LRB-3520/1
RCT/MGG/RK/JK:kj/nn/cs:rs
2011 - 2012 LEGISLATURE
December 14, 2011 - Introduced by
Committee on Jobs, Economy and Small
Business. Referred to Committee on Jobs, Economy and Small Business.
AB426,2,2
1An Act to repeal 107.001 (2) and 293.01 (8);
to renumber and amend 30.123
2(8) (c) and 87.30 (2);
to amend 20.370 (2) (gh), 20.455 (1) (gh), 20.566 (7) (e),
320.566 (7) (v), 29.604 (4) (intro.), 29.604 (4) (c) (intro.), 30.12 (3m) (c) (intro.),
430.133 (2), 30.19 (4) (c) (intro.), 30.195 (2) (c) (intro.), 44.40 (5), 70.395 (1e),
5107.001 (1), 107.01 (intro.), 107.01 (2), 107.02, 107.03, 107.04, 107.11, 107.12,
6107.20 (1), 107.20 (2), 107.30 (1), 107.30 (18), 107.30 (20), 160.19 (12), 196.491
7(4) (b) 2., 281.65 (2) (a), 281.75 (17) (b), 287.13 (5) (e), 289.35, 289.62 (2) (g) 2.
8and 6., 292.01 (1m), chapter 293 (title), 293.01 (5), 293.01 (7), 293.01 (9), 293.01
9(12), 293.01 (18), 293.01 (25), 293.21 (1) (a), 293.25 (2) (a), 293.25 (4), 293.37 (4)
10(b), 293.47 (1) (b), 293.50 (1) (b), 293.50 (2) (intro.), 293.50 (2) (a), 293.50 (2) (b),
11293.51 (1), 293.65 (3) (a), 293.65 (3) (b), 293.86, chapter 295 (title), 295.16 (4)
12(f), 299.85 (7) (a) 2. and 4., 299.95, 323.60 (5) (d) 3. and 710.02 (2) (d); and
to
13create 20.370 (2) (gi), 29.604 (7m), 31.23 (3) (e), 87.30 (2) (b), 293.01 (12m),
14subchapter III of chapter 295 [precedes 295.40] and 323.60 (1) (gm) of the
1statutes;
relating to: regulation of ferrous metallic mining and related
2activities, making an appropriation, and providing penalties.
Analysis by the Legislative Reference Bureau
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) and mining for nonferrous minerals, such
as copper or zinc.
This bill creates new statutes for regulating iron mining and modifies the
current laws regulating metallic mining so that they cover only mining for
nonferrous minerals.
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, wastewater discharge
permits, high capacity well approvals, and water quality certifications for wetlands.
Under the bill, a person who proposes to mine for iron ore must obtain an iron
mining permit. The person must obtain some of the approvals under other
environmental and natural resources laws, for example, wastewater discharge
permits, but the bill provides new approvals in lieu of some current approvals, for
example, high capacity well approvals and water quality certifications for wetlands.
The standards and procedures for granting, and the requirements related to, an iron
mining permit and the other new approvals differ in some respects from the
standards, procedures, and requirements under current law, as described below.
Current law requires DNR to promulgate rules specifying standards for
metallic mining and for the reclamation of mining sites. The rules relating to mining
must contain standards for grading and stabilization, backfilling, vegetative cover,
prevention of pollution resulting from leaching of waste materials, and prevention
of significant environmental pollution. The rules relating to reclamation must
contain provisions for disposal of wastes in disposal facilities licensed under the solid
waste laws or otherwise in an environmentally sound manner, for management of
runoff so as to prevent soil erosion, flooding, and water pollution, and for
minimization of disturbance to wetlands. DNR has promulgated rules on these
matters.
The bill places standards for iron mining and for the reclamation of iron mining
sites in the statutes, rather than requiring rule-making. The standards in the bill
are similar in many respects to DNR's current rules and are less stringent in other
respects.
Application for mining permit
Under current law, a person who intends to apply for a permit for mining for
metallic ore must notify DNR before collecting data intended to be used to support
the application. DNR is required to provide public notice when it receives such a
notification. After considering public comments, DNR must tell the person who filed
the notice of intent what information DNR believes is needed to support an
application for a mining permit. The person must submit the information as soon
as it is in final form.
This bill requires a person who is contemplating a mining project to provide
DNR with a general description of the proposed mining project. The description must
include a description of the mining site, including the nature, extent, and final
configuration of the proposed excavation and mining site and certain other
information including a map showing the boundaries of the area of land that will be
affected by the mining project and the names of each owner of the mining site. The
bill requires the person to include this information with the bulk sampling plan,
described below, or if the person does not file a bulk sampling plan, with the person's
notification to DNR of the person's intent to apply for an iron mining permit. The bill
requires DNR to conduct a public informational hearing on a proposed mining project
after receiving the general description, either as part of the hearing on approvals
required for bulk sampling or, if there is no such hearing, as a separate hearing.
This bill requires a person who intends to apply for an iron mining permit to
notify DNR of the intention to file the application and requires DNR to meet with the
applicant to make a preliminary assessment of the project's scope, to make an
analysis of alternatives, to identify potential interested persons, and to ensure that
the person intending to apply for an iron mining permit is aware of the approvals that
the person may be required to obtain. DNR must also ensure that the person is aware
of the requirements for submission of an environmental impact report and about the
information DNR will require to enable it to process the application for the mining
permit in a timely manner.
After the meeting, DNR must provide to the applicant any available
information relevant to the potential impact of the project on threatened or
endangered species and historic or cultural resources and any other information
relevant to impacts that are required to be considered in the environmental impact
statement.
Under current law, a person who wishes to obtain a permit for metallic mining
must submit an application to DNR that includes a mining plan, a reclamation plan,
information about the owners of the mining site, and information related to the
failure to reclaim mining sites and to any criminal convictions for violations of
environmental laws in the course of mining by persons involved in the proposed
mining. The application must also include evidence that the applicant has applied
for necessary approvals under applicable zoning ordinances and for any approvals
issued by DNR that are necessary to conduct the mining, such as air pollution
permits and wastewater discharge permits.
This bill includes similar provisions for the application for an iron mining
permit, except that the applicant may provide evidence that the applicant will apply,
rather than has applied, for necessary zoning approvals and other approvals issued
by DNR.
The required content of the mining plan for iron mining under the bill is similar
to that required under current statutes and DNR rules. The required content of the
reclamation plan for iron mining is also similar to that required under current law.
DNR's current rules require the applicant for a metallic mining permit to show
that the mining and reclamation will comply with specified minimum standards.
The bill requires showings by the applicant for an iron mining permit that differ in
some ways from DNR's rules. For example, the rules require a demonstration that
water runoff from the mining site will be managed so as to prevent soil erosion to the
extent practicable, flooding, damage to agricultural lands or livestock, damage to
wild animals, pollution of ground or surface waters, damage to public health, and
threats to public safety. The bill requires a showing that water runoff from an iron
mining site will be managed in compliance with any approval that regulates
construction site erosion control or storm water management.
Permitting process
Environmental impact statement
Current law requires DNR to prepare an environmental impact statement
(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. For a metallic mining
project, current law requires a description of significant long-term and short-term
impacts, including impacts after the mining has ended, on tourism, employment,
schools, social services, the tax base, the local economy, and "other significant
factors."
This bill requires DNR to prepare an EIS for every proposed iron mine. The bill
requires DNR to include a description of significant impacts on most of the same
matters as under current metallic mining law.
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.
Current law authorizes DNR to enter into an agreement with a person considering
applying to DNR for approval of a project that is large, complex, or environmentally
sensitive to provide preapplication services necessary to evaluate the environmental
impact of the project and to expedite the anticipated preparation of an EIS for the
project.
The bill requires the applicant for a mining permit to prepare an EIR.
The bill requires the applicant for a mining permit to submit the EIR with the
application for the mining permit.
Current law authorizes DNR to conduct the processes related to an EIS jointly
with other agencies who have responsibilities related to a proposed project.
The bill requires DNR to conduct its environmental review process for a
proposed iron mine jointly with other state agencies and requires the preparation of
one joint EIS. The bill requires DNR to conduct its environmental review process
jointly with any federal or local agency that consents to a joint process.
Current law requires DNR to hold at least one informational meeting on a
preliminary environmental report for a mining project before it issues the EIS. This
bill does not require such an informational meeting.
Mining hearing
Current law requires DNR to hold a hearing on an application for a metallic
mining permit. The hearing includes both a contested case hearing, with testimony
under oath and the opportunity for cross-examination, and a public informational
hearing. The law requires that the hearing cover the EIS and cover all other
approvals issued by DNR that are required for the mining project, to the extent
possible. Under current law, the provisions related to notice, hearing, and comment
in the metallic mining law apply to any other needed approval, unless the applicant
fails to make an application for an approval in time for it to be considered at the
hearing on the mining permit.
This bill requires DNR to hold a public informational hearing for a proposed
iron mining project. The hearing does not include a contested case hearing. The
hearing must cover the mining permit, the EIS, and all other approvals issued by
DNR that are required for the mining project, unless the application for an approval
is filed too late to allow the approval to be considered at the mining hearing. Under
the bill, the provisions related to notice, hearing, and comment in the iron mining law
apply to any other needed approval.
Deadlines; automatic approval
Current law does not specify a time, after the application for a mining permit
is filed, within which DNR must act on a metallic mining permit application. It does
require the mining hearing to be held between 120 days and 180 days after DNR
issues the EIS and requires DNR to act on the permit within 90 days after the
completion of the record for the public hearing.
The bill requires DNR to act on an application for an iron mining permit no
more than 360 days after the application is considered to be complete. Under the bill,
if the applicant submits the application for another approval within 60 days after the
application for the mining permit is considered to be complete, DNR must also act
on the application for that approval by the 360-day deadline. If the applicant files
the application for another approval more than 60 days after the application for the
mining permit is considered to be complete, the deadline for DNR's action on the
approval is extended by the number of days the application is late.
If DNR does not act within the deadline for acting on the application for an iron
mining permit, the application is automatically approved.
Under the bill, the application for a mining permit is considered to be complete
on the 30th day after DNR receives it, unless, before that day DNR provides the
applicant with written notification that the application does not include a mining
plan, reclamation plan, or waste site feasibility study and plan of operation that
contain the types of information required under the bill or that the applicant has not
submitted an EIR. DNR may not consider the quality of the information provided
in determining whether the application is complete.
The bill authorizes DNR to request additional information needed to process
the application for a mining permit after the application is considered to be complete,
but it may not delay the determination that the application is complete based on a
request for additional information.
Grant or denial of mining permit
Grounds for denial
Current law requires DNR to deny an application for a metallic mining permit
for a proposed surface mine if the site is unsuitable for surface mining. A site is
unsuitable for surface mining if the surface mining may reasonably be expected to
destroy or damage either: 1) habitats required for the survival of endangered species
of vegetation or wildlife that cannot be firmly reestablished elsewhere; or 2) unique
features of the land, as determined by state or federal designation, as, for example,
wilderness areas, national or state parks, archaeological areas, and other lands of
a type specified by DNR by rule, as unique or unsuitable for surface mining. DNR
has designated more than 150 specific scientific areas for the purposes of the
determination of unsuitability.
This bill requires DNR to deny an application for an iron mining permit under
the same standards for unsuitability as under current law, except that
archaeological areas and other areas designated by DNR as being unique or
unsuitable for surface mining are not considered for the purposes of determining
unsuitability.
Current law requires DNR to deny an application for a mining permit if the
mining operation is reasonably expected to cause any of the following: 1) hazards
resulting in irreparable damage to specified kinds of structures, such as residences,
schools, or commercial buildings, to public roads, or to other public property
designated by DNR by rule, if the damage cannot be prevented under the mining
laws, avoided by removal from the area of hazard, or mitigated by purchase or by
obtaining the consent of the owner; 2) irreparable environmental damage to lake or
stream bodies despite adherence to the metallic mining laws, unless DNR has
authorized the activity that causes the damage; 3) landslides or substantial
deposition in stream or lake beds that cannot be feasibly prevented; or 4) the
destruction or filling in of a lake bed.
The bill requires DNR to deny an application for an iron mining permit if the
mining operation is reasonably expected to cause any of the following: 1) hazards
resulting in irreparable damage to specified kinds of structures, such as residences,
schools, or commercial buildings, or to public roads, but not to other public property
designated by DNR by rule, if the damage cannot be prevented under the mining
laws, avoided by removal from the area of hazard, or mitigated by purchase or by
obtaining the consent of the owner; or 2) irreparable environmental damage to lake
or stream bodies despite adherence to the metallic mining laws, unless DNR has
authorized the activity that causes the damage. As to the bases described in 3) or 4)
above the bill requires DNR to deny the application unless the activity or occurrence
is authorized by DNR under an applicable approval such as a wetland water quality
certification, or a permit for a navigable water activity.
As under the current metallic mining laws, the bill requires DNR to deny a
mining permit if the applicant has violated and continues to fail to comply with this
state's mining laws. As also provided under current metallic mining law, the bill
contains requirements for the denial of an iron mining permit based on the failure
to reclaim mining sites and based on criminal convictions for violations of
environmental laws in the course of mining in the United States by persons involved
in the proposed iron mining.
Standards for approval
Under current law, if none of the grounds for denial of the application for a
metallic mining permit apply, DNR must issue the mining permit if it finds the
following: 1) the mining plan and reclamation plan are reasonably certain to result
in reclamation of the mining site as required by current law and DNR has approved
the mining plan; 2) the proposed mining operation will comply with all applicable air,
groundwater, surface water, and solid and hazardous waste management statutes
and rules; 3) the proposed mine will not endanger public health, safety, or welfare;
4) the proposed mine will result in a net positive economic impact in the area
expected to be most impacted by the mine; and 5) the proposed mining operation
conforms with all applicable zoning ordinances.
Under this bill, the standards for approval of an iron mining permit differ in
some respects from the standards under current law. Under the bill, if none of the
grounds for denial of the application for an iron mining permit apply, DNR must
issue an iron mining permit if it finds the following: 1) the mining plan and
reclamation plan are reasonably certain to result in reclamation of the mining site
as required by the provisions of this bill; 2) the applicant has committed to
conducting the proposed iron mining in compliance with the mining permit and any
other approvals issued by DNR; 3) the proposed iron mining is not likely to result in
substantial adverse impacts to public health, safety, or welfare; 4) the proposed iron
mine will result in a net positive economic impact in the area expected to be most
impacted by the mine; 5) the applicant will obtain all applicable zoning approvals;
and 6) the waste site feasibility study and plan of operation comply with the
provisions of this bill.
Review of DNR decisions
Currently, any person aggrieved by a decision of DNR under the metallic
mining laws may obtain a contested case administrative hearing under this state's
administrative procedure laws.
Under this bill, no person is entitled to a contested case hearing on a decision
by the DNR under the iron mining laws or a decision by DNR on any environmental
approval needed for iron mining or bulk sampling. Judicial review of such a decision,
on the administrative record before DNR, is the exclusive method for challenging the
decision.
Current law authorizes citizen suits against a person alleged to be in violation
of the metallic mining laws and against DNR when there is alleged to be a failure of
DNR to perform a duty under those laws.
The bill does not provide for citizen suits related to iron mining.
Wetlands
This bill makes various changes in current law relating to iron mining and
impacts to wetlands and establishes different requirements than those found under
current law. All of the changes explained below regarding wetlands apply to
wetlands that are impacted by iron mining.
Wetland water quality certification
Under the current permitting process there are two permitting procedures for
discharging dredged or fill material into a wetland depending on whether the
wetland is subjected to federal jurisdiction. Under federal law, activities involving
the discharge of dredged or fill material into waters subject to federal jurisdiction
must comply with certain guidelines contained in regulations promulgated by the
federal Environmental Protection Agency in order for a federal permit to be issued
by the U.S. Army Corps of Engineers (ACE). Wetlands are usually the type of waters
involved (federal wetlands). Wetlands that are exempt from federal jurisdiction are
those that are nonnavigable and isolated, intrastate waters. Current state law
regulates discharges and other activities in these wetlands (nonfederal wetlands).
Current law relating to wetlands also makes a distinction between wetlands
that are in, or in close proximity to, an area of special natural resource interest
(ASNRI wetlands) and wetlands that are outside these areas. Current law defines
"an area of special natural resource interest" as being an area that has significant
ecological, cultural, aesthetic, educational, recreational, or scientific values and
specifically lists certain areas, including Lake Michigan and Lake Superior, state
forests, and state parks.
Under current law, before ACE may issue a federal permit, DNR must issue a
water quality certification that certifies that the discharge complies with state water
quality standards applicable to wetlands. For a discharge into nonfederal wetlands,
DNR must issue a water quality certification that certifies that the discharge
complies with these water quality standards. In issuing water quality certification
for both federal wetlands and nonfederal wetlands, DNR may impose conditions that
must be met as part of the water quality certification.
This bill limits DNR's authority in imposing conditions for federal permits as
part of the water quality certification. If DNR determines that implementation of the
federal compensatory mitigation requirements will offset any significant adverse
impact to the wetlands or if for federal ASNRI wetlands avoidance and minimization
of adverse impacts has occurred to the extent practicable and any remaining
significant adverse impacts are offset by compensation or mitigation, DNR may not
impose any additional conditions. If DNR does not make this determination, DNR
may impose only the conditions necessary to offset significant adverse impacts that
are not offset by the federal compensatory mitigation requirements. The bill also
provides that DNR may not increase the number of acres to be mitigated under the
federal compensatory mitigation requirements.
For issuing a wetland water quality certification for nonfederal wetlands, if
DNR determines that impacts to the wetland will be avoided or minimized to the
extent practicable, any remaining impacts to nonfederal wetlands or an area of
special natural resource interest, may not be used as a basis for denying certification
if any remaining significant adverse impacts to the wetland or an area of special
natural resource interest will be offset by compensation or mitigation. Under the
bill, DNR must issue water quality certification for nonfederal wetlands if DNR
determines that all practicable measures will be taken to minimize the adverse
impacts to wetlands and any remaining significant adverse impacts are offset
through compensation or mitigation.
The bill requires that an applicant for a wetland water quality certification for
a nonfederal wetland submit a siting analysis as to various configurations for the
iron mining site to DNR for review. These are limited to configurations associated
with the proposed areas of iron deposits to be mined and areas contiguous to these
deposits. In reviewing the analysis, DNR must recognize limitations associated with
the proposed locations for iron mining, the need for waste sites and processing
facilities to be contiguous to the location of the iron deposits, and the presumption
that nonfederal wetlands will be impacted. If it is impracticable to avoid an impact
or use of a nonfederal wetland, the applicant shall identify in the analysis the
configurations that would result in impacts to the fewest acres. DNR then
determines which configuration will affect the fewest acres and evaluates how that
configuration will impact the functional values and water quality of the nonfederal
wetland.
Wetland water quality standards
Under rules promulgated by DNR, the state wetland water quality standards
require that various functional values of the wetlands be protected from adverse
impacts. These functional values include providing protection from flooding,
recharging groundwaters, providing habitat for wildlife, and providing protection to
shorelines from erosion. Current law also sets forth criteria to be used to assure the
maintenance or enhancement of these functional values. These criteria include
requiring that certain solids, debris, or toxic substances be absent. This bill
incorporates all of the functional values and criteria that are contained in the DNR
rules for water quality certifications for wetlands. The wetland water quality
standards under the bill require that the impacts must be minimized and that any
remaining significant impacts be offset by compensation or mitigation. The bill also
requires that in evaluating the significant adverse impacts, DNR must compare the
functional values of the wetlands that will be impacted by the mining site with other
wetlands and water bodies in the region.
Mitigation and compensation
Under current law, DNR is authorized, but is not required, to consider
mitigation in determining whether to grant a water quality certification or other
permit or approval affecting wetlands. Under current law, wetland mitigation
consists of a project that restores, enhances, or creates (improves) a wetland to offset
adverse impacts to other wetlands or that uses credits from a wetlands mitigation
bank. A wetlands mitigation bank is a system of accounting for wetland loss that
includes one or more sites where wetlands are improved to provide transferable
credits to be subsequently applied to offset adverse impacts to other wetlands.
Mitigation is based on a ratio of acres improved compared to the number of acres
adversely impacted. The bill requires DNR to consider mitigation or compensation
when issuing water quality certifications for both federal and nonfederal wetlands.
Under the bill, compensation allows for the offsetting of adverse impacts to
other water quality functions besides those in wetlands. Compensation may include
projects such as riparian restoration projects and shoreline stabilization projects if
such projects are at locations that are more than one-half mile from the mining site.
Under current law, the ratio of acres for purposes of mitigation requires that 1.5
acres of wetlands be improved to every one acre that is adversely impacted with
limited exception allowing the ratio to be one acre to one acre. The bill specifies that
the ratio for mitigation may not exceed 1.5 acres. Under current law, in calculating
the number of credits a person will receive in implementing mitigation, each acre
restored receives one credit, the range of credits for each acre enhanced is from no
credits to one credit, and each acre created receives one-half credit with a limited
exception. Under the bill, each acre restored, enhanced, or created receives at least
one credit.
Current law prohibits DNR from considering wetlands mitigation in reviewing
whether to grant a permit or other approval for a project that adversely affects an
area of special natural resource interest or an ASNRI wetland. Under the bill,
mitigation and compensation to offset significant adverse impacts to these areas and
ASNRI wetlands are allowed.
Under current law, mitigation must occur within one-half mile of the impacted
wetland (on-site). If DNR determines that it is not practicable or ecologically
preferable that the mitigation occur on-site, DNR shall allow mitigation to be
preformed as near as practicable to the location of the adversely impacted wetland.
Under the bill, if it is not practicable or ecologically preferable to conduct
compensation or mitigation at an on-site location or if there is insufficient wetland
acreage on-site, off-site compensation or mitigation may be performed. This may
include purchases of credits from a mitigation bank located anywhere in the state.
The bill also authorizes other persons to perform compensation or mitigation, subject
to DNR approval.
Exemptions
Under current law, artificial wetlands are exempt from the wetland water
quality standards unless DNR determines significant functional values are present.
This bill exempts these same artificial wetlands from the wetland water quality
standards and eliminates the exception to the exemption for wetlands with certain
significant functional values.
Under current law, certain activities in nonfederal wetlands are exempt from
the water quality certification requirements for wetlands. These include
maintenance of drainage and irrigation ditches, damaged parts of structures that are
in bodies of waters, and maintenance of certain temporary mining roads. Under
current law, these activities lose their exemption under certain circumstances, such
as using a wetland for a use for which it was not previous used, or conducting an
activity that may impair the flow of a body of water. Under the bill, very similar
exemptions apply to iron mining activities. However, the provision regarding losing
the exemption does not apply. Instead, the exemptions only apply if the person
conducting the activity minimizes the adverse effect to the environment.