, not including any year in which no ferrous minerals are extracted in this state.

AB426-ASA2,7,6 (b) Beginning in 2013, and in each year thereafter, the department shall change the dollar amounts under par. (a) and s. 70.395 (2) (dc) 1., 2., and 3. to reflect the percentage change between the gross domestic product deflator for June of the current year and the gross domestic product deflator for June of the previous year, as determined by the federal department of commerce on December 30 of the year in which the taxes are due.

AB426-ASA2, s. 5 Section 5. 70.395 (2) (dc) 1. of the statutes is amended to read:

AB426-ASA2,7,12 70.395 (2) (dc) 1. Each person intending to submit an application for a mining permit shall pay $50,000 $100,000, as adjusted under s. 70.375 (7) (b), to the department of revenue for deposit in the investment and local impact fund at the time that the person notifies the department of natural resources under s. 293.31 (1) or 293.495 (2) of that intent.

AB426-ASA2, s. 6 Section 6. 70.395 (2) (dc) 2. of the statutes is amended to read:

AB426-ASA2,7,16 70.395 (2) (dc) 2. A person making a payment under subd. 1. shall pay an additional $50,000 $100,000, as adjusted under s. 70.375 (7) (b), upon notification by the board that the board has distributed 50% of the payment under subd. 1.

AB426-ASA2, s. 7 Section 7. 70.395 (2) (dc) 3. of the statutes is amended to read:

AB426-ASA2,7,21 70.395 (2) (dc) 3. A person making a payment under subd. 2. shall pay an additional $50,000 $100,000, as adjusted under s. 70.375 (7) (b), upon notification by the board that the board has distributed all of the payment under subd. 1. and 50% of the payment under subd. 2.

AB426-ASA2, s. 8 Section 8. 293.01 (4e) of the statutes is created to read:

AB426-ASA2,7,25 293.01 (4e) "Ferrous mineral" means an ore or earthen material in natural deposits in or on the earth that primarily exists in the form of an iron oxide, including taconite and hematite.

AB426-ASA2, s. 9 Section 9. 293.01 (4m) of the statutes is created to read:

AB426-ASA2,8,4 293.01 (4m) "Ferrous mining" means the mining of ferrous minerals at a mining site where the department determines that it is not likely that any of the disturbed areas will contain significant amounts of sulfide minerals.

AB426-ASA2, s. 10 Section 10. 293.32 of the statutes is amended to read:

AB426-ASA2,8,11 293.32 Prospecting and mining fees. (1) When a person gives notice under s. 293.31 (1) or 293.495 (2), the person shall pay a fee established by the department by rule designed to cover the costs incurred by the department in connection with the proposed prospecting or mining during the year following receipt of the notice, other than any costs related to the environmental impact statement for the proposed prospecting or mining.

AB426-ASA2,8,19 (2) The department shall annually compare the fees paid under this section and under chs. 30, 280 to 292 and 295 to 299 in connection with proposed prospecting or mining for which notice has been given under s. 293.31 (1) or 293.495 (2) with the costs incurred by the department in connection with that proposed prospecting or mining, including the costs incurred under chs. 30, 280 to 292 and 295 to 299 but excluding costs related to the environmental impact statement. If the costs incurred exceed the fees paid, the person who notified the department shall pay a fee equal to the amount by which the costs exceed the fees previously paid.

AB426-ASA2,9,6 (3) When the department issues or denies a prospecting or mining permit or when a person who gave notice under s. 293.31 (1) or 293.495 (2) ceases to seek approval of the proposed prospecting or mining project, the department shall compare the fees paid under this section and under chs. 30, 280 to 292 and 295 to 299 in connection with the proposed prospecting or mining with the costs incurred by the department in connection with the proposed prospecting or mining, including the costs incurred under chs. 30, 280 to 292 and 295 to 299 but excluding costs related to the environmental impact statement. If the costs incurred are less than the fees paid, the department shall pay the person who gave notice the amount by which the fees exceed the costs. If the costs incurred exceed the fees paid, the person who notified the department shall pay a final fee equal to the amount by which the costs exceed the fees previously paid.

AB426-ASA2, s. 11 Section 11. 293.33 (3) of the statutes is amended to read:

AB426-ASA2,9,13 293.33 (3) Persons giving notice under s. 293.31 (1) or 293.495 (2) shall thereafter appoint a liaison person to any committee established under sub. (1) or (2), and shall provide such reasonable information as is requested by the committee. Operators and persons giving notice under s. 293.31 or 293.495 (2) shall thereafter make reasonable efforts to design and operate mining operations in harmony with community development objectives.

AB426-ASA2, s. 12 Section 12. 293.39 (4) and (5) of the statutes are created to read:

AB426-ASA2,9,17 293.39 (4) (a) A person proposing to engage in ferrous mining shall prepare and submit to the department an environmental impact report for the ferrous mining project.

AB426-ASA2,9,22 (b) The department shall determine whether an environmental impact report submitted under par. (a) or (c) is complete no later than 30 days after receiving the environmental impact report. The department shall notify the person submitting the environmental impact report of its determination no later than 5 days after making the determination.

AB426-ASA2,9,24 (c) If the department determines that an environmental impact report submitted under par. (a) is incomplete, the person proposing to engage in ferrous mining shall prepare and submit to the department a revised environmental impact report for the ferrous mining project.

AB426-ASA2,10,12 (d) No more than 30 days after providing notification under par. (b) that an environmental impact report is complete, the department shall prepare a draft scoping statement consisting of at least the following: a description of known governmental approvals or reviews required for the ferrous mining project; a description of the issues to be covered in the environmental impact statement; alternatives that will be addressed in the environmental impact statement; identification of areas potentially affected by the project and by related actions; and identification of necessary studies requiring compilation of existing information or the development of new data that can be generated within a reasonable amount of time and at a reasonable cost.

AB426-ASA2,10,16 (e) No more than 10 days after completing its responsibilities under par. (d), the department shall publish a class 1 notice, under ch. 985, in a newspaper with general circulation in the area in which the proposed site is located and in the official state newspaper, that includes all of the following:

AB426-ASA2,10,17 1. The name and location of the proposed ferrous mining project.

AB426-ASA2,10,18 2. A brief description of the proposed project.

AB426-ASA2,10,20 3. The location at which copies of the environmental impact report and draft scoping statement are available for review.

AB426-ASA2,10,22 4. The description of the opportunity to comment on the appropriate scope of the environmental impact statement for the project.

AB426-ASA2,10,24 5. A statement that the period for written comment expires 30 days after the date of publication of the notice.

AB426-ASA2,10,25 6. The procedures for commenting.

AB426-ASA2,11,1 7. The date, time, and place of the public informational meeting under par. (g).

AB426-ASA2,11,7 (f) The department shall also provide the notice under par. (e) to the person who submitted the environmental impact report, the U.S. army corps of engineers, the federal environmental protection agency; the U.S. fish and wildlife service, the state historical society, any federally recognized American Indian tribe or band that may be affected by the proposed project, and any local governmental unit in which the project will take place.

AB426-ASA2,11,10 (g) At least 10 days, but not more than 20 days after publication of the notice under par. (e), the department shall hold at least one public informational meeting to discuss the scope of the environmental impact statement.